Raue represents DocMorris before the ECJ in landmark case on price advertising by EU mail order pharmacies

Raue is representing DocMorris in a landmark case against the North Rhine Chamber of Pharmacists concerning price advertising.

The oral hearing before the Fifth Chamber of the European Court of Justice (ECJ) took place on 27 June  2024 (Case C-517/23).

The dispute concerns various advertising measures used by the Dutch mail-order pharmacy DocMorris to attract customers for prescription medicines in Germany. The advertising measures are designed in such a way that customers who filled a prescription at DocMorris receive various discounts, such as price reductions or shopping vouchers for DocMorris’ non-prescription product range(so-called OTC and BPC products).

DocMorris believes that EU mail order pharmacies rely on these forms of price advertising to gain access to the German market. DocMorris also refers to the ECJ ruling of 19 October 2016 (Case C – 148/15). According to the ruling, price maintenance by EU mail order pharmacies when supplying prescription medicines to customers in Germany violates the free movement of goods and is not justified on health protection grounds.

The North Rhine Chamber of Pharmacists (Apothekerkammer Nordrhein) has called for a ban on advertising based on Section 7 (1) of the German Drug Advertising Act (Heilmittelwerbegesetz – HWG), arguing that vouchers encourage the misuse or overuse of medicines.

In this context, the BGH referred a number of questions on the interpretation of the Therapeutic Products Directive (Directive 2001/83) to the ECJ, which were heard in Luxembourg on 27 June 2024 and are now being examined by the ECJ.

General Advocate Marciej Spuznar will deliver his opinion on 17 October 2024.

Raue has been advising DocMorris for many years on regulatory issues as well as on pharmaceutical advertising and competition law. Raue partners Dr Katharina Wodarz, Dr Markus Plesser and Annette Feißel advised on the ECJ proceedings together with Anne Robert (Sidley Austin, Brussels).

(28 June 2024 )