Jurisprudence 2005 To 2017
LexInter | October 19, 2012 | 0 Comments

Jurisprudence 2005 To 2017

reading of Wednesday September 15, 2010

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
Full Text

Seen 1) the briefs, recorded on June 15, 18 and 21, 2010 at the litigation secretariat of the Council of State, presented for Mr. Jean-Hugues A, residing …, in application of article 23-5 of Ordinance No. 58-1067 of November 7, 1958; Mr. Jean-Hugues A asks the Council of State, in support of his appeal registered under number 340570 tending to annul the decision of March 16, 2010 by which the disciplinary chamber of the National Council of the Order des pharmaciens pronounced against him the sanction of the prohibition to practice pharmacy for two years to refer to the Constitutional Council the question of compliance with the rights and freedoms guaranteed by the Constitution of the provisions of articles L. 5124-1, L. 5124-3 and L.

Seen 2 °) registered under number 340571 on June 15, 2010 at the litigation secretariat of the Council of State the request presented for Mr. Jean-Hugues A, residing …; M. A requests that, on the basis of article R. 821-5 of the administrative justice code, be ordered the suspension of execution of the decision of March 16, 2010 by which the disciplinary chamber of the National Council of the Order pharmacists pronounced against him the sanction of the prohibition to practice pharmacy for two years and decided that the period of execution of this sanction would run from September 1, 2010 to May 31, 2012 and to the State charge a sum of 2,000 euros under Article L. 761-1 of the Code of Administrative Justice; he maintains that the two conditions placed on the granting of the stay are fulfilled; that the execution will entail for him consequences which are difficult to repair; that the means of unconstitutionality of the provisions of the code of public health on which the disciplinary chamber is based, which he will develop in a separate memory are serious; that, the de jure or de facto management of a company and in particular the fact of exercising the functions of director of a company does not constitute the exercise of another profession within the meaning of the provisions of Article L. 5125-2 of the public health code; that the licensed pharmacist does not disregard his obligation to personally exercise his profession laid down by the combined provisions of Articles L. 5125-20 and R. 4235-13 of the Public Health Code, simply because he lives abroad and is usually only present one week out of two at his dispensary; that the absent pharmacist may be absent as soon as another pharmacist or an assistant pharmacist is present and performs professional acts, the plea that he raised and to which it was not answered by the disciplinary chamber based on that a pharmacist was always present in his dispensary was not inoperative; that by confining itself to noting that at the time of the inspection he was residing abroad and was usually absent from his pharmacy, the disciplinary chamber disregarded the provisions of Articles L. 5125-20 and R 4235-13 of the public health code; that it gave insufficient reasons for its decision and did not characterize the bad faith of Mr. AT ; that pronouncing the ban to exercise pharmacy for two years, the disciplinary chamber applied a penalty disproportionate to the facts and distorted the facts of the case;
Having regard to the other documents in the files;

Having regard to the Constitution, in particular its Preamble and its article 61-1;

Considering the ordinance n ° 58-1067 of November 7, 1958;

Having regard to the public health code, in particular its articles L. 5124-1, L. 5124-3, L. 5125-1 and L. 5125-2;

Considering the code of administrative justice;

After hearing in public session:

– the report of Mr. Olivier Rousselle, State Councilor,

– the observations of the SCP Capron, Capron, lawyer of Mr. A and of the SCP Célice, Blancpain, Soltner, lawyer of the National Council of the order of pharmacists,

– the conclusions of Mrs. Catherine de Salins, public rapporteur;

The floor having been given again to SCP Capron, Capron, lawyer for Mr. A and to SCP Célice, Blancpain, Soltner, lawyer for the National Council of the Order of Pharmacists,

On priority questions of constitutionality:

Considering that the priority questions of constitutionality raised by Mr. A in support of part of his appeal for the annulment of the decision of March 16, 2010 by which the disciplinary chamber of the National Council of the Order of Pharmacists pronounced against him the sanction of the prohibition to practice pharmacy for two years and decided that this sanction would run from September 1, 2010 to May 31, 2012 and on the other hand his request for him to be suspension of the execution of this decision, relate to the same legislative provisions; whereas it is necessary to join them to rule there by a single decision;

