Succession in the authorization of the pharmaceutical service

The provisions under examination are relevant with regard to succession in the authorization to practice pharmaceutical services. In relation to the issue outlined in the introduction, the provisions under comment constitute an exception to the general principle of the non-transferability of public law relationships, since they do not regulate succession in the strict sense, but rather exclusively regulate succession in the authorization provision, which is administered by the joint heirs.

• Subjective requirements and principle of indissolubility
• Nature of the decadence and role of the provincial doctor
• Transfer of the pharmacy and establishment authorization
• Pharmacy closure and protection of public service
• Transfer of the pharmacy and provisional management of the inheritance
• Start-up allowance and publicity limits
• Heir, ownership and legal community of property
• Assignment through competition and compensation to heirs
• Terms for the transfer and peremptory nature
• Collective management, forfeiture and negotiation tools
• Coordination between regulatory cases

Subjective requirements and principle of indissolubility

Pursuant to current legislation, the management of the pharmacy can be entrusted exclusively to a person who meets the legal requirements and the transfer of ownership is not permitted without the simultaneous transfer of ownership of the pharmaceutical company, under penalty of forfeiture .

The principle of the indissolubility between ownership of the pharmaceutical business and the commercial company is now consolidated also in civil jurisprudence.

Nature of the decadence and role of the provincial doctor

The provision by which the provincial doctor declares the forfeiture of the owner or heirs who have not carried out the transfer of the pharmacy within the established terms has a purely objective nature , being aimed at guaranteeing the certainty of legal situations.

This results in the irrelevance of the subjective aspects relating to the imputability of the conduct. Therefore, the forfeiture is not sanctioning in nature and is not subject to suspension or interruption , being prevented only by the performance of the act provided for by law.

Transfer of the pharmacy and establishment authorization

The transfer of the pharmacy is subject to a suspensive legal condition, represented by the recognition of the provincial doctor.

The nature of the constitutive administrative authorization means that the real effects of the transfer, both inter vivos and mortis causa, of the ownership of the pharmaceutical company are produced only following the issuing of the provision, albeit with retroactive effect.

Pharmacy closure and protection of public service

The closure of the pharmacy that has fallen into inheritance is to be considered illegitimate, in the absence of the simultaneous adoption of an emergency measure aimed at guaranteeing the continuity of pharmaceutical assistance, due to the heir's forfeiture of the right to obtain ownership and the expiry of the provisional management term.

Transfer of the pharmacy and provisional management of the inheritance

In the event of the owner's death, the heirs may, within one year, transfer ownership of the pharmacy to a registered pharmacist who has obtained ownership or has been found suitable in a previous competition.

During this period, the law allows the heirs to continue the business on a provisional basis, under the responsibility of a director. Case law has clarified that the residence allowance is due to the director, not the heirs.

Start-up allowance and publicity limits

In determining the goodwill allowance, the particular nature of the pharmacy requires the application of the more restrictive criteria set out in the special legislation, even in the case of a transfer due to death which is detrimental to the legitimate share.

This is because the pharmaceutical company is subject to public law constraints that affect the profit margin.

Heir, ownership and legal community of property

The heir of the deceased owner does not take over ownership of the pharmacy, but only its management. It follows that the marriage of the heir to a suitable pharmacist, under a legal community of property regime , does not constitute a valid transfer, not even pro rata, of ownership of the business.

Case law has clarified that legal communion concerns exclusively profits and increases, without attributing real rights on the company.

Assignment through competition and compensation to heirs

According to administrative jurisprudence, the assignment through public selection of a pharmacy that has fallen into joint inheritance is legitimate even in the absence of prior determination of the compensation due to the heirs.

In fact, the authorization concerns the pharmaceutical headquarters and not the company, which remains the property of the heirs as a complex of assets organized for the operation of the business.

Terms for the transfer and peremptory nature

In the case of acquisition by inheritance of a share in a limited liability company, where the prescribed requirements are no longer met, the beneficiary must sell the share within six months of filing the inheritance declaration.

This deadline, which also applies to the sale of private pharmacies, is considered peremptory, as it protects public interests of constitutional and community nature. The starting date runs from the filing of the declaration or, if late, from the expiration of the legal deadline.

Collective management, forfeiture and negotiation tools

A forfeiture order is legitimate against any heir who, at the time of requesting recognition of the transfer, does not own all of the pharmacy's shares. Collective management is permitted only in the form of a corporate entity.

The trust institution has been deemed abstractly suitable for the transfer of ownership only if it does not elude the rationale of provisional management , aimed at allowing the heir to acquire professional suitability within a limited period.

Coordination between regulatory cases

Case law has excluded any conflict between the different provisions:

• on the one hand, the temporary exercise by the lapsed heirs ensures the continuity of the public service;
• on the other hand, the provisional exercise aims to preserve the integrity of the inherited business, avoiding the closure of the pharmacy pending the assignment through public competition .

When analyzing administrative functions and skills in pharmaceutical matters , it is necessary to take into account the regional laws in the sector , in order to outline a complete systematic framework of the profiles examined.

The Agenzia delle Successioni can be the ideal solution for delving into the topic and managing the succession of a pharmacy.