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The report of the Union of Entrepreneurs and Employers shows that in December more than one pharmacy was closed a day. Experts indicate that this trend has continued since 2017, since the introduction of “Pharmacies for a pharmacist”. On top of that, there is a mess when it comes to the activities of market regulators, which are often at odds with each other. Even the Ombudsman for Small and Medium Enterprises joined the case.
There are fewer and fewer pharmacies in Poland – and the legal mess continues
According to the PharnaNET portal, seventeen more pharmacies were closed in Poland from 4 to 14 December. As a result, out of 11 pharmacies on the map of the country, 961 remain.
– This trend is indisputable and has continued since 2017, when the “Pharmacy for the Apothecary” Act was introduced. According to the report of the Association of Entrepreneurs and Employers on the effects of the act passed in 2017, in the last four years the number of generally accessible pharmacies operating in Poland has decreased by over 10%, which means that there are currently over 1400 fewer establishments in Poland. The latest entries in social media show that 17 pharmacies disappeared from the map of Poland in ten days – writes the portal.
Recently, the article of the Salon24 portal has gotten loud around the pharmacy market and the often contradictory decisions of the regulator. The deputy of the United Right, Małgorzata Janowska, even undertook the intervention and demands a response from the prosecutor’s office. It is about an entrepreneur from Lower Silesia who fell victim to the decisions of officials. Salon24 writes that the entrepreneur ran a pharmacy since 2001, but his partner – who had a master’s degree in pharmacy – left the company. At that time, the owner of the pharmacy had to apply for a change in the authorization to operate the pharmacy, which he applied to the Pharmaceutical Inspection. The entrepreneur had to close the pharmacy, bearing the costs of its operation. The case was pending for four years, and his employees, along the way, had to be fired. In addition, there is a loss resulting from the need to throw away drugs that have expired at that time.
This is not the only such case. In September in Katowice, in a general partnership, there was a change in the ownership structure – a limited liability company joined the business. The WIF in Katowice stated that it was suspected that the statutory condition required to run the activity of generally accessible pharmacies was no longer met, because the limited liability company, in accordance with the law, was not entitled to obtain a permit to run a pharmacy.
The Ombudsman for SMEs joined the case, pointing to the lack of grounds for issuing decisions withdrawing the permits necessary to run pharmacies. Later, the Main Pharmaceutical Inspector himself also took the floor. The latter, in turn, pointed out that a limited liability company, as a rule, cannot run a pharmacy, but before the decision was issued by WIF, the limited liability company was removed from the Register of Entrepreneurs as a partner in a general partnership.
This meant that on the day the decision was issued by the WIF, the personal status of the general partnership was the same as that of the company on the days when the permits were granted, and the GIF itself decided that there was no basis for revoking the permits.
Franchise dispute
What is an increasingly popular model in trade is not so obvious on the pharmaceutical market – it is about a franchise. The stores we see around every corner today are largely franchise chains. Shopkeepers decide to join the network to be able to take advantage of numerous privileges – technological and shopping support, various types of loyalty programs, even in the form of an application, as well as the possibility of using well-known brands, where the customer, seeing the logo, knows what to expect. It turns out that the franchise on the pharmacy market is uphill. The main concern of regulators is that the franchisor takes control of the franchisee – and this already leads to excessive concentration on the market – then a capital group is formed. Another argument is that, in the light of the law, pharmacy activity is a regulated category of economic activity – not everyone can conduct it.
In an interview with ISBZdrowie, the attorney-at-law at Gessel and former vice-president of UOKiK, Bernadeta Kasztelan-Świetlik, indicated that the current legal system means that the operation of franchise pharmacies is determined – often differently – by two different institutions: the Office of Competition and Consumer Protection (UOKiK) and the Chief Inspectorate Pharmaceutical.
– Such situations should not take place in the rule of law. Entrepreneurs should have a clear message of what they can and cannot do, said Kasztelan-Świetlik in an interview with ISBzdrowa.
The attorney points out that the franchise is a beneficial solution for smaller business entities – as a form of cooperation in which the franchisee, in return for a franchise fee, has the opportunity to start a business, using the already proven formula, brand and broadly understood support from the franchisor.
– If the Supreme Pharmaceutical Council would like pharmacies in the smallest towns, then for a man after graduation – a pharmacist who does not have adequate resources to open his own pharmacy – franchise is often the only solution – she said.
She added that, in her opinion, the authority established in Poland to control compliance by entrepreneurs with the provisions of the Act on competition and consumer protection is UOKiK.
However, the GIF stated on September 19 that it does not deny the possibility and legitimacy of concluding franchise agreements by entities running pharmacies. However, they must be independent. GIF’s announcement appeared after the Ombudsman for Small and Medium Enterprises published a report at the Economic Forum in Karpacz, in which the Ombudsman emphasized:
“In the subject of franchising, it is necessary to change the practice of questioning the independence of the entrepreneur only due to the very fact of concluding a franchise agreement and additional agreements (e.g. loans, leases and maintenance services), if these agreements contain standard provisions for services of a given type and are contained in market conditions “.