Defying critics, temporary pharmacy limit destined to come

Apteek.

PHOTO: Teet Malsroos / Õhtuleht

New pharmacies order is urgently needed, by June. According to Chancellor of Justice, however, transition period with limits is unconstitutional.

Social Affairs Committee at Riigikogu opted to take some extra time to deliberate the pharmacy regulation amendment bill, but temporary limits seem as good as decided.  

The hottest debate rages around whether a temporary limit – of 1.5 years length, say – should be imposed after restrictions fall off from establishing pharmacies, so as to avoid mass «migration» of pharmacies from countryside to cities. At the moment, social committee is looking at a proposal to only allow opening of new pharmacies in larger local governments as requested by such governments and affirmed by State Agency of Medicines, till end of 2015. 

Competition retarded

The limit is opposed by Chancellor of Justice Indrek Teder who thinks that with a transition period proclaimed thus making it essentially impossible to open pharmacies in cities during that time, medicines market would still be closed and the unconstitutional situation would continue. «Thus, the situation would stay the same for current market players i.e. they would be protected from competition by law,» he said.

His view is shared by sworn advocate Allar Jõks who analysed the bill at the request of the pharmacy chain Ülikooli Apteek (YA) which favours liberalisation of pharmacy market.

Mr Jõks agrees that by the Supreme Court decision and the unconstitutional new limit it is desired to «protect a medicine trading group with existing and dominant market share from the healthy effect of competition».

In high likelihood, Social Affairs Committee of the Riigikogu will still decide to impose the limit in one way or another, though it took time off yesterday, again, and asked for the opinion of Constitutional Committee at Riigikogu.

Thou the latter has yet to pass its assessment, Constitutional Committee chairman Rait Maruste is of the company who tends to consider the temporary regulation the only way in the current situation. Considering the complexity of the situation, he says, it would be best for Riigikogu to have had more time to prepare the amendment than the six months granted by Supreme Court – the deadline thereof set for June 9th. Meanwhile, pursuant to law the court has no options to postpone the entry into force of the decision.

As described by Mr Maruste, the debates so far look like a cockfight between interest groups and political rivals to muddy the waters and makes use of the mess. «The problem simply isn’t solvable by legal argument; this is a socio-economical problem and there will basically be no solution satisfactory to all. But some kind of a compromise needs to be found and it will take a while, this cannot be done while time is compressed,» said he.

Ministry mum

Thus, he says the way out would be a temporary regulation providing the parliament extra time to seek a compromise. «After all, the constitutionality of this can only be verified by the prescribed procedure i.e. via Supreme Court,» said Mr Maruste.

The temporary limit has also been favoured by former Chief Justice of the Supreme Court Märt Rask, during whose term in office the discussion commenced at the institution. Also in favour are sworn advocate Jüri Raidla having delved into the issue as requested by Pharmacists’ Union, and by sworn advocate Ants Nõmper who has represented small pharmacies in court. Till today social ministry has not published its stand.

According to original plans, the controversial bill ought to have undergone the final vote this week already; even so, as decided by Social Affairs Committee, the parliament will today disrupt the second reading of the bill postponing its ratification till next week.  

Comment

Märt Rask, former Chief Justice of the Supreme Court

This is not the first, but one of the most serious legal debates where the economic interests of various interest groups are very clearly and colourfully exposed. Riigikogu must have the wisdom to create a regulation which is first of all in the interests of public health, the patients, and customers visiting pharmacies – not based on how market players would feel. 

By cancelling limits to open pharmacies, the Supreme Court gave six months to develop the new regulation. Obviously, six months is not sufficient to find a solid solution within our democratic parliamentary decision making process. During the three-four months that the Riigikogu has deliberated the issue, the problems of regulating the market have only just surfaced. The worst would be having no regulation at all.

Desiring to deal with the issue and build a pharmacies network based on needs and what’s best for consumers, not according to what’s expedient to a pharmacy chain – this takes time. According to administrative provisions, the parliament ought to have the time. I can’t imagine the work continuing without it.

Should we now say that the provision is definitely unconstitutional, then we’d be serving someone’s financial interests. We may doubt anything, but no provision is unconstitutional until so judged by the Supreme Court.

Should some provisions be pulled out of the bill to please every interest group, the Supreme Court decision would never ever be carried out.

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