LA CORTE RECHAZÓ UN RECLAMO DE FARMACITY PARA INSTALARSE EN LA PROVINCIA DE BUENOS AIRES
La Corte Suprema de Justicia rechazó el reclamo judicial a partir del cual la firma Farmacity pretendía instalarse en territorio bonaerense, pasando por sobre la normativa provincial que impide la instalación de farmacias a nombre de sociedades anónimas en la provincia de Buenos Aires.
El máximo tribunal confirmó las sentencias dictadas en instancias anteriores y entendió que “el legislador local ha ejercido sus facultades en forma razonable, basándose en principios de salud pública, ampliando la protección de los pacientes”, según comunicaron fuentes judiciales.
El fallo que rechaza el reclamo de Farmacity fue alcanzado con el voto de los jueces Elena Highton de Nolasco, Ricardo Lorenzetti y Martín Irurzun, mientras que la jueza Mirta Gladis Sotelo de Andreu votó en disidencia. Para este caso, el tribunal estuvo integrado de esa manera porque los jueces Carlos Rosenkrantz y Horacio Rosatti se excusaron, mientras que Juan Carlos Maqueda no votó.
Farmacity S.A. promovió demanda contra la Provincia de Buenos Aires con el objeto de obtener la declaración de nulidad de determinados actos por los cuales se le denegó una solicitud genérica para operar en el ámbito provincial y un pedido de habilitación para poner en funcionamiento una farmacia en la localidad de Pilar.
Los jueces Lorenzetti y Highton indicaron que la cuestión planteada no encuadra en las facultades que el ordenamiento jurídico vigente reconoce como exclusiva y excluyente del Congreso de la Nación y tampoco se trata de una materia expresamente vedada a la provincia, razón por la cual se trata de una competencia de incumbencia compartida y concurrente.
Los magistrados consideraron además que la parte actora no había probado que la aplicación de la ley provincial entorpeciera severamente la política nacional fijada en la ley 17.565 y los decretos 2284/91 y 240/99, agregándose que una lectura integral y armónica de las dos regulaciones permite concluir que son normas complementarias que pretenden avanzar en la concreción de políticas públicas comunes en orden a la protección de derechos fundamentales de la población y, en particular, de los consumidores de productos farmacéuticos.
“También se consideró que la exclusión de las sociedades anónimas como sujetos que pueden ser propietarios de establecimientos farmacéuticos en el territorio de la Provincia de Buenos Aires, constituye una reglamentación razonable, pues no vulnera la libertad de comercio ni el derecho a la igualdad”, indicaron fuentes del máximo tribunal en relación al fallo de 80 páginas emitido ayer.
En la resolución se agregó que la exigencia de la titularidad de las farmacias limitada a los sujetos indicados en la norma busca garantizar la independencia profesional real para evitar que, eventualmente, se afecte el nivel de seguridad y calidad del abastecimiento de medicamentos a la población.
El juez Irurzun, en voto concurrente, afirmó que las limitaciones impuestas para la habilitación del ejercicio de la actividad farmacéutica no conculcan los derechos y garantías reconocidos por la Constitución Nacional.
El magistrado sostuvo que la ley 10.606 define a la farmacia como un “servicio de utilidad pública para la dispensación de los productos destinados al arte de curar…” y, en razón de ello, estableció una serie de condiciones bajo las cuales debe desarrollarse la dispensa de medicamentos, aludiendo a la necesidad de que sea exclusivamente a través de las farmacias, a las que definió como una extensión del sistema de salud.
En su voto en disidencia, la jueza Sotelo de Andreu optó por revocar la sentencia apelada en cuanto declaraba la validez de la norma en cuestión (art. 14 ley 14606 de la Provincia de Buenos Aires).
Para así decidir, la magistrada consideró que a pesar de encontrarse frente a una problemática de poder de policía en materia de salud pública, en la cual había facultades concurrentes entre la Nación y la provincia – en las cuales en caso de duda, priman las facultades locales por sobre las delegadas- la norma en cuestión carecía de razonabilidad.
Sustentó dicha falta de razonabilidad ante la imposibilidad de advertir cuál es la finalidad pública perseguida al excluir a ciertos tipos societarios de la posibilidad de ser propietarios de establecimientos farmacéuticos. Por otro lado, consideró que había una violación al principio de igualdad, al permitir a ciertas personas jurídicas ser propietarias de farmacias y a otras no.
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