The Procurement Senate of the Higher Regional Court of Düsseldorf ruled that while BAHN-BKK's procedure, through which the health insurance fund intended to dictate discount agreements and their terms to pharmaceutical companies, was inadmissible, such contracts are indeed permissible under certain conditions.
In April 2011, BAHN-BKK contacted pharmaceutical manufacturers, informing them of its intention to conclude discount agreements for approximately 290 active ingredients with as many manufacturers as possible by July 1, 2011. Among other objectives, the health insurance fund aimed to ensure that insured individuals would receive 'their medication' – the one prescribed by their doctor – at the pharmacy, rather than potentially a different one, even if it contained the same or a similar combination of active ingredients. The health insurance fund had specified discount rates ranging from 3% to 39.8%, depending on the active ingredient. Initially, no public tender was issued, but one was subsequently conducted.
Four pharmaceutical companies (generic manufacturers) challenged this approach. Consequently, the 3rd Federal Procurement Chamber ruled in June 2011 that BAHN-BKK's procedure violated procurement law and necessitated a Europe-wide tender. Moreover, BAHN-BKK had infringed upon principles of competition. For example, BAHN-BKK, rather than the bidder – as is customary in a tender – determined the price, thereby depriving bidders of the opportunity to calculate their offers. The Chamber emphasized that the health insurance fund's intention to conclude discount agreements with as many manufacturers as possible, instead of making a selection decision among various bidders as typically provided for in procurement procedures, did not negate the obligation to tender.
Today, the Procurement Senate of the Higher Regional Court ruled that the BAHN-BKK discount agreements under review were contrary to procurement law. Specifically, the tender was not divided into 'lots,' and companies were required to offer their entire product range concerning the affected active ingredients or combinations thereof. Furthermore, the contract clause stipulating that all affiliated companies of a pharmaceutical group also had to conclude the agreement was deemed objectionable. In its decision, the Senate emphasized that only the specific manner of the award procedure had been challenged. However, in the Senate's view, the conclusion of pharmaceutical discount agreements in the intended manner, outside the scope of procurement law, is not fundamentally inadmissible and may be permissible under certain conditions.
The decision is legally binding and will be available online at www.nrwe.de in approximately two weeks.
(File numbers: VII-Verg 57/11, VII-Verg 58/11, VII-Verg 59/11 and VII-Verg 67/11)
Source: Press release of the Higher Regional Court (OLG) Düsseldorf
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Email: info@goldberg.de
