prospect is that infringement procedure No. 2013/4075 will end soon. If the EC
follows a recommendation made by its departments, it will use its discretionary
powers in the proceedings against Germany and it will not refer the matter to
the ECJ (European Court of Justice). The subject matter of the dispute is the
uniform pharmacy selling prices for prescription medicines, which also apply in
Germany to foreign mail-order pharmacies.
The new pharmacy law keeps to uniform prices
the ECJ had already ruled in their decision of October 19, 2016 (C-148/15) that
tying foreign mail-order pharmacies to uniform selling prices in Germany
violates European law, German politicians were looking for a way to protect
their local pharmacies. The solution they found was to move the uniform price
specification out of the Pharmaceuticals Act and into Social Insurance Code
book V. This is what happened with the act for supporting local pharmacies.
This manoeuvre also caused problems for the Federal Ministry of Justice which
is why the draft law that came into force on 15th December last year, was
submitted to Brussels for study (see News
has responded. A letter sent on 8th July this year by the Directorate General
for the Internal Market, Industry, Entrepreneurship and SMEs to the online
pharmacies involved, notified them that it intends to discontinue the
proceedings against Germany. The
presentation of its legal opinion and request to the Federal Republic of
Germany on 7th March 2019 for Germany to comment on the matter is not going to
be followed by any further steps at this moment. This was preceded by numerous
visits to the EC made by the top people from the Federal Ministry of Health
between August 2019 and August 2020. On 11th September 2020, 14 months
after the cabinet decision, the German parliament was able to deal with the
draft in its first reading.
Germany's reasoning is not convincing ...
reasoning by the EC's departments is insightful. Their position is that the ban
on bonuses for prescription-only finished medicinal products is to be regarded
in the same way as a quantitative import restriction and that this is therefore
contrary to EU law is upheld. The
references made by the German legislator to the financial equilibrium and
protection of the statutory health insurance system are not being complied
... but there are "opportunistic reasons"
they are surprisingly jumping to the federal government's side with their new reasoning: Germany
is deeply involved in creating an e-prescription infrastructure by 2022. The
coronavirus pandemic has shown how important this is. A dispute over the
national pricing policy would not be conducive to this important switchover
process. A stable legal framework is needed right now. What will happen when
the digitisation process in Germany has progressed remains to be seen.
EC has a margin of discretion as to whether and when it should initiate
infringement proceedings or refer a case to the ECJ. A discretion that it can
use strategically. In the present case, it is proposed that the Commissioners
close the case for "opportunistic reasons". Unless the complaining
online pharmacies come up with additional reasons or information.
That isn’t the end of it
for now: If the EC follows the recommendation made by the DG GROW,
then the all-clear can be given for German pharmacies. But will it last? The
EC’s departments intend to continue monitoring the pharmacy market situation in
Germany. Naturally, the appraisal made by national courts remains unaffected.
The Dutch mail order pharmacies, which are the ones that are mainly affected,
could well consider going there. The recommendation made by the EC's
departments is a huge setback for them. Nor does it take up the cudgels for an
economical and up-to-date supply of medicines.