Considering that by virtue of the first paragraph of article 23-5 of the ordinance of November 7, 1958 on the organic law on the Constitutional Council: The plea alleging that a legislative provision infringes the rights and freedomss guaranteed by the Constitution can be raised, including for the first time in cassation, during proceedings before the Council of State or the Court of Cassation (…); that it follows from the provisions of the 3rd paragraph of this same article that the Constitutional Council is seized of the priority question of constitutionality on the triple condition that the contested provision is applicable to the dispute or to the procedure, that it has not already been declared in conformity with the Constitution in the reasons and the operative part of a decision of the Constitutional Council, except change of the circumstances, and that it is new or has a serious character;

On the question of compliance with rights and freedomss guaranteed by the Constitution of the provisions of Articles L. 5124-1, L. 5124-3 and L. 5125-1 of the Public Health Code:

Considering that under article L. 5124-1 of the public health code: The manufacture, import, export and wholesale distribution of drugs, products and objects mentioned in article L. 4211 -1, the manufacture, import and distribution of experimental drugs, with the exception of gene therapy preparations and xenogeneic cell therapy preparations, as well as the operation of pharmaceutical specialties or other drugs, generators, kits or precursors defined in 8 °, 9 ° and 10 ° of article L. 5121-1 can only be carried out in pharmaceutical establishments governed by this chapter. ; that under Article L. 5124-3 of the same code: The opening of a pharmaceutical establishment, whatever its activity, is subject to an authorization issued by the French Agency for the Safety of Health Products. This authorization may, after formal notice, be suspended or withdrawn in the event of an infringement of the provisions of this book and of Book II of Part IV./ Any substantial modification of the elements of the initial authorization is subject to prior authorization. A decree in Council of State fixes the cases of substantial modification of the initial authorization. The other modifications are the subject of a declaration. and that under the terms of article L. 5125-1 of this code: A dispensary is understood to mean the establishment assigned to the retail dispensing of drugs, products and objects mentioned in article L. 4211-1 as well as to the execution of magistral or officinal preparations./ A pharmacy may entrust the execution of a preparation, by a written contract, to another pharmacy which is subject, for the exercise of this subcontracting activity, to a prior authorization issued by the director general of the regional health agency. / For certain categories of preparations, a pharmacy may, by a written contract, entrust the execution of a preparation to a pharmaceutical establishment authorized to manufacture drugs by the French Agency safety of health products. This subcontracting activity is the subject of an annual report sent by the pharmacist in charge of the pharmaceutical establishment to the general manager of the French Agency for the Sanitary Safety of Health Products. / These preparations are made in accordance with the best practices mentioned in Article L. 5121-5. ;

Considering that it results from the approximation of these provisions that the wholesale distribution of drugs is reserved by law to pharmaceutical establishments whose opening is subject to an authorization issued by the French Agency for the Sanitary Safety of Health Products and that this activity is prohibited for pharmacies whose exclusive purpose is the retail dispensing of the medicinal products and objects mentioned in Article L. 4211-1 of the Public Health Code and the execution of magistral or officinal preparations; whereas drugs, because of their effects on the human body, differ substantially from products sold in commerce; that the prohibition of the combination of the activity of wholesale distributor of medicinal products with that of dispensing operator is justified by the need to ensure the neutrality, quality and traceability of the dispensing of medicines to the public and the independence of the operator of dispensing pharmacies; that this prohibition thus meets the constitutional requirement of protection of public health and does not freedom to undertake and to freedom of trade and industry a disproportionate interference with the objective pursued; that the question of constitutionality raised, which is not new, does not present consequently a serious character;

On the question of compliance with the rights and freedoms guaranteed by the Constitution of the provisions of article L.5125-2 of the public health code:

Considering that under the terms of article L. 5125-2 of the public health code: The operation of a dispensary is incompatible with the exercise of another profession, in particular with that of doctor, veterinarian, midwife woman, dentist, even if the person concerned has the corresponding diplomas (…); that the law thus enacts an incompatibility between the operation of a dispensary pharmacy and the practice of another profession, without excluding for the operator the right to exercise an ancillary activity not having the nature of a profession ; that the purpose of this incompatibility is, on the one hand, to ensure the independence of the dispensary pharmacist and the prevention of conflicts of interest liable to alter the neutrality and quality of the delivery of medicinal products to the public, which, as has been said above, differ substantially from commercial products, and, on the other hand, to guarantee by the exclusive exercise of this profession, dispensation of medicines in accordance with the obligations imposed on him by the public health code; that this rule thus meets the constitutional requirement of protection of public health and does not freedom to undertake and to freedom of trade and industry a disproportionate interference with the objective pursued; that the question of constitutionality raised is not new and does not present a serious character;

