ECJ should decide on sales tax at drug price deductions

BFH submits dispute to the highest EU court
Munich (jur). The different handling of sales tax on pharmaceuticals for patients on the one hand, the statutory and on the other hand, the private health insurance is unlawful according to conviction of the Federal Finance Court (BFH). With a resolution published on Wednesday, August 17, 2016, the Munich judges therefore presented the complaint of a pharmaceutical manufacturer to the European Court of Justice (ECJ) in Luxembourg for examination (Ref .: V R 42/15).

The dispute is about the price discounts and manufacturer rebates that the pharmaceutical companies have to grant for the majority of the drugs to the statutory and private health insurance companies. For patented medicines, this is 7 percent, for others 16 percent.

In the case of statutory health insurance, pharmacies immediately charge a correspondingly reduced price. The manufacturers deliver their medicines at the reduced price. Accordingly, the basis of assessment for VAT will be reduced accordingly.

Private insured, however, pay the full price and submit the bill to their health insurance. The insurance refunds the patient the full amount, the discount is then paid directly by the manufacturer. Because there is no closed service chain from the manufacturer to the consumer at the reduced price, the manufacturers remain with the private insured on the deductible sales tax.

The BFH considers this inadmissible. The amount of turnover tax should not depend on whether medicines are issued to private or statutory health insurance, according to the decision of 22 June 2016, now published in writing. The principle of equal treatment enshrined in the European Charter of Fundamental Rights was infringed. Since the right of VAT is largely based on EU requirements, the Munich judges asked the ECJ whether the unequal calculation of value added tax is compatible with EU law, depending on the insured status of the patient. mwo / fle