Rebates and discounts allowed for prescription medicines

The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, ruled today that pharmaceutical wholesalers are not obliged to charge a minimum price when dispensing prescription medicines to pharmacies.


The defendant is a pharmaceutical wholesaler that sells prescription drugs (so-called Rx-articles). It advertised in an information leaflet and on its website that it would grant its pharmacy customers a discount of 3% plus 2.5% on the discounted price on all Rx-items up to € 70 and a discount of 2% plus 2.5% on the discounted price from € 70 up to the high price limit.

The plaintiff, the Zentrale zur Bekämpfung unlauteren Wettbewerbs (Centre for Combating Unfair Competition), considers this to be a violation of the price regulations in § 78 of the German Medicines Act (AMG) and § 2 of the German Medicines Price Ordinance (AMPreisV) in the version applicable since 1 January 2012. It filed a claim against the defendant for injunctive relief and compensation for warning costs.

Process history so far:

The Regional Court dismissed the action. On the plaintiff's appeal, the Higher Regional Court ruled in favour of the defendant. It held that the provision of § 2 (1) sentence 1 AMPreisV requires pharmaceutical wholesalers to charge a fixed surcharge of at least 70 cents when selling prescription medicines. This fixed surcharge may not be reduced by price reductions and must always be charged. The defendant's conduct was not consistent with this.

Decision of the Federal Supreme Court:

On appeal by the defendant, the Federal Supreme Court restored the judgment of the first instance dismissing the action. The provision of Section 2 (1) sentence 1 AMPreisV sets an upper price limit for the sale of prescription medicines with the wholesale surcharges provided for therein, but no lower price limit. This follows both from the wording of the provision itself ("may ... at most ... be charged") and from the comparison with the deviating wording of the provision on pharmacy surcharges for finished medicinal products in Section 3 (2) no. 1 AMPreisV ("... shall be charged ..."). According to this provision, wholesalers are not obliged to claim a minimum price that corresponds to the sum of the pharmaceutical entrepreneur's dispensing price, VAT and a fixed surcharge of 70 cents. He can therefore not only waive the price-dependent surcharge mentioned in § 2 (1) sentence 1 AMPreisV, which is variable up to a maximum of 3.15 per cent, but at most 37.80 euros, but also the fixed surcharge of 70 cents mentioned therein, in whole or in part.

Judgment of the BGH of 5 October 2017 - I ZR 172/16

Lower courts:

LG Aschaffenburg - Judgment of 22 October 2015 - 1 HK O 24/15, PharmR 2016, 56

OLG Bamberg - Judgment of 29 June 2016 - 3 U 216/15, WRP 2016, 1151


Source: Press release of the Federal Court of Justice of 05.10.2017


GoldbergUllrich Attorneys at Law 2017

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law