The first civil senate of the Federal Court of Justice, which is responsible for claims of the Federal Court of Justice has ruled that it is illegal under competition law for pharmacies to offer customers that it is illegal under competition law for pharmacies to offer their customers low-value of prescription medicines, such as a voucher for a bread roll or a such as a bread roll voucher or a one-euro voucher.
Proceedings I ZR 206/17
Facts:
The defendant runs a pharmacy in Darmstadt. She handed over a customer in September 2014 on the occasion of the purchase of a prescription medicine. voucher for "2 Wasserweck rolls or 1 Ofenkrusti". Ofenkrusti". The voucher could be redeemed at a bakery near the pharmacy. bakery in the vicinity of the pharmacy. The plaintiff, the Zentrale zur Bekämpfung took action against the defendant for injunctive relief, the sale of prescription-only, price-restricted medicines with the with the free distribution of a bread voucher.
Process history so far:
The district court upheld the action. The appeal of the defendant was unsuccessful.
The Court of Appeal assumed that the addition of a voucher with the purchase of a prescription-only medicinal product was in violated the price maintenance regulations for medicinal products(§ 78 para. 2 sentences 2 and 3 AMG). At these provisions are regulations on market conduct, so that such a such a violation is also anti-competitive(§ 3a UWG). In view of the fact that the granting of low-value the gift of small items of minor value for the purchase of medicines under the law on the advertising of medicinal products, the case-law had negated the noticeability of a against the law on the price of medicinal products. However, this could no longer be the legislature had amended the relevant provision of the Therapeutic Products the corresponding provision of the Therapeutic Products Advertising Act with effect from 13 August 2013. that benefits or advertising gifts granted in contravention of the price regulations of the are inadmissible(section 7(1) sentence 1 no. 1 HWG). The fact that, according to the of the Court of Justice of the European Union, the price provisions of the of the Medicines Act do not apply to pharmacies established in other Member States of the Member States of the European Union(ECJ, Judgment of 19 October 2016, C-148/15, GRUR 2016, 1312 - Deutsche Parkinson Vereinigung/Zentrale), the application of these provisions to pharmacies established in pharmacies established in Germany neither for reasons of Union law nor for reasons of or for reasons of constitutional law.
In its appeal, which was allowed by the court of appeal, the defendant continued to pursue its motion to dismiss the action.
Proceedings I ZR 60/18
Facts:
The defendant runs a pharmacy in Berlin. He granted his customers a discount in the form of a one-euro voucher in 2014. one-euro voucher. The customers could redeem the voucher for another the next purchase at the defendant's pharmacy. The plaintiff is the Central for Combating Unfair Competition. It sued the defendant for an injunction the defendant from offering a voucher to customers who redeem a prescription for a prescription-only prescription for a price-linked medicinal product, a shopping voucher for one euro. to customers who redeem a prescription for a price-linked medicine.
Process history so far:
The district court upheld the action. On the appeal of the The court of appeal dismissed the action on the defendant's appeal.
The Court of Appeal held that the granting of a one-euro voucher by the one-euro voucher by the defendant when dispensing prescription prescription medicines to consumers was in breach of the price-fixing provisions for for medicinal products(§ 78 para. 2 sentences 2 and 3 AMG). These price-fixing provisions are compatible with the freedom to exercise one's profession and the principle of proportionality. The The fact that, according to the case-law of the Court of Justice of the European Union, the price the price regulations of the Medicinal Products Act do not apply to pharmacies of the European Union do not apply to pharmacies established in other Member States of the European Union(ECJ, judgment of 19 October 2016, C-148/15, GRUR 2016, 1312 - Deutsche Parkinson Vereinigung/Zentrale), their application to the domestic sale of does not preclude its application to the sale of medicinal products within Germany and does not does not lead to unlawful discrimination against pharmacies established in Germany. The infringement of the price-fixing provisions at issue here through the of a small gift of low value was not, however, anti-competitive. It not capable of appreciably harming the interests of consumers, other market participants or competitors(Paragraph 3a of the UWG). This assessment was not contradicted by the fact that according to the the current version of the Act on the Advertising of Medicinal Products. of small value is also inadmissible in contravention of the pharmaceutical (section 7(1) sentence no. 1 HWG).
With the appeal allowed by the court of appeal, the plaintiff has pursued her claim further.
Decisions of the Federal Supreme Court:
In the proceedings I ZR 206/17, the Federal Supreme Court dismissed the defendant's appeal. dismissed. The plaintiff's appeal in the proceedings I ZR 60/18 was successful. successful.
According to the decisions of the Senate, the addition of both a voucher as well as a one-euro voucher for the purchase of a prescription prescription medication is anti-competitive, because both promotional gifts violate the applicable price maintenance regulations(§§ 3, 3a UWG in conjunction with § 7 para. 1 sentence 1 no. 1 HWG, § 78 para. 2 sentences 2 and 3, para. 3 HWG). sentences 2 and 3, para. 3 sentence 1 AMG).
