AN EXCEPTION TO THE ESTABLISHMENT AND REGISTRATION OF PROFESSIONAL SOCIETY:
THE PURSUIT OF OWNERSHIP BY PHARMACEUTICAL PROFESSION OFFICE OF DRUG
Gragera Eduardo Glez.-Santiago, Seville ICA Counsel, Attorneys LegalSur partner
The purpose of this study is whether or not to implement the new social type of professional society as defined in the Act 2 / 2007, 15 March, in the field of pharmacy, for which we need from the analysis of what is meant by the pharmacy in its current economic legal aspect to consider second if new professional societies fit in legal settings from that in our law.
The concept of pharmacy has evolved considerably since its early consideration to their current reality. I believe that in any case, obviously, we are referring to both the amplitude is not local or establishment, as the exercise of the pharmacy profession in the form of the population provide the basic services listed in Article 1 of Law 16/1997 through an office open to public and private health care institution of public interest. This section describes the field of alternative pharmaceutical profession exercises that do not address the subject of our study (analysis, testing, orthopedics, etc.) As well as other potential companies in the pharmaceutical sector (industry / laboratories, distributors, etc. .)
In a first such exercise of activity involves the confluence of three key elements, as our courts have repeatedly pointed out.
• First is the practice of a profession, which is also health. Be a profession involves academic qualification requirements and licensing, but the health status in this field adds the necessary implementation of Law 44/2003 of 21 November, management of Health Professions.
• Second is the practice of a company, which also is sanitary. That is business, and even trade, directly or indirectly, as assimilated to it, as positions, "take their required membership of the Chambers of Commerce settled law, as well as the identification of undoubted civil, or commercial in its structure. However, that character also adds to health both essential administrative aspects.
• And so much so that it is in third place, a private practice but the public interest for such personal health information, what has come to be considered a "public wrong" (Supreme Court ruling June 9 1988, June 30, 1995 and 1997.The April 4, among others). This leads to the subjection of that year to major requirements (including ownership), a requirement of administrative authorizations and submission to planning.
In any case, our law these three elements should be noted that appear to be inseparable, leading to a genuine status of the activity. However, I do believe without a doubt that this activity now stands as the main business item, because difference is that this mode of practicing the profession of others: do through pharmacy open to the public, as an organized structure directed the market. So, even with its own characteristics, we face a real company, within which self-exercises-that the pharmaceutical profession. Thus, the Constitutional Court ruling of June 6, 2003 talks of a "pharmaceutical business model" to refer to the basic and essential elements of the pharmacy. Therefore, the statute must speak pharmaceutical company. And in this statute, although as we see conceptual relationships interwoven, yet always prevails in the public interest arising from the health objective pursued, so that the General Health Law entrusts the pharmaceutical services in the NHS, outside hospitals, businesses that are community pharmacies by the guarantee implies the intervention of the pharmacist as health professional, but not satisfied with a simple intervention, but that requires the title and ownership of it in the hands of it.
However, on several occasions and in various forums, it has no relevance to this unitary concept, but a mere partial administrative and civil aspects.
partial course of the case these approaches have relied heavily on call to resolve jurisdiction over certain disputes, but ultimately led to pose a doctrinal dichotomy between administrative and civil property ownership that we think is difficult to sustain. And that, however, we have seen precisely reproduced in the parliamentary debates preceding the enactment of the Companies Law Professionals, the influence that this entails for the purposes of this analysis.
However, the pharmacy is now a company that come together inseparable, forming a true status legal aspects and elements into a unified whole. Therefore, when difference between property ownership and civil administration incurred in absolute simplicity. Actually, what title should be discussed is the administration that equates to ownership of the civil authority and ownership (or commercial) which is identified with ownership of the company, but in both areas or concepts not as independent but converging within we call status of the pharmaceutical company.
This brings us, then, outlines the elements of the statute, the elements of the pharmaceutical company that is the pharmacy.
and, indirectly, but forced, to identify the role that the three elements characterizing this activity previously noted (exercise of health professions, health and exercise company private practice of public health in character)
First, in its subjective aspect, appears employer or owner.
Entrepreneur is one who holds legal title on the company, as a matter recognoscible, entitling him to its representation and management, direction, subject to liability to third parties.
Character reporting health status have already been imposed by the requirement that it be pharmaceutical, licensed individual Pharmacy, and that its title is owned company. And that is owned, means to recognize in himself the essential characteristics of the domain: that is, enjoy broader power to manage and provision (Article 348 of the Civil Code), subject to unlimited personal liability (the principle of liability universal, Article 1911 of the Code) with full recognition and enforceability against third parties (erga omnes). This, and nothing else, means that the administrative owner holds the property of the company
Second, in its objective aspect, we find what we might call the productive elements. And these elements, in turn, are personal and property.
personal items may be different but in any case, the personal health status reporting always requires the presence of health professionals (Article 5 of Law 16/1997, of 25 April, Regulatory Services Office Pharmacy) to require the pharmacist owner (or exceptionally, Regent), and power of substitutes and assistants or helpers. It is, therefore, in this situation and context in which our legal model is developed before exercising call the pharmacy profession through pharmacy, exiled and in practice a liberal exercise without own business characters of the past. The exercise of the pharmacist as the professional is direct, self-employed, while the substitutes and deputy or assistant is employed, under a lease of services or, more generally, labor relations that links you to one in the business environment. These categories of exercise or self-employed, on the other hand, refers explicitly, as one would expect, the Law on Management of Health Professions (including Articles 4.2, 40.1, 41 and 42).
