Court of Appeal confirms Chemimart pharmacy move

The Court of Appeal has confirmed a judgment in which the Superintendent of Public Health was ordered to issue a temporary licence authorising the owner of Chemimart pharmacy to operate from Republic Street, Valletta.

The appeal court, however, stressed it did not agree with the manner in which the first court had ruled on the remedy to the case by ordering the health authorities to issue the licence.

"In cases when the ordinary courts are asked to look into administrative matters, their competence is limited to ordering that a decision is taken or that a decision is withdrawn but they (the courts) should never take the decision instead of the competent authority," ruled the Court of Appeal composed of Chief Justice Vincent Degaetano, Mr Justice Albert Magri and Mr Justice Tonio Mallia.

The issue arose after the owner of the Chemimart pharmacy in Freedom Square, Reginald Fava, was told to move elsewhere because of the re-development of the City Gate area.

Mr Fava filed an urgent lawsuit against the Medicines Authority and against the Superintendent of Public Health, Ray Busuttil, after they refused to transfer his pharmacy licence from Freedom Square to Republic Street.

Mr Fava had asked the authorities to transfer his licence to alternative premises in Republic Street. But other pharmacy owners complained about such transfer, claiming that Mr Fava's pharmacy would be closer than 300 metres away from their pharmacies and they would suffer damages.

The First Hall of the Civil Court had declared that Dr Busuttil was empowered to change the conditions of a licence when there was a "material change of circumstances". In this case, Mr Fava was forced to close his outlet due to works of a national nature. The court added that it could not understand why the potential unjustified reaction of third parties should negatively influence the Superintendent's decision at Mr Fava's expense.

The authorities were ordered to issue a temporary licence to Mr Fava, authorising him to operate his pharmacy from Republic Street.

The Chamber of Pharmacists appealed as did the Pharmacy Owners' Section of the Chamber of Small and Medium Enterprises - GRTU.

The Court of Appeal ruled that the Chamber of Pharmacists did not have a legal interest to intervene in this case, unlike the owners of other Valletta pharmacies.

The law that established the legal distances between pharmacies had been enacted in the interests of the consumers and not in the interest of pharmacy owners.

The law was aimed at enabling the public to have access to different pharmacies that were not sited next to each other but at different locations. Consequently, the appeal filed by the pharmacy owners was dismissed and the original judgment confirmed.