Guarantee of proper operation of a pharmacy as a condition for a transfer of permit to operate a public pharmacy by the acquiring enterprise: Comments based on the judgment the Provincial Administrative Court in Warsaw of July 3, 2022 (V SA/WA 113/22)

Abstract

The transfer of a permit to operate a public pharmacy depends on the purchaser meeting the statutory requirements necessary to obtain a permit, including the possession of a guarantee of proper operation of the pharmacy. This means that as a result of the permit transfer, the buyer continues to operate the pharmacy based on the prior seller’s permit, who must fulfill the conditions set out in the permit to operate a pharmacy, regarding, inter alia, the granting of a guarantee of proper operation of the pharmacy.

In practice, there are two lines of interpretation. According to the first one, due to the loss of the warranty by the seller, it expires each time. According to the second one, the fact that the conditions for the permit withdrawal are met due to the loss of the warranty by the seller of the undertaking after the permit transfer to operate a pharmacy is irrelevant to the sustained existence of the transferred permit, which is still valid.

In the author’s opinion, one should agree with the second of the presented views. As a result of the acquisition of a public pharmacy, the transfer of the permit will take place only when the purchaser meets the conditions, including the possession of a warranty for the proper pharmacy operation. The transfer of a permit under Article 104a of the Pharmaceutical Law is therefore one of the methods of obtaining it, under which the purchaser confirms that he is eligible to operate a specific public pharmacy. As a result, he continues to operate the pharmacy and is reliable for complying with the conditions set out in the permit to operate it. However, he is only responsible for his own actions.

It is inappropriate to state that the pharmacy purchaser liability covers irregularities committed by its seller, consisting in the obligation to rectify them, is associated with the risk of permit withdrawal from the purchaser, for the failure of the seller of the pharmacy to remedy the irregularities or with the loss of the warranty for the proper operation of the pharmacy by its seller. Such legal consequences may be borne by a party only for its own actions, i.e. for the failure to remedy irregularities committed by the seller of the pharmacy after the purchase of the pharmacy or for its own loss of the warranty for the proper operation of the pharmacy.