As the assets, or rather cheap, as stated above can be identified as such usually the establishment or business premises, inventory, customers, transfer fees and other physical-economic elements of the company (furniture, machinery, software licenses, etc.)..
Finally, thirdly, in its formal aspect, also subject to a valid legal title (which, as we have seen, must be owned), the pharmaceutical company for their personal health also requires administrative authorization of the head owner of the company, so too must be the administrative head.
We say that the title should be owned or domain (owner) on the company as a whole unit, since it can refer only to the legal requirement, as the local business or other economic or financial production elements is no doubt different titles that fit the domain (rent, lease, deposit, loan, etc ...).
For administrative authorizations of them deal with state baseline both Article 3 of Law 16/1997, and Royal Decree 1277/2003 of 10 October, laying down General Bases on Authorization Centres, services and institutions, all without prejudice to the regional competition in the capital area.
But besides this, that to be a unitary business group, also leads to consider their impact on transmission level so that management ownership and ownership authorization civilian control over the company necessarily appear together, even for the purpose of such transmissions. Consequently, the transmission of the pharmaceutical company necessarily implies approval. Perfectly
could mean something else: that what is transmitted is the company and, once transferred, the purchaser is granted as a matter of discretion-regulated-no new authorization. State legislation, traditionally-and still today, it could be argued this thesis, but the reality has been diluting regional rules this possibility for the sake of the transfer of the permit itself.
What I argue is that there is always a correlation with the transfer of the business and can not understand the concept separately, nor reduced to the mere possibility of transmitting what actually happens is that when you convey the company necessarily be transmitted in the same administrative authority, as it essential formal element.
Therefore, we conclude that PHARMACIST EMPLOYERS, AS A COMPANY IS DRUG, A PHARMACEUTICAL TO BE IN ADDITION TO EXERCISE YOUR PROFESSION DIRECTLY IN YOUR COMPANY, FROM A BUSINESS PERSPECTIVE DISPLAYED TO THE OWNERSHIP OF ADMINISTRATIVE AUTHORIZATION, AND, VIEW FROM A CIVIL (OR TRADE) MUST hold title of ownership (OWNER) OF THE COMPANY THAT IS THE OFFICE OF PHARMACY.
Now: can we co-ownership in the administrative approval?, What about the corporate domain?. For
administrative authorization, health status of the company statute requires that, in principle, the "owner" is a single person has a degree in Pharmacy. That would follow Article 1 of Law 16/1997 referred to in the singular, the pharmacist-owner owner, that is, a single individual pharmaceutical and therefore confirms a degree in pharmacy and Article 6.2.b) of the management of Health Professions (Without prejudice to the functions according to their qualifications and specific expertise relevant to each health professional development or that may develop other professionals, are functions of each level health professions graduates the following: (...) b) Pharmacists: it is for Pharmacy Graduates in activities aimed at the production, storage and dispensing of medicines and the collaborative analytical processes, pharmacotherapy and public health surveillance).
However, today it must be viewed in the light of the specialties recognized in the regional legislation, in which the practically unanimous rule is to admit the co-ownership of several pharmacists in the authorization, and as such must be accepted. Always with the nuance required to link with the required identity with the ownership (which reflected the various regional laws mostly). In the rest there is no change: these potential co-owners must be pharmacists, that is, individuals licensed in pharmacy.
As for the possible joint ownership in the domain of the pharmaceutical company, again the health status of the company statute imposes that it holds the administrative head of the company domain ("Owner"), is holding in his person (and, therefore, as a fully recognoscible and enforceable against third parties) the widest powers of representation, management and provision it, subject to a regime of unlimited personal liability. If these characters may be a presumption of joint ownership of the company, said co-ownership is permissible, if not, must be rejected.
As such cases of joint ownership may be mentioned incidentally, as the vacant inheritance or the conjugal partnership. These cases, and even taking into account the controversial nature, they have been considered common assumptions Germanic community, property or common hand pars bonorum Valoris, leading to important civil implications for participation of heirs or spouses on the pharmaceutical company as a whole unit or on the different elements of production , which are beyond the scope of this study, but not distort the thesis that I maintain.
However, in the case of joint ownership is not incidental, but voluntary, we must bear in mind that our legislation does not exclude the possibility of transmission including a fee on the pharmacy, but always in favor of a pharmacist (such as the previous legislation recognized the STS of December 14, 1992, and the effect of STC June 5, 1997, Legal Grounds 8 - which shows how Article 4 of Law 16/1997 provides, inter alia, the transfer of offices pharmacy for another or "other" pharmacists).
