Article 30 EEC: Caution in the European Court
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01835.x |
| Date | 01 September 1990 |
| Published date | 01 September 1990 |
| Author | Stephen Weatherill |
CASES
Article
30
EEC: Caution in the European Court
Stephen Weatherill"
In July 1987, the Court of Appeal made use of Article 177 EEC to refer to the European
Court issues relating to the interpretation of Article
30
EEC which had arisen in
R
v
Thei
Pharmaceutical Society
of
Great Britain, ex parte the Association
of
Pharmaceutical
Importers (APZ).'
In a previous issue of the
Review,
this commentator concluded his
discussion of the decision to refer by suggesting that 'this case is likely to yield much
more of great interest'.* The European Court has now delivered a judgment3 which is
indeed interesting, but it is also surprising and doubtless disappointing to the applicants.
Proceedings before the English
Courts
When a doctor prescribes a British medicine, an alert, profit-minded pharmacist might
prefer to supply the patient with a therapeutically equivalent imported product. The import,
though bearing a different name from the British preparation, is often, crucially, cheaper.
However, in the summer of
1986,
the Pharmaceutical Society, the professional body,
published an official statement declaring that this practice of substituting medicines
contravened the Code of Ethics of the Society. This ruling was supported by the Terms
of Service for Chemists under the National Health Service made by the Secretary of State
for Society
service^.^
The practice of substitution ceased and the market for the
substitutable imported products vanished.
The API, representing the importers, initiated legal proceedings against the Minister
and the Society. The simplest solution, alteration of the name of the imported product
to correspond with the British equivalent, was precluded by the trade mark laws,5
so
the
API argued instead that measures equivalent to a quantitative restriction on imports of
pharmaceuticals had been imposed, contrary to Article
30
EEC.
The application was rejected by the Divisional Court
.6
Although that Court
acknowledged the broad scope of Article
30
EEC, it considered that the doctor was simply
exercising a choice as consumer, which the pharmacist should respect. The API's remedy
for lost business lay not at law, but in their ability to persuade doctors to prescribe imported
products in preference to British products. The applicants successfully persuaded the Court
of Appeal to refer questions concerning the interpretation of Article
30
to Luxembourg.'
Kerr
LJ
had doubts about the Divisional Court's approach. Doctors are not simply private
consumers. They are part of the State National Health Service. Furthermore,
the
API were
not complaining about the practice of doctors, who had not altered their behaviour in any
*
Lecturer in Law, University
of
Manchester.
1
[1987] 3 CMLR 951.
2 (1989) 52 MLR 232.
3
4
5
6 [1987] 2 CMLR
504.
7
Cases 266 and 267187, [1989] 2 CMLR 751, [1989] 2 All ER 758.
Part
I
of Sch 4 to the National Health Service (General Medical and Pharmaceutical Services) Regulations,
SI
1974/160 (as substituted by
SI
19851290).
On
this aspect of the case, see Morcom (1988) EIPR 47.
For
the purposes
of
the reference the actions against the Society and the Minister were joined as Cases
266 and 267187 respectively.
699
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