1st October 2020, the European Court of Justice in Luxembourg (ECJ) once again gave
its opinion on a pharmaceutical issue in a preliminary ruling
procedure. The legal dispute between a Dutch pharmacy and French opticians
concerned the admissibility of a large-scale advertising campaign for a
website. The Dutch pharmacy distributes non-prescription medicines to French
customers via this website. The referring court of appeal in Paris wanted to
know whether the pharmacy could be prohibited from advertising by means unworthy
of the profession, from placing paid links in comparison portals, or whether it
could be required to use domestic guidelines. With the latter, in the specific
case the customers should be asked to fill out an anamnesis questionnaire in
the order tool before the first order. The legal background of the question is
the Human Medicines Directive and the Directive on Electronic Commerce.
Advertising is part of online sales
The Luxembourg court considers advertising
an integral part of online sales. At best, restrictions could be justified by
the general interest, for example the protection of health or the dignity of a
regulated profession. The French Court of Appeal had to examine whether the
prohibition in question had the effect of preventing the Dutch service provider
from carrying out any advertising whatsoever outside its pharmacy. If so, the
ban has gone too far.
In detail, the court made the following
1. A Member State may not prohibit
pharmacies from placing paid links in search engines or price comparison
portals. This would only be permissible if it could be shown that such a rule
serves the protection of public health and does not go beyond what is necessary
to achieve this.
2. However, the completion of an online
patient history form may be requested before placement of the first order. The
relevant French legislation is in the interest of public health and does not go
beyond what is necessary.
3. A ban on discounts on the total price of
the order does not basically preclude the Directive on E-commerce.
Nevertheless, it must be sufficiently specific. The French court must also
examine that point.
The ruling is not a blueprint for Rx medicines
The ABDA - Bundesvereinigung Deutscher
Apothekerverbände e. V. welcomed the ruling in a first short statement. This supports the path
taken by the German legislator with the Law on Strengthening Local Pharmacies.
A central regulatory proposal therein intends to prohibit online pharmacies
based abroad from offering their customers a bonus on the purchase of
medicines. However, this provision is intended to apply to prescription-only
medicines (Rx medicines). European law risks are also seen here in Germany.
Against the background of pending infringement proceedings, Jens Spahn, Federal
Minister of Health, had asked the European Commission for its legal assessment
of the legislative proposal on this point and presented new arguments in the
form of a study to substantiate this. However, in a letter dated 2nd October , Thierry Breton (DG GROW), the
Commissioner responsible for the internal market, failed to reply. And time is
limited. The legislative procedure for the Law on Strengthening Local
Pharmacies is scheduled to be completed shortly.
On 19th October 2016, the European Court of Justice ruled that
standard pharmacy selling prices for prescription medicines sold in Germany by
mail order from another member state of the European Union (EU) constitute an
unjustified restriction of the free movement of goods in the internal market.
Even if price regulations apply without discrimination to domestic pharmacies
and to pharmacies established in other Member States, they would represent a
greater obstacle for pharmacies outside Germany, as price competition is a more
important competitive factor for mail-order pharmacies than for traditional
local pharmacies. This central argument was also expressly referred to once
again in a statement by the European Commission on 7th March 2019 in the
context of the pending infringement proceedings no. 2013/4075.