However, this always lead to a co-ownership that compared to others (externally) involves a simple community of goods, but internally you can and should be regarded as domestic partnership (civil or collectively, as we opted for civil or commercial nature .)
This is so because, demanding legislation that embodies the administrative ownership in the person of the holder of the domain of the company, and as the administrative head should be a natural person can not be a personification differently by society, spreading a link externally only community without personification, and the business relationship must be maintained in the merely shared procedure. However, in the domestic sphere, they can govern obligational agreements between the joint owners of a society, the most frequent regular contributions to the common fund, and therefore shares in the joint ownership, and / or profit sharing discipline and losses (in essence, covenants and communication media). These companies internal, however, the liability regime that underlies the proficiency requirement imposed, should always be personal (and unlimited personal liability of partners). It is for this reason that capital firms are excluded from this area because, by their nature, are always outside (and this clashes with the required head embodiment in administrative and business owner) and limited liability (which hits the unlimited liability regime required administrative and business owner).
Having this scheme defining the pharmacy in our law, we will see if it fits into the new national professional society. Published
Law 2 / 2007 of March 15, Professional Corporation, its Sixth Additional Provision has been to provide that "Notwithstanding the provisions of this Act, the ownership of pharmacies are regulated by health regulations they is applied. "
Some, subject to conceptual reductionism prevailed, and following that simplification difference between ownership administrative and civilian property, have fallen into the misconception that the DA 6 th, to say that ownership is subject to sanitary and silent about property, has to devote to administrative ownership can not rest on the professional society for health regulations requires either an individual a degree in pharmacy, but instead of civilian property it will be possible to impose on the professional society because it is outside the health requirements and the new law rather than the exception.
So much so that after the parliamentary debates, the final text has been as a compromise that has sought to reflect an intermediate position between the initial project, not exceptions to the pharmacy of the implementation of the Act, and amendments People's Party and Convergence and Union, which both claim exemption as property ownership. And the transaction, as we see, has sought, as proposed by the Socialist Party to except the title, but instead allow the entry of professional societies in the property.
Nevertheless, we must consider that if the intention of our parliamentarians sometimes provides useful interpretative criteria in discerning the meaning of the legislature and the Law, the truth is that it always will not detract or the general legal principles that underpin an institution, or peremptory norms that govern systematically.
Therefore, if we presented the characters which underlie the regulation of pharmacy in our law, we actually based on two fundamental premises.
On the one hand, the character health of the pharmacy always prevails given the public interest to pursue, so modalizes pharmaceutical company is setting up the special status to which is attached. In this sense, I think: 1 .-
the social function of property, enshrined in Article 33 of the Constitution as the anchor of the powers of domination, founded the public health interest is defining the property that falls on the pharmaceutical company, so there is no interpretation of the concept of the property that contradicts the basic principles derived from such interest groups, and
2 .- that Professional Societies Act can not be interpreted inconsistent with the General Health Law. Notice how the First Repeal Provision of General Health Law states that "Any provisions of equal or lower rank in contradiction with this Act", while Professional Societies Act no provision similar content.
And, on the other hand, should prevail on that basis the requirement that the pharmaceutical business (owner of the pharmaceutical company) is a pharmacist who holds the title of administrative approval and holding the title of ownership of the company.
We have seen that the possibility of joint ownership on administrative approval is tied to joint ownership of property (ownership), but could be owned by a professional society in the control or ownership of the company?.
To do this we must analyze the characteristics of the new professional society and confront those who have already defined as belonging to the pharmaceutical company.
First, we must bear in mind that there is a third type of society, different partnerships and limited liability companies, it may take one of the traditional ways in our law (Rule 1.2 of the Corporations Act professionals), because their specialty is not derived from the shape, but the object. Consequently, if society takes the form of capital could here play the objections previously made to them to be the holder of the domain on the pharmaceutical company (an external and limited liability). But would the question on the adoption of a form of partnership.
However, and secondly, we must make it clear that professional societies are always external companies, since its purpose is the direct exercise of the profession recognoscible against third parties, and not merely to regulate the internal agreements obligational between partners. This does not include the fact that, in addition, be required to register with the Mercantile Registry constitutive, to acquire "their" specific legal personality as such professional society. The external nature of the professional society at odds with the requirement that ownership of the domain on recognoscible pharmaceutical company is headed by the head of the administrative approval, and in both cases, be a pharmacist (individual licensed pharmacists).
And third, but an essential way, it should be noted that if we talk about is a form of company in the property jointly owned pharmaceutical company, the only loophole that could be recognized and said we would a partnership (civil or collective) internal that effectively display-only inter-party ownership of the company or for the purposes of regulating the rights of internally partners on the productive elements of heritage, or to distribute profits and losses, or with both purposes. But it no longer serves as both as the object, and ultimately are cases of media companies and disclosure of gains and losses, which expressly distinguished from the professional society, whose object is the joint exercise of the profession .
