Judgment;Summary — ECLI:EU:C:2021:609
Date: 2021-07-15
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions;Approximation of laws;Acts of the institutions
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-190/20 — 1 
Case C-190/20 
Request for a preliminary ruling 
Date lodged: 
5 May 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
20 February 2020 
Defendant and appellant in the appeal on a point of law: 
DocMorris N.V. 
Applicant and respondent in the appeal on a point of law: 
Apothekerkammer Nordrhein 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE) 
ORDER 
[…] 
in the case of 
DocMorris N.V., […] the Netherlands, 
defendant and appellant in the appeal on a point of law, 
[…] 
versus 
Apothekerkammer Nordrhein, […] Düsseldorf, 
applicant and respondent in the appeal on a point of law, 
[…] [Or. 2] 
EN 
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The First Civil Chamber of the Federal Court of Justice […] 
makes the following order: 
I. The proceedings are stayed. 
II. The following question on the interpretation of Directive 2001/83/EC of the 
European Parliament and of the Council of 6 November 2001 on the 
Community code relating to medicinal products for human use (OJ 2001 
L 311, p. 67 et seq.), last amended by Regulation (EU) 2019/1243 of the 
European Parliament and of the Council of 20 June 2019 adapting a number 
of legal acts providing for the use of the regulatory procedure with scrutiny 
to Articles 290 and 291 of the Treaty on the Functioning of the European 
Union (OJ 2019 L 198, p. 241), is referred to the Court of Justice of the 
European Union for a preliminary ruling: 
Is it compatible with the provisions of Title VIII and, in particular, with 
Article 87(3) of Directive 2001/83/EC if a national provision (in this case 
the first sentence of Paragraph 7(1) of the Gesetz über die Werbung auf dem 
Gebiete des Heilwesens (Law on Advertising in the Field of Medicine, ‘the 
HWG’)) is interpreted as prohibiting a mail-order pharmacy established in 
another Member State from using a prize competition to attract customers if 
participation in the prize competition is linked to the submission of a [Or. 3] 
prescription for a medicinal product for human use subject to a medical 
prescription, the prize offered is not a medicinal product but another object 
(in this case an electric bike worth EUR 2 500 and electric toothbrushes), 
and there is no risk that irrational and excessive use of that medicinal 
product is encouraged? 
Grounds: 
1 A. The applicant is the professional representative body for pharmacies in the 
North Rhine region. One of its tasks is monitoring compliance with the 
professional duties incumbent on pharmacists. The defendant is a mail-order 
pharmacy established in the Netherlands that supplies prescription medicines to 
customers in Germany. 
2 In March 2015, the defendant carried out an advertising campaign throughout 
Germany using flyers for a ‘Grand Prize Draw’ in which the main prize was a 
voucher for an electric bicycle worth EUR 2 500 and the second to tenth prizes 
were electric toothbrushes. A condition for participating in the prize draw was the 
submission of a prescription. 
3 The applicant considers this form of advertising to be anti-competitive. By letter 
from its lawyer of 1 April 2015, it issued a formal notice to the defendant without 
success. 
DOCMORRIS 
 
3 
4 By its action, the applicant requests that the defendant be ordered, on pain of 
penalty payments defined in greater detail, to desist from offering to end 
consumers in Germany a prize draw that is linked to the dispensing of a 
prescription, where this takes place as follows: [Or. 4] 
 
 
5 The applicant also requested that the defendant by ordered to reimburse the costs 
of the pre-action letter of formal notice in the amount of EUR 2 348.94 plus 
interest. 
6 The Landgericht (Regional Court) dismissed the action. The appellate court varied 
the judgment of the Regional Court and found against the defendant, in 
accordance with the form of order sought […]. By the appeal on a point of law, 
for which this Chamber granted leave and which the applicant claims should be 
dismissed, the defendant seeks the restoration of the judgment of the Regional 
Court. 
7 B. The successful outcome of the appeal on a point of law depends on the 
interpretation of EU law. […] [Or. 5] […] [Statements regarding the procedure] 
The question arises as to whether a prohibition, based on the first sentence of 
Paragraph 7(1) of the HWG, on the prize draw advertising in question when 
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distributing prescription medicinal products is consistent with the purposes of 
Directive 2001/83/EC on the Community code relating to medicinal products for 
human use and Articles 86 to 90, in particular Article 87(3), of that directive. 
8 I. This Chamber takes the view that the appellate court rightly held that a right to 
obtain a prohibitory injunction owing to an infringement of point 13 of the first 
sentence of Paragraph 11(1) of the HWG does not exist. [amplification] 
9 […] 
10 […] [Or. 6] […] 
11 […] 
12 II. Without an answer to the question referred, it is not possible to assess 
conclusively whether the applicant is entitled to obtain the claimed prohibitory 
injunction against the defendant owing to an infringement of the first sentence of 
Paragraph 7(1) of the HWG. 
13 1. Pursuant to the first clause of the first sentence of Paragraph 7(1) of the HWG, 
it is prohibited to offer, announce or grant monetary advantages and other 
promotional gifts (goods or services) or accept them as a healthcare professional, 
unless one of the exceptions laid down by law in the second clause of the first 
sentence of Paragraph 7(1) of the HWG is applicable. Excluded from the 
prohibition in the first clause of the first sentence of Paragraph 7(1) of the HWG 
are monetary advantages or promotional gifts which are of minor objects of low 
value (point 1 of the second clause of the first sentence of Paragraph 7(1) of the 
HWG) or which are granted as a specific sum of money or as a sum of money to 
be calculated in a specific way (point 2(a) of the second clause of the first 
sentence of Paragraph 7(1) of the HWG). However, in the case of both exceptions, 
monetary advantages and other promotional gifts in respect of medicinal products 
remain prohibited if they are granted in breach of the pricing rules applicable 
under the Law on medicinal products. The general prohibition on promotional 
gifts provided for in the first sentence of Paragraph 7(1) of the HWG is intended 
to counter, by minimising as far as possible advertising by means of gifts or 
advantages in the field of medicinal products, the abstract risk of consumers being 
influenced by the prospect of promotional gifts in a non-objective manner when 
deciding whether to use medicinal products, and, if so, which ones to use […]. 
14 2. The appellate court did not err in law in assuming that the matter falls within 
the scope of the first sentence of Paragraph 7(1) of the HWG. [amplification] […] 
[Or. 7] […] 
15 3. The appellate court rightly assumed that the defendant’s advertising in question, 
which consists of the possibility of taking part in a prize draw upon the 
submission of a prescription, is product-related and, therefore, the provisions of 
the Law on the advertising of medicinal products are, in principle, applicable to 
that advertising. 
DOCMORRIS 
 