In the case of advertising for medicinal products within the meaning of Section 2 AMG, according to Section 7 7 para. 1 sentence 1 HWG, benefits and other advertising gifts (goods or services) may be goods or services may only be offered, advertised or granted if one of the exceptions expressly to 5 of this provision applies.
This fundamental prohibition of advertising of value is a market conduct a market conduct regulation within the meaning of § 3a UWG. A violation of this prohibition may give rise to claims for injunctive relief (§ 8 UWG). The provision of § 7 1 sentence 1 HWG is intended to counteract the abstract danger that consumers, when deciding which consumers when deciding whether and, if so, which remedies to use, be unobjectively influenced by the prospect of advertising gifts. Insofar as § 7 Section 7 (1) sentence 1 no. 1 half-sentence 2 of the HWG the price regulations of the German Medicines Act, this is also intended to ruinous price competition between pharmacies is to be prevented and a nationwide and to ensure a nationwide and uniform supply of the population with medicines. and uniform supply of the population with medicinal products.
The judgment of the Court of Justice of the European Union in the case of "Deutsche Parkinson Vereinigung/?Zentrale"(Judgment of 24 November 2016 - C-148/15, GRUR 2016, 1312 = WRP 2017, 36) The application of the price provisions of the German Medicines Act referred to in section 7(1) sentence 1 no. 1 HWG of the German Medicines Act for pharmacies established in Germany. pharmacies located in Germany. According to this decision, the regulations on the rules on fixed prices for pharmacies established in other Member States of the European Union. infringement of the free movement of goods(Article 34 TFEU). Domestic situations without a cross-border cross-border situations, as in the cases in dispute, the regulations on the free the free movement of goods are not applicable.
The judgement of the Court of Justice of the European Union also does not lead to discrimination against nationals that is inadmissible under national constitutional law. It does not follow from Article 3(1) of the Basic Law that a regulation for nationals must be for other EU citizens, as long as the unequal treatment is based on objective on objective grounds. With regard to the pharmaceutical price maintenance a substantial objective reason already arises from the fact that the national legislature is restricted in its freedom of action with regard to the the cross-border sale of medicinal products by the freedom of movement of goods the freedom of movement of goods regulated in the primary law of the European Union and the the case law of the Court of Justice of the European Union, for the sale of medicinal products within the sale of medicinal products within Germany, there is no corresponding restriction. restriction exists. A different treatment of pharmacies based in Germany on the one hand Germany, on the one hand, and pharmacies established in other Member States of the European Union on the other hand is justified because the fixed price for medicinal products is price maintenance for medicinal products is restricted to pharmacies established in market, the effect of fixed prices on pharmacies established in Germany is less pronounced than on pharmacies than on pharmacies established in other Member States, which are particularly market, which are particularly dependent on mail-order sales for direct access to the German market. mail order. The continued application of the price maintenance provisions of the law on medicinal products does not violate Article 12(1) of the Basic Law for pharmacies established in Germany. The encroachment on the freedom to exercise one's profession by the provisions of § 78 paras. 1 and 2 AMG is freedom to practise one's profession is justified in view of its purpose of ensuring and uniform supply of medicines to the population, which is in the public interest. supply of the population with medicinal products. At the broad discretionary powers of the legislature, the proportionality of the the proportionality of the price regulations is only called into question if the purpose of the law is no longer justified due to the extent of the sale by foreign mail-order pharmacies can no longer be generally achieved or if the statutory regulation for domestic pharmacies can no longer be domestic pharmacies in view of the competitive pressure from other European countries. That the courts of appeal have not established that this is currently the case.
The infringement of the market conduct provision of § 7 para. 1 sentence 1 HWG is, after all, within the meaning of § 3a UWG, capable of appreciably impairing the noticeably impair the interests of market participants. The fact that both both a bread roll voucher and a one-euro voucher are promotional of little value does not change this. The legislator is the amendment of the Therapeutic Products Advertising Act with effect from 13 August 2013. law with effect from 13 August 2013, the legislator assumed that any legally prohibited deviation from the pharmacy price for prescription medicines is likely to cause an undesirable is likely to trigger undesirable price competition between pharmacies. between pharmacies. The clear legal regulation, according to which any granting of a gift or other promotional gift within the meaning of Section 7 (1) sentence 1 no. 1 HWG, which violates the price regulations of the Medicines Act is inadmissible must not be The fact that such an infringement is classified as not appreciable and thus as not appreciable and is therefore not considered to be anti-competitive. A The financial insignificance of the promotional gift is excluded, since the the financial insignificance of the promotional gift is ruled out, as the legislator must be strictly adhered to.
Lower courts I ZR 206/17:
Darmstadt Regional Court - Judgment of 10 June 2016 - 14 O 186/15
OLG Frankfurt am Main - Judgment of 2 November 2017 - 6 U 164/16, GRUR 2018, 208 = WRP 2018, 105
Lower courts I ZR 60/18:
LG Berlin - Judgment of 13 May 2015 - 97 O 12/15, PharmR 2015, 414
KG Berlin - Judgment of 13 March 2018 - 5 U 97/15, GRUR 2018, 839
Judgments of the BGH of 6 June 2019 in the proceedings I ZR 206/17 and I ZR 60/18