Ultimately, what can not lose sight of is that the professional society is a partnership between professionals (instrumental, for professional-media communication, or mixed-), which it internally between the partners as joint ownership of property of the company, though outwardly against third parties only appears as a community, but is a professional society (directly, in exercise of the profession). So, by the very legal definition of its objects, the professional society can not serve the purpose of displaying the ownership of control over drug company, but only to the common practice of the profession.
In conclusion, the co-ownership DOMINO IN PHARMACEUTICAL COMPANY ONLY ON CIVIL SOCIETY SUPPORTS AN INTERNAL OR CLASS OF MEDIA, COMMUNICATION, AND MIXED AMONG PROFESSIONAL (OUTSIDE COMMUNITY) BUT NOT A FOREIGN COMPANY FOR PURSUING THE PROFESSION AS A NEW COMPANY BUSINESS
In short: A PROFESSIONAL COMPANY CAN NOT BE AN OWNER OR OWNER pharmacies and therefore does not apply any provision of the LSP. Under English law the pharmaceutical health care profession may be exercised by a single individual or, now, also for several common through a pharmacy professional society (Article 1 of Act 2 / 2007 of March 15, professional societies). And in that practice in the pharmaceutical field, there are no distinctions between the professional, individual and professional-society, except the ownership of pharmacies in the opinion I've developed can only lie with individual. The scope of pharmacy professional society, therefore, it extends to other professional (and, to some extent, business) of the pharmaceutical sector. It is a professional society aimed at distribution or production, or analytical processes, etc. Even the practice of the profession as an adjunct or substitute in the pharmacy. Instead, it is not possible is the ownership-owned pharmacy.
And based on all the foregoing, it is obvious that from a standpoint of attorney, CAN NOT CONSTITUTE A PROFESSIONAL SOCIETY Whose purpose is the ownership of a pharmacy, and that ownership is a different concept of the profession that defines this type of society, NOR A PROFESSIONAL COMPANY WHOSE PURPOSE IS THE YEAR OF OFFICE BY THE PHARMACEUTICAL PROFESSION OF PHARMACY OPEN TO THE PUBLIC because the criteria discussed above make clear that inability. And these arguments, from a registry point of view are equally predicable to DENY THE REGISTRATION IN THE REGISTER AS A SOCIAL PURPOSE BUSINESS INCLUDED IN A SOCIETY.
However, some opinions have been expressed doubts that have entered the pharmacy profession and, finally, I should clarify, corroborating keep the position.
Some have seen the property referred to in art. 103.4 of the General Health Act is not in a civil sense, the property that falls on the material elements of the pharmacy, as the holder on such items may not be proprietary, but it is only in an administrative sense , the property rests with the administrative authority, which always corresponds to the holder. It concludes that ownership and title mentioned in Article 103.4 are quite similar. Therefore, it is said that the requirements of sanitary legislation governing the ownership, owned exclusively by the administrative authority, but not for property civilian pharmacy, which the DA 6 th of Professional Societies Act is interpreted in the sense of respecting those requirements, but to open the door to such professional societies on civilian property.
Against this position, in addition to everything stated so far, include:
That, if both expressions mean the same thing, there would be no reason to understand that the legislature was so redundant,
That can not be strictly speaking speak in terms of real property law on administrative permission, and
That the only argument that is supported is that it is necessary that falls on the material elements property, when yet this is not the property that is countersigned by Article 103.4, but the property lies with the company that is the pharmacy as a unitary whole, but we certainly can held various titles on the material elements compose.
analyzers
Other Professional Societies Act in the pharmaceutical field have concluded, in my view somewhat simplistic way, that this Act applies to the pharmacy to be that the intention of the Members Additional Provision voted 6 th, and by the expression of it "without prejudice to the provisions of this Act ...."
Against this position, as we said at the time included:
That the intention of Members is not a valid argument if it is contrary interpretation, as is the case, the guiding principles of the institution defined in the health legislation;
That the phrase "without prejudice to the provisions of this Act ..." has another meaning attributed different, as the pharmaceutical professional society there can be, but in other areas of professional practice different from the title and ownership of the pharmacy, as we discussed earlier examples;
Finally, among those who have considered the application of Professional Societies Act are, in turn, discrepancies. Thus, while some do not wonder more and those arguments are enough, despite how unjustified their formulation, others however, do recognize that society can not hold professional / owner of the administrative approval because the person is required LGS physical, but unavoidable option for implementation of the Professional Societies Act requires them to say that the professional society is what can carry on the business's own pharmacy. And for this they need to go-no more, no less, than a forced sale of temporary use authorization by the owner to the professional society. Some have even spoken of "commitment."
And, with this, we must remember that it is possible a transfer of the temporary use of administrative authorization. Not supported on any provisions of positive law could open the door to any type of assignment, and especially would only be comparable to a transmission that is only possible for pharmaceuticals (and the professional society allows 25% of their partners they were not).
In conclusion all the above must be repeated again in our view: THE LSP IS NOT APPLICABLE IN ANY WAY OR ANY OF ITS PRECEPTS AND PROPERTY OWNERSHIP ON THE OFFICE OF PHARMACY. Eduardo
Gragera
Glez.-Santiago Sevilla ICA Counsel, Attorneys LegalSur partner
Sevilla, January 8, 2008.
