The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for, among other things, competition law, partially deemed a discount model for pharmaceuticals operated by a pharmacist from Freilassing to be unobjectionable and confirmed the dismissal of the action brought against this pharmacist on this point.
The defendant operates a pharmacy in Freilassing. She offers her customers the option to order medications from a pharmacy in Budapest and collect them, along with an invoice from that pharmacy, at her pharmacy in Freilassing. She promises customers a discount of 22% on non-prescription medications and 10% on prescription medications. In the event of an order, the defendant first arranges for the medications to be delivered by a wholesaler from Germany to the pharmacy in Budapest, from where they are subsequently returned. Upon request, customers who obtain medications in this manner receive pharmaceutical advice at the defendant's pharmacy. The plaintiffs, who also operate pharmacies in Freilassing, consider the defendant's conduct – insofar as prescription drugs are dispensed – to be a violation of pharmaceutical pricing regulations. Insofar as the defendant dispenses other pharmaceuticals in this manner, the plaintiffs primarily object to the violation of other pharmaceutical law provisions. With their action filed at the Regional Court of Traunstein, they sought an injunction and damages against the defendant.
The Regional Court of Traunstein granted the action. The Munich Higher Regional Court confirmed this judgment only insofar as the defendant had offered discounts on price-controlled prescription drugs. Otherwise, the Higher Regional Court dismissed the action.
The Federal Court of Justice has now confirmed this decision. In particular, in agreement with the Higher Regional Court (OLG), it denied a violation by the defendant of the pharmaceutical law prohibition on movement (Verbringungsverbot) under Section 73 of the German Medicines Act (Arzneimittelgesetz). According to this, pharmaceuticals requiring approval may only be imported into Germany under certain conditions. In particular, the shipment of pharmaceuticals from other EU countries to German end-consumers is only permitted under strict conditions, which the Budapest pharmacy involved here does not meet. However, the Federal Court of Justice denied a direct shipment to end-consumers in the present case. Even if the model practiced by the defendant is structured such that she merely mediates the sale of the ordered pharmaceuticals by the Budapest pharmacy, and the purchase contract therefore comes into existence between the German customer and the Budapest pharmacy, the defendant is to be regarded under pharmaceutical law as the recipient who then dispenses the medications to the customers. For the pharmaceutical law assessment, it is decisive that a domestic pharmacy is involved in the dispensing to the end-consumer, which is obliged to check the quality, suitability, and safety of the pharmaceuticals dispensed in this manner and to advise consumers if necessary. Therefore, under pharmaceutical law, the defendant's domestic pharmacy is the recipient of the pharmaceuticals shipped by the Budapest pharmacy. Consequently, the Federal Court of Justice denied a violation of the prohibition on movement under Section 73 of the German Medicines Act (AMG).
Furthermore, the defendant was prohibited by the lower courts from granting a discount on prescription drugs precisely because she dispenses the pharmaceuticals as a domestic pharmacist. This is because the pharmaceutical pricing regulations applicable in this regard, which prohibit such a discount, apply, according to a decision by the Federal Social Court, only 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 Federal Court of Justice
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de
