The German fixed-price system for prescription-only medicinal products (also applicable to foreign pharmacies) has been declared unlawful by the European Court of Justice (ECJ). Such fixed-price system for the supply of prescription-only medicinal products by pharmacies constitutes an unjustified restriction of the free movement of goods within the EU and thus is contrary to EU law. Fixed prices
make it more difficult for pharmacies being located in another EU-Member States to gain access to the German market. Further, the restriction of the free movement of goods is not an appropriate means to ensure the protection of the health of humans by preservation of the German supply structure.
Hereby, the ECJ associates itself with the Advocate-General’s opinion from June 2016 and argues that increased price competition constitutes positive incentives. Further, it has not been demonstrated that the German fixed-price system would result into a reduction of the number of retail pharmacies and thus would risk the supply of medicinal products in cases of emergency. On the contrary, certain factors tend to suggest that increased price competition between pharmacies (retail and mail-order pharmacies) would be conducive to a uniform supply of medicinal products and to an increased quality of the services provided by retail pharmacies. Moreover, price competition could be benefiting patients in so far as prescription-only medicinal products might be offered at a more attractive price than the respective current one.
The underlying case was a legal dispute between the German self-help organisation „Deutsche Parkinson Vereinigung“ and a German association for protection against unfair competition (“Zentrale zur Bekämpfung des unlauteren Wettbewerbs”). The self-help organisation among its members promoted a conjunction with the Dutch mail-order pharmacy DocMorris. These members could benefit when purchasing prescription-only medicinal products from DocMorris by being given certain incentives.
According to the German association for protection against unfair competition such benefit scheme is contrary to the fixed-price system for prescription-only medicinal products.
The ECJ’s particular argumentation is being keenly awaited. Therefore, further information on this subject will be provided hereunder as soon as the ECJ’s opinion will be published.