THE PURSUIT OF OWNERSHIP BY PHARMACEUTICAL PROFESSION OFFICE OF DRUG
Gragera Eduardo Glez.-Santiago, Seville ICA Counsel, Attorneys LegalSur partner
The purpose of this study is whether or not to implement the new social type of professional society as defined in the Act 2 / 2007, 15 March, in the field of pharmacy, for which we need from the analysis of what is meant by the pharmacy in its current economic legal aspect to consider second if new professional societies fit in legal settings from that in our law.
The concept of pharmacy has evolved considerably since its early consideration to their current reality. I believe that in any case, obviously, we are referring to both the amplitude is not local or establishment, as the exercise of the pharmacy profession in the form of the population provide the basic services listed in Article 1 of Law 16/1997 through an office open to public and private health care institution of public interest. This section describes the field of alternative pharmaceutical profession exercises that do not address the subject of our study (analysis, testing, orthopedics, etc.) As well as other potential companies in the pharmaceutical sector (industry / laboratories, distributors, etc. .)
In a first such exercise of activity involves the confluence of three key elements, as our courts have repeatedly pointed out.
• First is the practice of a profession, which is also health. Be a profession involves academic qualification requirements and licensing, but the health status in this field adds the necessary implementation of Law 44/2003 of 21 November, management of Health Professions.
• Second is the practice of a company, which also is sanitary. That is business, and even trade, directly or indirectly, as assimilated to it, as positions, "take their required membership of the Chambers of Commerce settled law, as well as the identification of undoubted civil, or commercial in its structure. However, that character also adds to health both essential administrative aspects.
• And so much so that it is in third place, a private practice but the public interest for such personal health information, what has come to be considered a "public wrong" (Supreme Court ruling June 9 1988, June 30, 1995 and 1997.The April 4, among others). This leads to the subjection of that year to major requirements (including ownership), a requirement of administrative authorizations and submission to planning.
In any case, our law these three elements should be noted that appear to be inseparable, leading to a genuine status of the activity. However, I do believe without a doubt that this activity now stands as the main business item, because difference is that this mode of practicing the profession of others: do through pharmacy open to the public, as an organized structure directed the market. So, even with its own characteristics, we face a real company, within which self-exercises-that the pharmaceutical profession. Thus, the Constitutional Court ruling of June 6, 2003 talks of a "pharmaceutical business model" to refer to the basic and essential elements of the pharmacy. Therefore, the statute must speak pharmaceutical company. And in this statute, although as we see conceptual relationships interwoven, yet always prevails in the public interest arising from the health objective pursued, so that the General Health Law entrusts the pharmaceutical services in the NHS, outside hospitals, businesses that are community pharmacies by the guarantee implies the intervention of the pharmacist as health professional, but not satisfied with a simple intervention, but that requires the title and ownership of it in the hands of it.
However, on several occasions and in various forums, it has no relevance to this unitary concept, but a mere partial administrative and civil aspects.
partial course of the case these approaches have relied heavily on call to resolve jurisdiction over certain disputes, but ultimately led to pose a doctrinal dichotomy between administrative and civil property ownership that we think is difficult to sustain. And that, however, we have seen precisely reproduced in the parliamentary debates preceding the enactment of the Companies Law Professionals, the influence that this entails for the purposes of this analysis.
However, the pharmacy is now a company that come together inseparable, forming a true status legal aspects and elements into a unified whole. Therefore, when difference between property ownership and civil administration incurred in absolute simplicity. Actually, what title should be discussed is the administration that equates to ownership of the civil authority and ownership (or commercial) which is identified with ownership of the company, but in both areas or concepts not as independent but converging within we call status of the pharmaceutical company.
This brings us, then, outlines the elements of the statute, the elements of the pharmaceutical company that is the pharmacy.
and, indirectly, but forced, to identify the role that the three elements characterizing this activity previously noted (exercise of health professions, health and exercise company private practice of public health in character)
First, in its subjective aspect, appears employer or owner.
Entrepreneur is one who holds legal title on the company, as a matter recognoscible, entitling him to its representation and management, direction, subject to liability to third parties.
Character reporting health status have already been imposed by the requirement that it be pharmaceutical, licensed individual Pharmacy, and that its title is owned company. And that is owned, means to recognize in himself the essential characteristics of the domain: that is, enjoy broader power to manage and provision (Article 348 of the Civil Code), subject to unlimited personal liability (the principle of liability universal, Article 1911 of the Code) with full recognition and enforceability against third parties (erga omnes). This, and nothing else, means that the administrative owner holds the property of the company
Second, in its objective aspect, we find what we might call the productive elements. And these elements, in turn, are personal and property.
personal items may be different but in any case, the personal health status reporting always requires the presence of health professionals (Article 5 of Law 16/1997, of 25 April, Regulatory Services Office Pharmacy) to require the pharmacist owner (or exceptionally, Regent), and power of substitutes and assistants or helpers. It is, therefore, in this situation and context in which our legal model is developed before exercising call the pharmacy profession through pharmacy, exiled and in practice a liberal exercise without own business characters of the past. The exercise of the pharmacist as the professional is direct, self-employed, while the substitutes and deputy or assistant is employed, under a lease of services or, more generally, labor relations that links you to one in the business environment. These categories of exercise or self-employed, on the other hand, refers explicitly, as one would expect, the Law on Management of Health Professions (including Articles 4.2, 40.1, 41 and 42).
