On 19 May 2009 the European Court of Justice (ECJ) has confirmed that Germany can have national legislation which prevents non-pharmacists from owning and operating pharmacies (joined cases C-171/07 and C- 172-07). This effectively is a ban in Germany on the outside ownership of pharmacies, and no pharmacy chains will be allowed to operate.

Background

According to German law, the principle of the owner-run pharmacy applies: thus only pharmacists are allowed to own and run pharmacies. There is a ban on outside ownership, in order to thus ensure the jobrelated independence of the pharmacist. Nevertheless, the Dutch internet pharmacy DocMorris applied for a pharmacy concession. The responsible ministry granted DocMorris a licence to operate a branch pharmacy provided that a pharmacist was hired to personally manage the pharmacy. The Chamber of Pharmacy filed a suit against this decision before the Administrative Court. The Court stayed the proceedings and presented the case to the ECJ.

The ECJ came to the conclusion that the German ban on outside ownership is valid. Although the ban could be seen as an intervention in the European freedom of establishment, this was balanced against the protection of health. Each Member State can decide which scope of protection it wants to achieve for the population. For this reason, a Member State is entitled to exclude nonpharmacists from owning and running a pharmacy if it believes that these persons do not have the necessary job-related independence and therefore constitute a risk for the public health.

The decision of the ECJ means that the channel of distribution of pharmacies in Germany will remain in its common structure. This decision has upset the plans of several wholesalers and drugstore chains which would have liked to become active in the German pharmacy market. Thus, drugstores will in the future cooperate on an increased basis with mail-order pharmacies and make their offer via so-called pick-up points, a concept which is even offered by petrol/gas stations. Pick-up points are subject to criticism on the grounds of health protection, but up until now the legislator has not decided whether to restrict or even ban this form of marketing.