Considering that it follows from the foregoing that, without it being necessary to refer to the Constitutional Council the priority questions of constitutionality invoked, the means based on the fact that Articles L. 5124-1, L. 5124-3, L. 5125-1 and L. 5125-2 of the public health code infringe the rights and freedoms guaranteed by the Constitution must be set aside;
On the conclusions tending to the suspension of operation presented in application no.340571:
Considering that under the first paragraph of article R. 821-5 of the code of administrative justice: The formation of judgment can, at the request of the author of the appeal, order that the execution of ” a judicial decision rendered as a last resort if this decision risks causing consequences that are difficult to repair and if the means invoked appear, in the state of the investigation, serious and capable of justifying, in addition to the annulment of the judicial decision , the reversal of the solution adopted by the trial judges. ;

Considering that it follows from what has been said above that none of the pleas invoked based on the unconstitutionality of the provisions of the public health code applied to Mr A appear, as they stand the investigation, serious and likely to justify, in addition to the annulment of the judgment under appeal, the reversal of the solution adopted by the trial judges;

Considering that Mr A also maintains that the de jure or de facto management of a company would not constitute the exercise of another profession within the meaning of the provisions of Article L. 5125-2 of the Public Health Code, that the licensed pharmacist does not disregard his obligation to personally exercise his profession laid down by the combined provisions of Articles L. 5125-20 and R. 4235-13 of the Public Health Code simply because he resides abroad and is present only one week out of two at his pharmacy and while his co-holder was present, so that the disciplinary chamber would have incorrectly qualified the facts of the case; it would have insufficiently motivated its decision and would not have characterized the bad faith of Mr. A; that by pronouncing the ban on practicing pharmacy for two years, it would have applied a disproportionate sanction and distorted the facts of the case; that these means do not appear more, in the state of the instruction, serious and likely to justify, besides the annulment of the judgment under appeal, the reversal of the solution adopted by the judges of the merits;

Considering that it follows from the foregoing that the request at the end of suspension of execution presented by Mr. A must be rejected;

On the conclusions tending to the application of the provisions of Article L. 761-1 of the Code of Administrative Justice presented in application no.340571:

Considering, on the one hand, that the National Council of the Order of Pharmacists, who is not a party in the present proceedings, is not admissible to request that Mr A be charged a sum for the costs incurred by him and not included in the costs and, on the other hand, that the conclusions of Mr. A tending to the application of these provisions must be rejected;
DECIDE:
————–
Article 1: There is no need to refer to the Constitutional Council the priority questions of constitutionality raised by Mr. A.
Article 2: The request N ° 340571 presented by Mr. A is rejected.

Article 3: The conclusions presented by the National Council of the Order of Pharmacists under Article L. 761-1 of the Code of Administrative Justice are rejected.
Article 4: This decision will be notified to Mr. Jean-Hugues A, the Prime Minister, the Minister of Health and Sports and the National Council of the Order of Pharmacists.
A copy will be sent to the Constitutional Council.