As the assets, or rather cheap, as stated above can be identified as such usually the establishment or business premises, inventory, customers, transfer fees and other physical-economic elements of the company (furniture, machinery, software licenses, etc.)..
Finally, thirdly, in its formal aspect, also subject to a valid legal title (which, as we have seen, must be owned), the pharmaceutical company for their personal health also requires administrative authorization of the head owner of the company, so too must be the administrative head.
We say that the title should be owned or domain (owner) on the company as a whole unit, since it can refer only to the legal requirement, as the local business or other economic or financial production elements is no doubt different titles that fit the domain (rent, lease, deposit, loan, etc ...).
For administrative authorizations of them deal with state baseline both Article 3 of Law 16/1997, and Royal Decree 1277/2003 of 10 October, laying down General Bases on Authorization Centres, services and institutions, all without prejudice to the regional competition in the capital area.
But besides this, that to be a unitary business group, also leads to consider their impact on transmission level so that management ownership and ownership authorization civilian control over the company necessarily appear together, even for the purpose of such transmissions. Consequently, the transmission of the pharmaceutical company necessarily implies approval. Perfectly
could mean something else: that what is transmitted is the company and, once transferred, the purchaser is granted as a matter of discretion-regulated-no new authorization. State legislation, traditionally-and still today, it could be argued this thesis, but the reality has been diluting regional rules this possibility for the sake of the transfer of the permit itself.
What I argue is that there is always a correlation with the transfer of the business and can not understand the concept separately, nor reduced to the mere possibility of transmitting what actually happens is that when you convey the company necessarily be transmitted in the same administrative authority, as it essential formal element.
Therefore, we conclude that PHARMACIST EMPLOYERS, AS A COMPANY IS DRUG, A PHARMACEUTICAL TO BE IN ADDITION TO EXERCISE YOUR PROFESSION DIRECTLY IN YOUR COMPANY, FROM A BUSINESS PERSPECTIVE DISPLAYED TO THE OWNERSHIP OF ADMINISTRATIVE AUTHORIZATION, AND, VIEW FROM A CIVIL (OR TRADE) MUST hold title of ownership (OWNER) OF THE COMPANY THAT IS THE OFFICE OF PHARMACY.
Now: can we co-ownership in the administrative approval?, What about the corporate domain?. For
administrative authorization, health status of the company statute requires that, in principle, the "owner" is a single person has a degree in Pharmacy. That would follow Article 1 of Law 16/1997 referred to in the singular, the pharmacist-owner owner, that is, a single individual pharmaceutical and therefore confirms a degree in pharmacy and Article 6.2.b) of the management of Health Professions (Without prejudice to the functions according to their qualifications and specific expertise relevant to each health professional development or that may develop other professionals, are functions of each level health professions graduates the following: (...) b) Pharmacists: it is for Pharmacy Graduates in activities aimed at the production, storage and dispensing of medicines and the collaborative analytical processes, pharmacotherapy and public health surveillance).
However, today it must be viewed in the light of the specialties recognized in the regional legislation, in which the practically unanimous rule is to admit the co-ownership of several pharmacists in the authorization, and as such must be accepted. Always with the nuance required to link with the required identity with the ownership (which reflected the various regional laws mostly). In the rest there is no change: these potential co-owners must be pharmacists, that is, individuals licensed in pharmacy.
As for the possible joint ownership in the domain of the pharmaceutical company, again the health status of the company statute imposes that it holds the administrative head of the company domain ("Owner"), is holding in his person (and, therefore, as a fully recognoscible and enforceable against third parties) the widest powers of representation, management and provision it, subject to a regime of unlimited personal liability. If these characters may be a presumption of joint ownership of the company, said co-ownership is permissible, if not, must be rejected.
As such cases of joint ownership may be mentioned incidentally, as the vacant inheritance or the conjugal partnership. These cases, and even taking into account the controversial nature, they have been considered common assumptions Germanic community, property or common hand pars bonorum Valoris, leading to important civil implications for participation of heirs or spouses on the pharmaceutical company as a whole unit or on the different elements of production , which are beyond the scope of this study, but not distort the thesis that I maintain.
However, in the case of joint ownership is not incidental, but voluntary, we must bear in mind that our legislation does not exclude the possibility of transmission including a fee on the pharmacy, but always in favor of a pharmacist (such as the previous legislation recognized the STS of December 14, 1992, and the effect of STC June 5, 1997, Legal Grounds 8 - which shows how Article 4 of Law 16/1997 provides, inter alia, the transfer of offices pharmacy for another or "other" pharmacists).
