In the course of the last months, two Judges of the Cyprus Administrative Court have issued conflicting decisions concerning the regulation promulgated by the Cyprus Pharmacy Board on the operation hours of pharmacies in Cyprus during the summer period.
Relevant Legislation
The Pharmacy and Poisons Law (Cap.254) provides that the Council of Ministers can publish regulations regarding, amongst others, the regulation of holidays, half-days, the closure and opening of pharmacies in rotation and the obligation of any pharmacist to keep a pharmacy open or closed during specific hours. The relevant regulations were published in 2000 (RAA 280/2000). Subsequently, the Council of Ministers assigned this authority to the Cyprus Pharmacy Board (RAA 1/2002). The regulations provide that a violation of the relevant prohibition constitutes a criminal offense, punishable by 6 months imprisonment or penalty of £450 or both the above.
The Cyprus Pharmacy Board acted upon the said regulations and published a number of administrative decisions in the Official Gazette of the Republic of Cyprus, which affected pharmacies throughout Cyprus by stipulating a number of weeks in which pharmacies would be obliged to remain shut in the course of the summer for the purpose of vacation. The relevant decisions of the Cyprus Pharmacy Board to shut the pharmacies for summer vacations were based on article 42(1)(θ) of the Law and RAA 280/2000, which gives the power to the Council of Ministers (as assigned to the Cyprus Pharmacy Board) to issue regulations for the purpose of “regulating public holidays, semi-holidays, shutting and opening of pharmacies on a rotation basis and the obligation of any pharmacist to maintain the pharmacy open or shut within a period of specific and stipulated hours.”
The first decision of the Administrative Court (844/2015)
In the first case, the applicant raised a number of arguments before the Cyprus Administrative Court, which included issues of competence but also of substance. In relation to substance, the arguments were two-fold: first, that the exercise of the power was outside the scope of the above regulations and that, therefore, the Cyprus Pharmacy Board had acted “ultra vires”, i.e. outside the scope of its powers, as enshrined in the relevant regulations and assigned to it by the Council of Ministers; second, that the obligatory shutting of the pharmacy of the applicant for 3 weeks during the summer violated the nucleus of the right to exercise a business, which is enshrined in the Cyprus constitution.
The Judge of the Cyprus Administrative Court rejected both arguments. In relation to the first argument, the Court observed that given that the Cyprus Pharmacy Board had power to order the opening and shutting of pharmacies for specific days, there was no reason to conclude that it was not within its powers to order the shutting of specific pharmacies for a number of weeks, regardless of the reason the relevant decision. The Court also observed that the overall rationale and justification of the decision was not challenged and, therefore, there was not issue to consider in that respect. In relation to the second argument, the Court was not satisfied that the decision of a 3 week closure was sufficient to violate the nucleus of the right to business.
The second decision of the Administrative Court (834/2015 and 1046/2016)
In the second case, the main argument advanced to the Cyprus Administrative Court was that a comprehensive closure of a pharmacy for one week in July and one week in August for summer vacations was outside the scope of the above regulations and that, therefore, the Cyprus Pharmacy Board had acted “ultra vires”, i.e. outside the scope of its powers, as enshrined in the relevant regulations and assigned to it by the Council of Ministers.
Another Judge of the Cyprus Administrative Court agreed with this argument and cancelled the relevant decision of the Cyprus Pharmacy Board. The Court observed that the regulation expressly provides for the power of the Cyprus Pharmacy Board to regulation the opening and shutting of the pharmacies on rotation as well as oblige a number of pharmacies to remain open over nights or over a sequence of days for specific hours. However, the legislative framework contains no reference, as a matter which falls within the content of the relevant framework, the competence of the Cyprus Pharmacy Board to regulate the shutting down of pharmacies for summer vacations, at least in the way that this was exercised. The Court also observed that in this type of cases, the Court would expect to see an express intention of the legislator, reflected in the relevant framework, allowing the regulation on the opening and closure of pharmacies for the summer vacation and that such intention could not be implied.
Commentary
The existence of two first instance decisions with different conclusions and results on an identical matter has clearly demonstrated the problems that may arise when legislation, either from Parliament or the executive, is unclear and poorly drafted. The issue may well need to be advanced to the Court of Appeal, so that a binding precedent is issued on the matter or, preferably, the executive should have taken the initiative to amend the relevant regulations, in order to provide the desired clarity.
In the meantime, since 2018 the Pharmacy Board has suspended the issuance of any decisions for regulating summer holidays of pharmacies.
It is, at least, fortunate that the recent numerous administrative decisions taken by the Ministry of Health and affecting the operation of pharmacies in view of the COVID-19, are based on a different legislative framework, which is less controversial. Section 6 of the Quarantine Law (Chapter 260) provides for the competence of the Council of Ministers to take measures for the preventing of the spread or the transmission of any dangerous infectious diseases and this includes the opening of pharmacies and specific obligations regarding the circumstances of the opening of the pharmacies. These orders are only temporary and will need to be revoked once the situation no longer justifies such regulations.
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