The First Civil Senate of the Federal Court of Justice, which is responsible for competition law among other things, pronounced the decisions in six cases heard on 15 April 2010, each of which dealt with the question of the permissibility of bonus systems when dispensing prescription medicines.
The pharmacy owners sued for injunctive relief under the aspect of breach of law (§ 4 No. 11 UWG) and partly also under that of inappropriate customer influence (§ 4 No. 1 UWG) granted their customers price discounts, reimbursement of the practice fee, shopping vouchers and/or premiums when purchasing prescription medicines according to different systems. The plaintiffs - in three cases the Wettbewerbszentrale and in the other cases competitors of the defendant - considered this to be, among other things, a violation of the price fixing provisions contained in the pharmaceutical law (§ 78 para. 2 sentence 2 and 3, para. 3 sentence 1 AMG; § 1 para. 1 and 4, § 3 AMPreisV) as well as of the prohibition of advertising gifts (§ 7 HWG) regulated in the law on advertising of medicinal products. The lower courts had considered the objections raised against the discount and bonus systems to be predominantly well-founded and had allowed an appeal in each case.
The Federal Supreme Court (BGH) did not only consider an infringement of the pharmaceutical price maintenance as given if the pharmacist sells a price-linked medicinal product at a price other than the price to be calculated according to the Pharmaceutical Price Regulation (Arzneimittelpreisverordnung). Rather, the court also found such an infringement if the price of the price-linked medicinal product was set at the correct price, but the customer was granted advantages in connection with the purchase of the medicinal product which made the purchase appear economically more favourable for him. The relevant provisions of pharmaceutical law are applicable in addition to Section 7 of the German Medicines Act, as this provision is intended to protect the consumer against improper influence and therefore pursues a different purpose than the price regulation under pharmaceutical law, which is intended in particular to ensure the nationwide and uniform supply of the population with medicines, which is in the public interest. The provisions of Section 78(2), second and third sentences, (3), first sentence, AMG, Section 1(1) and (4), Section 3 AMPreisV also constitute market conduct regulations within the meaning of Section 4 no. 11 UWG because they are intended to regulate (price) competition among pharmacies.
However, the conduct of the pharmacists complained of is only capable of appreciably impairing the interests of competitors and other market participants within the meaning of Section 3 (1) UWG if there is no advertising gift permissible under Section 7 (1) sentence 1 HWG. The Federal Court of Justice (BGH) considered a promotional gift worth one euro to be permissible, but affirmed that a promotional gift worth € 5 would have a noticeable adverse effect.
In the case I ZR 72/08, the question also arose as to whether German pharmaceutical pricing law also applies to medicinal products imported into Germany by way of mail order. In the underlying case, a pharmacy based in the Netherlands had offered medicines for the German market by way of internet mail order and advertised a bonus system according to which the customer was to receive a bonus of 3% of the value of the goods, but at least €2.50 and at most €15 per prescribed pack when purchasing prescription medicines on a statutory prescription. The bonus was to be offset directly against the invoice amount or as part of a future order.
The Senate would like to answer the question in the affirmative as to whether German pharmaceutical pricing law also applies to medicinal products imported into Germany by mail order, but considers itself prevented from doing so by a decision of the 1st Senate of the Federal Social Court, which decided in a different context that German pharmaceutical pricing law does not apply to such medicinal products (BSGE 101, 161 para. 23 ff.). This question is therefore submitted to the Joint Senate of the Supreme Courts of the Federation for a decision.
Judgment of 9 September 2010 - I ZR 193/07 - OUR THANKS TO YOU
OLG Bamberg - 3 U 24/07 - Judgment of 31 October 2007
Schweinfurt Regional Court - 5 HK O 30/06 - Judgment of 19 January 2007
Judgment of 9 September 2010 - I ZR 37/08
OLG Karlsruhe - 6 U 141/07 - Judgment of 13 February 2008
Karlsruhe Regional Court - 15 O 74/07 KfH IV - Judgment of 28 June 2007
(Reference for a preliminary ruling) Order of 9 September 2010 - I ZR 72/08 - Save money when buying medicines!
OLG Frankfurt am Main - 6 U 26/07 - Judgment of 29 November 2007
Darmstadt Regional Court - 12 O 123/06 - Judgment of 22 December 2006
Judgment of 9 September 2010 - I ZR 98/08 - Bonus points
KG Berlin - 5 U 189/06 - Judgment of 11 April 2008
LG Berlin - 102 O 91/06 - Judgment of 14 November 2006
Judgment of 9 September 2010 - I ZR 125/08
OLG Frankfurt am Main - 6 U 118/07 - Judgment of 5 June 2008
Darmstadt Regional Court - 12 O 403/06 - Judgment of 8 May 2006
Judgment of 9 September 2010 - I ZR 26/09
OLG Karlsruhe - 4 U 160/07 - Judgment of 12 February 2009
LG Offenburg - 5 O 107/06 KfH - Judgment of 12 September 2007
Source: Press release of the Federal Supreme Court (BGH)
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)