The Austrian Supreme Court (Decision 4Ob13/12h) clarified, that pharmacists within the European Union are allowed to sell medicine to Austria via online distribution. However this applies only to drugs which are not subject to a prescription and which are used for personal needs only. Drugs which could have negative effects on a person’s health if used without a doctor’s supervision, even if they are used as intended, still have to be subject to a prescription according to the prescription regulation (“Rezeptpflichtverordnung”). In Austria drugs are only legally available in pharmacies or – if no prescription is required - in certain drug stores, which are authorized for the trade with drugs according to the Austrian Law on Medical Products (Arzneimittelgesetz).
The Austrian Supreme Court also stated that the general prohibition of the distribution of medicines via mail order sale, contained in the Austrian Law on Medical Products, violates EU-law.
The Court also declared, that the advertising of an online-shop for drugs, which are not subject to prescription, is permitted, provided that the following requirements are met:
- the drug is approved at least in the country of dispatch, and
- there is a drug legally available in Austria with the same ingredients and composition.
This decision has the effect that Austrian pharmacists, who are prohibited from selling online by the Austrian Law on Medical Products, are disadvantaged in relation to their EU-competitors. This can be seen as discrimination of domestic pharmacists, particularly in relation to their German and Swiss competitors, who can enlarge their customer base extensively via online distribution. Although this could be appealed to the Austrian Constitutional Court it has not been done so yet.