Remove Application of Discriminatory Clause against overseas Pharmacists

Regulation No 1612/68 on freedom of movement for workers within the Community as amended by Directive 2004/38/EC states the principle of equal treatment in access to employment. It implies that foreign EU nationals have the same priority as nationals for access to employment in any Member State.

In addition, EC law states that any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of other Member States.

Article 43 of the Treaty of Nice on freedom of establishment reads: restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited.

Paragraph 2, adds:Freedom of establishment shall include the right to take up and pursue activities as self employed persons and to set up and manage undertakings, in particular companies or firms.

And article 44.c establishes: freedom of establishment shall be attained by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment.

According to Directive 2005/36/EC on the recognition of professional qualifications , qualifications of pharmacists are recognised automatically as training is harmonised in all EU Member States. As a consequence, all EU citizens holding the compliant diploma of pharmacists can benefit from automatic recognition of their qualifications in other Member States.

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WHEREAS discrimination on the basis of EU nationality is illegal.

WHEREAS EU qualifications comply with common EU directives;

WHEREAS article 43 of the Treay of Nice expressly prohibits any restriction on establishment of EU nationals in other EU country, including the selfemployed

WHEREAS The European Parliament, in his resolution on petition 1282/2003. states "that the purpose of that prohibition is due to the fact that different countries have different legislations concerning the opening of new pharmacies and was implemented to prevent an excessive number of acquisitions of British pharmacy business by EU foreign nationals. The European Parliament explicitly states in its resolution "Consequently, the pharmacists concerned have the right to work in a dispensing pharmacy less than three years old, albeit they may do so only as salary earners."

WHEREAS a similar issue was examined by The European Court of Justice in Luxembourg,

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994J0055:En:HTML

and declared such practice as is currently being applied in the UK, illegal.

reuniting their conclusions in 4 points:

National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.

WHEREAS the current application of the law breaches each and every single one of the four points,

WHEREAS It forces EU foreign nationals to not study in their homelands, (but in Great Britain), if they want to work in new pharmacies in the UK, placing therefore unequal conditions in accessing to job posts in the United Kingdom with regards to British nationals.

WHEREAS, it leads to the discriminatory situation that a UK graduate with zero days experience can be in charge of a new pharmacy, but an EU pharmacist with years of work experience in the UK cannot.

THEN:

The clause of Article 21 paragraph 4 of Directive 2005/36/EC, as interpreted and applied by some jurisdictions, in this case, the UK, allowing the member States to prohibit EU pharmacists from being in charge of a pharmacy open less than three years is discriminatory in nature and therefore must be declared, írrito, nulo et ilegalis.
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