Discount model for the purchase of medicines from abroad

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible among other things for competition law, has considered a discount model for pharmaceuticals operated by a pharmacist in Freilassing to be partially unobjectionable and confirmed the dismissal of the action directed against this pharmacist on this point.

The defendant runs a pharmacy in Freilassing. It offers its customers to order medicines from a pharmacy in Budapest and to collect them from it in Freilassing together with an invoice from that pharmacy. She promises her customers a discount of 22% for non-prescription medicines and 10% for prescription medicines. In the case of an order, the defendant first has the medicines delivered by a wholesaler from Germany to the pharmacy in Budapest, from where they are returned. On request, customers who obtain medicines in this way are given pharmaceutical advice at the defendant's pharmacy. The plaintiffs, who also operate pharmacies in Freilassing, regard the defendant's conduct - insofar as prescription medicines are dispensed - as a violation of the price regulations under pharmaceutical law. Insofar as the defendant dispenses other medicinal products in this way, the plaintiffs primarily object to the violation of other provisions of pharmaceutical law. With their action brought before the Traunstein Regional Court, they claimed injunctive relief and damages against the defendant.

The Traunstein Regional Court upheld the action. The Munich Higher Regional Court upheld this ruling only insofar as the defendant offered discounts on price-linked prescription medicines. In all other respects, the Higher Regional Court dismissed the action.

The Federal Supreme Court has now confirmed this decision. In particular, in agreement with the Higher Regional Court, it denied that the defendant had violated the ban on the transfer of medicinal products under § 73 of the German Medicinal Products Act. According to this, medicinal products subject to authorisation may only be imported into Germany under certain conditions. In particular, the shipment of medicinal products, even from other EU countries, to German end consumers is only permitted under strict conditions, which the Budapest pharmacy involved here does not fulfil. However, the Federal Supreme Court denied a shipment directly to end consumers in the case in dispute. Even if the model practised by the defendant is designed in such a way that it merely mediates the sale of the ordered medicinal products by the Budapest pharmacy and the sales contract is therefore concluded between the German customer and the Budapest pharmacy, the defendant is to be regarded as the recipient under medicinal product law, which in turn then dispenses the medicinal products to the customers. For the assessment under pharmaceutical law, it is decisive that a domestic pharmacy is involved in the distribution to the end consumer, which is obliged to check the quality, suitability and safety of the medicinal products to be distributed in this way and to advise the consumer if necessary. Therefore, under pharmaceutical law, the defendant's domestic pharmacy is the recipient of the medicinal products dispatched by the Budapest pharmacy. Therefore, the Federal Supreme Court denied a violation of the prohibition of shipment under § 73 AMG.

Moreover, the granting of a discount in the case of prescription-only medicines was prohibited by the lower courts precisely because the defendant sells the medicines as a domestic pharmacist. This is because, according to a decision of the Federal Social Court (Bundessozialgericht), the price regulations applicable in this respect, which prohibit such a discount, only apply in the case of dispensing by domestic pharmacies.

Judgment of the Federal Court of Justice of January 12, 2012 - I ZR 211/10 - Europa-Apotheke Budapest
Previous instances:
Traunstein Regional Court - Judgment of March 11, 2009 - 2 HKO 2534/08
Munich Higher Regional Court - Judgment of October 28, 2010 - 6 U 2657/09, A&R 2010, 279

Source: Press release of the BGH

Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de

 

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