Analysis

Abstrates: 54 CONTRIBUTIONS AND TAXES. TAXES ON INCOME AND PROFITS. TAXABLE INCOME AND PROFITS – SPECIAL RULES. INCOME FROM MOVABLE AND SIMILAR CAPITAL. INCOME FROM THE TRANSFER OF SOCIAL RIGHTS, LIQUIDATION BONUS. – PRIORITY ISSUE OF CONSTITUTIONALITY – CONDITIONS FOR THE TRANSMISSION OR REFERRAL OF THE QUESTION – REFERRAL TO THE CONSTITUTIONAL COUNCIL – NEW OR SERIOUS QUESTION – CONDITION NOT FULFILLED – PROHIBITIONS FOR PHARMACISTS OF OFFICINES 1) TO EXERCISE A WHOLESALE ACTIVITY MEDICINES (ART. L. 5124-1, L. 5124-3 AND L. 5125-1 OF THE PUBLIC HEALTH CODE) 2) TO EXERCISE ANY OTHER PROFESSION (ART. L. 5125-2) – FREEDOM OF COMMERCE AND OF INDUSTRY AND FREEDOM OF ENTREPRENEURSHIP .
55-03-04-03 PROFESSIONS, OFFICES AND OFFICES. CONDITIONS OF PRACTICE OF THE PROFESSIONS. PHARMACISTS. MISCELLANEOUS RULES IMPOSED ON PHARMACISTS IN THE PRACTICE OF THEIR PROFESSION. – 1) PROHIBITION ON THE PRACTICE OF A WHOLESALE OF MEDICINAL PRODUCTS (ART. L. 5124-1, L. 5124-3 AND L. 5125-1 OF THE PUBLIC HEALTH CODE) – 2) PROHIBITION OF PRACTICE OF ANY OTHER PROFESSION (ART. L. 5125-2) – PRIORITY ISSUE OF CONSTITUTIONALITY – FREEDOM OF TRADE AND INDUSTRY AND FREEDOM OF ENTREPRENEURSHIP – NEW OR SERIOUS ISSUE – CONDITION NOT FULFILLED.

Summary :54 Provisions of the public health code prohibiting dispensing pharmacists from the wholesale sale of drugs (article L. 5124-1, L. 5124-3 and L. 5125-1 of the public health code), as well as ‘exercise of another profession (article L. 5125-2). Priority question of constitutionality criticizing these provisions with regard to the freedom to undertake. 1) Medicines, because of their effects on the human body, are substantially different from products sold commercially. The prohibition of the cumulation of the activity of wholesale distributor of medicines with that of pharmacy operator is justified by the need to ensure the neutrality, quality and traceability of the dispensing of medicines to the public and independence. of the operator of dispensary pharmacies. This prohibition thus meets the constitutional requirement of protection of public health and does not affect the freedom to undertake and the freedom.trade and industry a disproportionate interference with the objective pursued. 2) The incompatibility between the operation of a dispensary pharmacy and the practice of another profession – which does not exclude the right to exercise an ancillary activity not having the nature of a profession – has for objective, on the one hand, to ensure the independence of the dispensing pharmacist and the prevention of conflicts of interest liable to affect the neutrality and quality of the dispensing of medicinal products to the public and, on the other hand, to guarantee by the exclusive exercise of this profession a dispensation of medicines in accordance with the obligations imposed on him by the public health code. This rule thus responds to thefreedom to undertake and to freedom of trade and industry a disproportionate interference with the objective pursued. ,, Consequently, lack of seriousness of the question asked.
55-03-04-03 Provisions of the public health code prohibiting dispensing pharmacists from the wholesale sale of drugs (article L. 5124-1, L. 5124-3 and L. 5125-1 of the health code public), as well as the exercise of another profession (article L. 5125-2). Priority question of constitutionality criticizing these provisions with regard to the freedom to undertake. 1) Medicines, because of their effects on the human body, are substantially different from products sold commercially. The prohibition of the cumulation of the activity of wholesale distributor of medicines with that of pharmacy operator is justified by the need to ensure the neutrality, quality and traceability of the dispensing of medicines to the public and independence. of the operator of dispensary pharmacies. This prohibition thus meets the constitutional requirement of protection of public health and does not affect the freedom to undertake and the freedom.trade and industry a disproportionate interference with the objective pursued. 2) The incompatibility between the operation of a dispensary pharmacy and the practice of another profession – which does not exclude the right to exercise an ancillary activity not having the nature of a profession – has for objective, on the one hand, to ensure the independence of the dispensing pharmacist and the prevention of conflicts of interest liable to affect the neutrality and quality of the dispensing of medicinal products to the public and, on the other hand, to guarantee by the exclusive exercise of this profession a dispensation of medicines in accordance with the obligations imposed on him by the public health code. This rule thus responds to thefreedom to undertake and to freedom of trade and industry a disproportionate interference with the objective pursued. ,, Consequently, lack of seriousness of the question asked.

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