Branches of one of Austria’s largest drugstore chains have been distributing brochures recently that advertise drugs by a pharmaceutical company established in the European Economic Area (EEA). This approach is permitted in the company’s home country. Customers can order a cata-logue online or by telephone using the number published in the brochure. Some Austrian pharmacists are critical of this method of selling drugs and are looking for ways to enter the market. They want either to be allowed to also sell drugs by mail or to prevent the pharmaceutical company from doing so.

Under the restrictive provisions of the Austrian Arzneimittelgesetz (AMG), pharmacies are not allowed to mail order drugs. This prohibition applies to prescription drugs and to drugs sold over the counter. In addition, pharmacies are forbidden from advertising prescription drugs and are also not permitted to advertise over-the-counter drugs if there is a risk that they may be confused with prescription drugs.

In cross-border situations where a company based in an EEA member state advertises over-the-counter drugs in that member state and offers to send them to another member state, the principles raised by the Doc Morris ECJ case apply. The conflicting provisions of the Austrian Arzneiwareneinfuhrgesetz (AWEG) and the AMG are ignored. The Supreme Court (OGH) ruled that drugs advertised in drugstore brochures for cross-border mail order from one EEA member state to another are legitimately distributed when used in the usual quantity for personal need and when the drugs delivered are only available over the counter in the exporting country. The promotion of drugs available over the counter from an EEA member state is also permitted under the same conditions.

Permitting mail ordering of prescription drugs in cross-border situations while forbidding mail ordering in domestic situations leads to reverse discrimination. This approach is acceptable under European Union law, but could constitute an infringement of the principle of equality under Austrian constitutional law, in particular if an Austrian citizen had a disadvantage compared to other EU citizens and no objective justification could be brought forward. Only the Austrian Constitutional Court is empowered to decide whether there is such an infringement. Domestic pharmacists could submit a petition under Art. 140 of the Austrian Federal Constitution Act (B-VG) as a possible legal recourse. This entitles persons who claim to be harmed in their rights by a general norm and for which the obtainment of a judgement or another decision appears unreasonable. For example, according to the Constitutional Court it would be unreasonable to have to launch a criminal offence in order to provoke criminal proceedings before a judicial or administrative authority.