Mail order company Otto may not recommend discounts to DocMorris pharmacies

Federal Constitutional Court confirms price commitment for prescription remedy
Karlsruhe (jur). Price fixing for German medicines also applies to mail-order pharmacies in other EU countries. With a decision published on Monday, April 18, 2016, this has now been confirmed by the Federal Constitutional Court in Karlsruhe (Ref .: BvR 929/14). It dismissed a complaint by the German mail-order company Otto against a ban on its cooperation with the Dutch mail-order pharmacy DocMorris.

Picture: contrast workshop - fotolia

Under the headline "Otto recommends DocMorris", the mail order company advertised the Dutch mail order pharmacy on its website at the end of April 2006. DocMorris promised customers various discounts. Statutory insured persons should receive an "immediate bonus" at the time of their first order in the amount of the additional payment due in German pharmacies and then still save half the additional payment for further orders.

The Landesapothekerverband Baden-Württemberg sued against Otto to refrain from such advertising for DocMorris. It infringes German price maintenance for prescription medicines.

On submission of the Federal Supreme Court, the Joint Senate of the highest federal courts had already ruled in 2012 that the fixed price also applies to mail-order pharmacies in other EU countries (Ref .: GmS-OGB 1/10, judgment of 22 August 2012, JurAgentur-message from next day).

As a result, the BGH had declared discounts of the Dutch Europa Apotheke Venlo inadmissible and decided that the price maintenance can not be circumvented by a delivery through German pharmacies (decisions and JurAgentur-message of 26 February 2014, Ref .: I ZR 72 / 08 and Az .: I ZR 77/09). Accordingly, Otto before the BGH was unsuccessful (judgment of 26 February 2014, Ref .: I ZR 79/10).

With its decision of 31 March 2016, which was now published in writing, the Federal Constitutional Court dismissed the constitutional complaint of the mail-order retailer. Otto had not been able to explain that the intervention in the freedom of occupation associated with the price maintenance was disproportionate. European law was also not violated. The BGH has explained in detail why the price maintenance is also in line with EU law and the case law of the European Court of Justice (ECJ) in Luxembourg. A submission to the ECJ was therefore not necessary.

DocMorris had also in vain in a dispute over manufacturer rebates before the Federal Constitutional Court, a reminder to the ECJ (order of 24 March 2016, Ref .: 2 BvR 1305/10, JurAgentur-message of 11 April 2016). mwo / fle