On 19 October 2016, the Court of Justice of the European Union (ECJ) ruled on request for a preliminary ruling from the Association Against German Unfair Competition (Zentrale zur Bekämpfung unlauteren Wettbewerbs - ZzBUW) against an german organization for selfhelp for patients suffering from Parkinson's disease (Deutsche Parkinson Vereinigung - DPV).
DPV agreed with a German mail order pharmacy a bonus system which could benefit its members when they purchased prescription medicines for Parkinson's disease.
ZzBUW was of the opinion that this bonus system was in breach of the German Law on Medicinal Products for Human Use (Arzneimittelgesetz), which requires, by means of its own rules, a fixed and uniform price for the supply by pharmacies of medicinal products subject to medical prescription. The German court of first instance agreed wit ZzBUW, namely by considering that the practice of the bonus scheme was illegal under German national law. The DPV appealed against the judgment to the German higher courts, which in turn questioned the ECJ on the validity of national legislation in relation to the imposition of fixed and uniform prices in the light of the Community principle of free movement of goods.
Although a restriction on the free movement of goods can in principle be justified by the protection of public health, the ECJ has held that the German rules on uniform price fixing for the marketing of medicinal products subject to medical prescription are not adequate to pursue these objectives.
In that regard, the ECJ took the view that the imposition of uniform sales prices, as provided for by the German legislation, affects pharmacies based in a Member State other than the Federal Republic of Germany more heavily than pharmacies based in Germany. Could further prejudice market access for products from other Member States than domestic products.
In this regard, the judgment of the ECJ underlines that:
(I) for foreign pharmacies, mail order sales were the only relevant means for its suppl;
(II) for pharmacies by correspondence, price competition may be a more important determinant than for local pharmacies, which are differentiated by other parameters (such as emergency care and face-to-face Users).
The CJEU therefore considered that the system of bonuses granted to DPV members for the purchase of medicines for Parkinson's disease to pharmacies of correspondence was legitimate, on the ground that the German legislation infringes the principle of the free movement of goods within the Community.