Raue has successfully represented DocMorris in landmark proceedings against the North Rhine Chamber of Pharmacists on the permissibility of selling medicines via online marketplaces.
On 20 February 2025, the Federal Court of Justice issued a landmark ruling in which it ruled in favour of DocMorris (I ZR 46/24)
The subject of the legal dispute is the controversial and previously unresolved question of whether and, if so, which fees are compatible with the provisions of pharmacy law, in particular the ban on third-party ownership (Section 8 sentence 2 ApoG) and the “prescription brokerage ban” (Section 11 (1a) ApoG) introduced by the VOASG. The BGH has now ruled that marketplaces subject to a fee are permissible in principle: In the view of the BGH, a flat monthly basic fee that participating pharmacies pay for using the marketplace does not violate the prescription brokerage ban. § Section 11 (1a) ApoG prohibits collecting, brokering or forwarding prescriptions and demanding a benefit in return. According to the BGH, the basic fee is not a benefit “for” the brokering of prescriptions if the fee is charged regardless of the number of transactions or the turnover achieved. The BGH also ruled that remuneration of the marketplace provider based on a share of the sales price for non-prescription medicines (“OTC”) does not generally violate Section 8 sentence 2 ApoG. The situation is different only if the turnover or profit of a pharmacy is based to a significant extent on the transactions carried out via the online marketplace. It is therefore particularly important what proportion of turnover and profit the sale of OTC accounts for overall.
The North Rhine Chamber of Pharmacists had challenged DocMorris’ marketplace model on the grounds that a fee of 10% of the sales price for over-the-counter medicines and a flat-rate fee for using the marketplace, through which pharmacies can offer prescription-only medicines, violated Sections 8 and 11 (1a) of the German Pharmacy Act.
The Karlsruhe Regional Court had ruled in favour of the claim (13 O 17/22 KfH). The Higher Regional Court of Karlsruhe overturned the judgement of the Regional Court insofar as it prohibited a flat-rate fee for the use of the marketplace (6 U 418/22). Both the North Rhine Chamber of Pharmacists and DocMorris appealed against the judgement of the Higher Regional Court of Karlsruhe. While DocMorris’ appeal was successful, the BGH dismissed the appeal by the Chamber of Pharmacists.
This decision of the BGH is of fundamental importance. It is the first decision of the BGH on the admissibility of fees for pharmacies’ participation in pharmacy marketplaces. The BGH referred the case back to the Higher Regional Court of Karlsruhe to clarify the questions of whether a transaction fee of 10 % for the sale of over-the-counter medicines can lead to economic dependence of pharmacists in the specific case and whether the antitrust claims asserted by the Chamber of Pharmacists exist. However, pharmacies only generate less than 8 % of their turnover with OTC medicines, of which only a fraction is generated via marketplaces.
Raue represented DocMorris in the first two instances. Lawyer Dr Thomas Winter took over the representation before the BGH.
Raue has been advising DocMorris comprehensively for many years on regulatory issues as well as on pharmaceutical advertising and competition law.
(27 February 2025)