However, this always lead to a co-ownership that compared to others (externally) involves a simple community of goods, but internally you can and should be regarded as domestic partnership (civil or collectively, as we opted for civil or commercial nature .)
This is so because, demanding legislation that embodies the administrative ownership in the person of the holder of the domain of the company, and as the administrative head should be a natural person can not be a personification differently by society, spreading a link externally only community without personification, and the business relationship must be maintained in the merely shared procedure. However, in the domestic sphere, they can govern obligational agreements between the joint owners of a society, the most frequent regular contributions to the common fund, and therefore shares in the joint ownership, and / or profit sharing discipline and losses (in essence, covenants and communication media). These companies internal, however, the liability regime that underlies the proficiency requirement imposed, should always be personal (and unlimited personal liability of partners). It is for this reason that capital firms are excluded from this area because, by their nature, are always outside (and this clashes with the required head embodiment in administrative and business owner) and limited liability (which hits the unlimited liability regime required administrative and business owner).
Having this scheme defining the pharmacy in our law, we will see if it fits into the new national professional society. Published
Law 2 / 2007 of March 15, Professional Corporation, its Sixth Additional Provision has been to provide that "Notwithstanding the provisions of this Act, the ownership of pharmacies are regulated by health regulations they is applied. "
Some, subject to conceptual reductionism prevailed, and following that simplification difference between ownership administrative and civilian property, have fallen into the misconception that the DA 6 th, to say that ownership is subject to sanitary and silent about property, has to devote to administrative ownership can not rest on the professional society for health regulations requires either an individual a degree in pharmacy, but instead of civilian property it will be possible to impose on the professional society because it is outside the health requirements and the new law rather than the exception.
So much so that after the parliamentary debates, the final text has been as a compromise that has sought to reflect an intermediate position between the initial project, not exceptions to the pharmacy of the implementation of the Act, and amendments People's Party and Convergence and Union, which both claim exemption as property ownership. And the transaction, as we see, has sought, as proposed by the Socialist Party to except the title, but instead allow the entry of professional societies in the property.
Nevertheless, we must consider that if the intention of our parliamentarians sometimes provides useful interpretative criteria in discerning the meaning of the legislature and the Law, the truth is that it always will not detract or the general legal principles that underpin an institution, or peremptory norms that govern systematically.
Therefore, if we presented the characters which underlie the regulation of pharmacy in our law, we actually based on two fundamental premises.
On the one hand, the character health of the pharmacy always prevails given the public interest to pursue, so modalizes pharmaceutical company is setting up the special status to which is attached. In this sense, I think: 1 .-
the social function of property, enshrined in Article 33 of the Constitution as the anchor of the powers of domination, founded the public health interest is defining the property that falls on the pharmaceutical company, so there is no interpretation of the concept of the property that contradicts the basic principles derived from such interest groups, and
2 .- that Professional Societies Act can not be interpreted inconsistent with the General Health Law. Notice how the First Repeal Provision of General Health Law states that "Any provisions of equal or lower rank in contradiction with this Act", while Professional Societies Act no provision similar content.
And, on the other hand, should prevail on that basis the requirement that the pharmaceutical business (owner of the pharmaceutical company) is a pharmacist who holds the title of administrative approval and holding the title of ownership of the company.
We have seen that the possibility of joint ownership on administrative approval is tied to joint ownership of property (ownership), but could be owned by a professional society in the control or ownership of the company?.
To do this we must analyze the characteristics of the new professional society and confront those who have already defined as belonging to the pharmaceutical company.
First, we must bear in mind that there is a third type of society, different partnerships and limited liability companies, it may take one of the traditional ways in our law (Rule 1.2 of the Corporations Act professionals), because their specialty is not derived from the shape, but the object. Consequently, if society takes the form of capital could here play the objections previously made to them to be the holder of the domain on the pharmaceutical company (an external and limited liability). But would the question on the adoption of a form of partnership.
However, and secondly, we must make it clear that professional societies are always external companies, since its purpose is the direct exercise of the profession recognoscible against third parties, and not merely to regulate the internal agreements obligational between partners. This does not include the fact that, in addition, be required to register with the Mercantile Registry constitutive, to acquire "their" specific legal personality as such professional society. The external nature of the professional society at odds with the requirement that ownership of the domain on recognoscible pharmaceutical company is headed by the head of the administrative approval, and in both cases, be a pharmacist (individual licensed pharmacists).
And third, but an essential way, it should be noted that if we talk about is a form of company in the property jointly owned pharmaceutical company, the only loophole that could be recognized and said we would a partnership (civil or collective) internal that effectively display-only inter-party ownership of the company or for the purposes of regulating the rights of internally partners on the productive elements of heritage, or to distribute profits and losses, or with both purposes. But it no longer serves as both as the object, and ultimately are cases of media companies and disclosure of gains and losses, which expressly distinguished from the professional society, whose object is the joint exercise of the profession .
Ultimately, what can not lose sight of is that the professional society is a partnership between professionals (instrumental, for professional-media communication, or mixed-), which it internally between the partners as joint ownership of property of the company, though outwardly against third parties only appears as a community, but is a professional society (directly, in exercise of the profession). So, by the very legal definition of its objects, the professional society can not serve the purpose of displaying the ownership of control over drug company, but only to the common practice of the profession.
