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 supplying prescription-only medicines to pharmacies.
Facts of the case:
The defendant is a pharmaceutical wholesaler that distributes prescription-only medicines (referred to as Rx articles). In an information sheet and on its website, the defendant advertised that it would grant its pharmacy customers a 3% discount plus a 2.5% cash discount on the discounted price for all Rx articles up to EUR 70, and a 2% discount plus a 2.5% cash discount on the discounted price for items from EUR 70 up to the high-price threshold.
The plaintiff, the Centre for Combating Unfair Competition (Zentrale zur Bekämpfung unlauteren Wettbewerbs), considers this to be a violation of the pricing regulations stipulated in Section 78 of the German Medicines Act (Arzneimittelgesetz - AMG) and Section 2 of the German Regulation on Pharmaceutical Prices (Arzneimittelpreisverordnung - AMPreisV), in the version effective since January 1, 2012. The plaintiff sought injunctive relief against the defendant and reimbursement of warning notice costs.
Previous course of proceedings:
The Regional Court dismissed the claim. However, upon the plaintiff's appeal, the Higher Regional Court ruled against the defendant as requested. It held that Section 2 (1) sentence 1 of the AMPreisV mandates a fixed surcharge of at least 70 cents for pharmaceutical wholesalers when dispensing prescription-only medicines. This fixed surcharge, it argued, could not be reduced by price concessions and had to be consistently applied. The defendant's conduct was deemed inconsistent with this regulation.
Decision of the Federal Court of Justice:
The Federal Court of Justice, upon the defendant's appeal on points of law, reinstated the first-instance judgment that had dismissed the claim. Section 2 (1) sentence 1 of the AMPreisV establishes a price ceiling for the supply of prescription-only medicines, including the specified wholesale surcharges, but does not stipulate a price floor. This interpretation is derived both from the explicit wording of the provision itself ("may ... at most ... be charged") and from a comparison with the distinct wording of the regulation concerning pharmacy surcharges for finished medicinal products in Section 3 (2) No. 1 AMPreisV ("... must be charged ..."). Consequently, wholesalers are not obligated to demand a minimum price equivalent to the sum of the pharmaceutical manufacturer's ex-factory price, value-added tax, and a fixed surcharge of 70 cents. They are therefore permitted to waive, either in full or in part, not only the price-dependent variable surcharge specified in Section 2 (1) sentence 1 AMPreisV (up to a maximum of 3.15 percent, but not exceeding EUR 37.80) but also the aforementioned fixed surcharge of 70 cents.
Judgment of the BGH of October 5, 2017 – I ZR 172/16
Lower Courts:
Regional Court Aschaffenburg – Judgment of October 22, 2015 – 1 HK O 24/15, PharmR 2016, 56
Higher Regional Court Bamberg – Judgment of June 29, 2016 – 3 U 216/15, WRP 2016, 1151
Source: Press release of the Federal Court of Justice of October 5, 2017
GoldbergUllrich Law Firm 2017
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law
Email: info@goldberg.de
