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EU mail-order pharmacies do not have to stick to the drug price
Luxembourg (jur). The price maintenance for prescription drugs does not exist in its current form. In any case, for mail-order pharmacies in other EU countries, it is inadmissible, the European Court of Justice (ECJ) ruled in Luxembourg on Wednesday, 19 October 2016 (Ref .: C-148/15). It leads to unjustified restrictions on the free movement of goods.
Pharmacies in Germany are only allowed to sell medicines at predefined prices. This results from the price set by the manufacturer plus surcharges, which are set out in a Federal Ordinance (Arzneimittelpreisverordnung). With these supplements, the services of the wholesalers and pharmacies are compensated. According to the case law of the Federal Court of Justice (BGH) in Karlsruhe, price maintenance is also valid for mail-order pharmacies in other EU countries; Evasion attempts have also failed before the Federal Court of Justice (judgment and decision as well as the JurAgentur notification of 26 February 2014, files: I ZR 72/08 and I ZR 77/09). According to BGH judgments from 2010, German pharmacies may therefore lure their customers with small gifts, rebates or bonus points (so-called Rx bonuses) worth up to one euro (judgments of 9 September 2010, ref .: I ZR 193/07 and I ZR 98/08).
Image: vege - fotolia The aim of price maintenance is to ensure nationwide care and also the emergency service of pharmacies. The pharmacies also argue that the price maintenance protects acute patients who are not able to price comparisons anyway.
The ECJ did not follow these arguments and now approved the German Parkinson Association, a self-help organization representing the chronically ill. According to their own information, the club has 23,000 members.
The Parkinson Association had negotiated bonuses with DocMorris. From 2009, members received a discount of 0.5 percent on the purchase price, even for prescription drugs. As with other customers, the mail order pharmacy also takes over half of the additional payment.
On the other hand, the German headquarters complained of combating unfair competition. In their opinion, the rebates violate the price fixing for pharmaceuticals.
In the first instance, the district court of Dusseldorf had banned the bonuses. The Higher Regional Court (OLG) Düsseldorf then submitted the dispute before the ECJ and thus passed the BGH. It generally asked whether price maintenance for prescription medicines was compatible with the free movement of goods.
This has been denied by the ECJ. The price maintenance is "an unjustified restriction on the free movement of goods".
As grounds, the Luxembourg judges referred to the great importance of mail order for pharmacies in other EU countries. He is for them the most important or even the only access to the German market. While local pharmacies can also score with their customers through advice and other services, the price is a particularly important competitive factor for mail-order pharmacies. As a result, mail-order pharmacies in other EU countries are particularly affected by price-fixing.
It is true that restrictions on the free movement of goods are permissible in the interests of the protection of public health. However, Germany has not demonstrated that price fixing is necessary to achieve the stated objectives.
Literally, the Luxembourg judges stated: "In particular, it has not been established to what extent a better geographical distribution of traditional pharmacies in Germany can be ensured by setting uniform prices. On the contrary, some of the documents submitted suggest that more price competition among pharmacies would promote a consistent supply of medicines, as incentives to establish a presence in areas where higher prices might be required due to the lower number of pharmacies. "
There is also no evidence that price competition through mail-order pharmacies could endanger the advisory services and emergency services of German pharmacies. On the contrary, according to the European Court of Justice, "It could also turn out that for traditional pharmacies, if they face price competition in mail-order pharmacies, there would even be an incentive to offer more services in the general interest such as the manufacture of prescription medicines."
In any case, patients and their health insurances would benefit from price competition, the Luxembourg judgment concludes.
Formally, the OLG Dusseldorf must now decide on the dispute. With the ECJ judgment in the back it can also deviate from the previous BGH jurisdiction.
In any case, with a new regulation, Germany could legally retain price maintenance for pharmacies in Germany. Because health care is not harmonized across the EU, only pharmacies in other EU countries can rely on the principle of free movement of goods. "National discrimination" would be permissible (according to ECJ on freedom of movement, judgment and JurAgentur report of 5 May 2011, Ref .: C-434/09).
DocMorris welcomed the Luxembourg judgment; It was "a good day for patients in Germany and the whole of Europe". You could "save now with the mail order pharmacy DocMorris again". For this there is now "a final answer and legal certainty," said the company in Heerlen in the Netherlands. mwo