In conclusion, the co-ownership DOMINO IN PHARMACEUTICAL COMPANY ONLY ON CIVIL SOCIETY SUPPORTS AN INTERNAL OR CLASS OF MEDIA, COMMUNICATION, AND MIXED AMONG PROFESSIONAL (OUTSIDE COMMUNITY) BUT NOT A FOREIGN COMPANY FOR PURSUING THE PROFESSION AS A NEW COMPANY BUSINESS
In short: A PROFESSIONAL COMPANY CAN NOT BE AN OWNER OR OWNER pharmacies and therefore does not apply any provision of the LSP. Under English law the pharmaceutical health care profession may be exercised by a single individual or, now, also for several common through a pharmacy professional society (Article 1 of Act 2 / 2007 of March 15, professional societies). And in that practice in the pharmaceutical field, there are no distinctions between the professional, individual and professional-society, except the ownership of pharmacies in the opinion I've developed can only lie with individual. The scope of pharmacy professional society, therefore, it extends to other professional (and, to some extent, business) of the pharmaceutical sector. It is a professional society aimed at distribution or production, or analytical processes, etc. Even the practice of the profession as an adjunct or substitute in the pharmacy. Instead, it is not possible is the ownership-owned pharmacy.
And based on all the foregoing, it is obvious that from a standpoint of attorney, CAN NOT CONSTITUTE A PROFESSIONAL SOCIETY Whose purpose is the ownership of a pharmacy, and that ownership is a different concept of the profession that defines this type of society, NOR A PROFESSIONAL COMPANY WHOSE PURPOSE IS THE YEAR OF OFFICE BY THE PHARMACEUTICAL PROFESSION OF PHARMACY OPEN TO THE PUBLIC because the criteria discussed above make clear that inability. And these arguments, from a registry point of view are equally predicable to DENY THE REGISTRATION IN THE REGISTER AS A SOCIAL PURPOSE BUSINESS INCLUDED IN A SOCIETY.
However, some opinions have been expressed doubts that have entered the pharmacy profession and, finally, I should clarify, corroborating keep the position.
Some have seen the property referred to in art. 103.4 of the General Health Act is not in a civil sense, the property that falls on the material elements of the pharmacy, as the holder on such items may not be proprietary, but it is only in an administrative sense , the property rests with the administrative authority, which always corresponds to the holder. It concludes that ownership and title mentioned in Article 103.4 are quite similar. Therefore, it is said that the requirements of sanitary legislation governing the ownership, owned exclusively by the administrative authority, but not for property civilian pharmacy, which the DA 6 th of Professional Societies Act is interpreted in the sense of respecting those requirements, but to open the door to such professional societies on civilian property.
Against this position, in addition to everything stated so far, include:
That, if both expressions mean the same thing, there would be no reason to understand that the legislature was so redundant,
That can not be strictly speaking speak in terms of real property law on administrative permission, and
That the only argument that is supported is that it is necessary that falls on the material elements property, when yet this is not the property that is countersigned by Article 103.4, but the property lies with the company that is the pharmacy as a unitary whole, but we certainly can held various titles on the material elements compose.
analyzers
Other Professional Societies Act in the pharmaceutical field have concluded, in my view somewhat simplistic way, that this Act applies to the pharmacy to be that the intention of the Members Additional Provision voted 6 th, and by the expression of it "without prejudice to the provisions of this Act ...."
Against this position, as we said at the time included:
That the intention of Members is not a valid argument if it is contrary interpretation, as is the case, the guiding principles of the institution defined in the health legislation;
That the phrase "without prejudice to the provisions of this Act ..." has another meaning attributed different, as the pharmaceutical professional society there can be, but in other areas of professional practice different from the title and ownership of the pharmacy, as we discussed earlier examples;
Finally, among those who have considered the application of Professional Societies Act are, in turn, discrepancies. Thus, while some do not wonder more and those arguments are enough, despite how unjustified their formulation, others however, do recognize that society can not hold professional / owner of the administrative approval because the person is required LGS physical, but unavoidable option for implementation of the Professional Societies Act requires them to say that the professional society is what can carry on the business's own pharmacy. And for this they need to go-no more, no less, than a forced sale of temporary use authorization by the owner to the professional society. Some have even spoken of "commitment."
And, with this, we must remember that it is possible a transfer of the temporary use of administrative authorization. Not supported on any provisions of positive law could open the door to any type of assignment, and especially would only be comparable to a transmission that is only possible for pharmaceuticals (and the professional society allows 25% of their partners they were not).
In conclusion all the above must be repeated again in our view: THE LSP IS NOT APPLICABLE IN ANY WAY OR ANY OF ITS PRECEPTS AND PROPERTY OWNERSHIP ON THE OFFICE OF PHARMACY. Eduardo
Gragera
Glez.-Santiago Sevilla ICA Counsel, Attorneys LegalSur partner
Sevilla, January 8, 2008.
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