In the case of non-prescription medicinal products, a Member State may limit the advertising possibilities of pharmacies.

On 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 judgement:

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.

Background

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.