5 
16 a) Not all advertising for medicinal products within the meaning of point 1 of 
Paragraph 1(1) of the HWG is subject to the provisions of the Law on the 
advertising of medicinal products. Only product-related advertising (product and 
sales advertising) falls within the scope of that law, and not general corporate 
advertising (business and image advertising), which is used to advertise the 
reputation and performance of the company in general without making reference 
to specific medicinal products. The answer to the question that is decisive for 
determining the applicability of the Law on the advertising of medicinal 
products — whether the advertising to be assessed is sales or corporate 
advertising — depends crucially on whether, based on the overall appearance of 
the advertising, the focus is on the presentation of the company or on the 
promotion of certain, or at least individually identifiable, products […]. Even 
advertising for a pharmacy’s entire range of goods can be product-related […]. 
There is no convincing reason to accept the inducement from [Or. 8] advertising 
by means of gifts or advantages, which is regarded by the legislature as being 
fundamentally undesirable in the advertising of medicinal products, especially 
where that form of advertising is used for a particularly large number of medicinal 
products […]. 
17 b) The provisions of Directive 2001/83/EC do not preclude the assumption that 
the provisions of the Law on the advertising of medicinal products also cover 
advertising for a pharmacy’s entire range of goods. 
18 aa) The provisions of the Law on the advertising of medicinal products must be 
interpreted in accordance with EU law, in the light of the provisions of Directive 
2001/83/EC. That directive completely harmonised the advertising of medicinal 
products (CJEU, judgment of 8 November 2007, C-374/05 [2007] ECR 1-9517 = 
GRUR 2008, 267, paragraphs 20 to 39, Gintec […]). 
19 bb) It cannot be gathered from the provisions of Directive 2001/83/EC on 
advertising (Title VIII and VIIIa, Articles 86 to 100) that they only cover 
advertising for individual medicinal products. 
20 (1) Pursuant to Article 86(1) of Directive 2001/83/EC, ‘advertising of medicinal 
products’ is any form of door-to-door information, canvassing activity or 
inducement designed to promote the prescription, supply, sale or consumption of 
medicinal products. Pursuant to the first indent of Article 86(1) of Directive 
2001/83/EC, the concept of ‘advertising of medicinal products’ covers, in 
particular, the advertising to the general public of medicinal products, such as that 
at issue here. It is apparent from the wording of that provision, in particular from 
the expression ‘any form’, that the concept of advertising of medicinal products 
adopted by the European Union legislature is very broad (CJEU, [Or. 9] judgment 
of 5 May 2011, C-316/09 [2011], ECR I-3249 = GRUR 2011, 1160, paragraph 29, 
MSD Sharp & Dohme). 
21 (2) Directive 2001/83/EC contains, in Article 88(1) to (4), rules for advertising to 
the general public for entire groups of medicinal products. That Directive 
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2001/83/EC covers only advertising to the general public of individual medicinal 
products does not follow from the fact that Articles 89 and 90 of Directive 
2001/83/EC refer to ‘advertising to the general public of a medicinal product’; 
those provisions merely stipulate, for advertising relating to a particular medicinal 
product, what specific information must be provided in relation to that product 
and what information is not permitted. The other provisions — Article 86(1) and 
Article 88(1) to (3) of Directive 2001/83/EC — refer to ‘advertising of medicinal 
products’ and ‘advertising of medicinal products to the general public’. 
Accordingly, the directive also covers advertising for medicinal products in 
general and not only advertising relating to specific medicinal products […]. 
22 c) The advertising in question therefore has the necessary connection with 
products. The promised benefit in the form of participation in the defendant’s 
prize draw is neither a promotion of the services of the mail-order pharmacy 
operated by it nor an advantage provided for other company-related reasons. 
According to the specific act of infringement referred to in the form of order 
sought by the applicant, participation in the prize draw is linked to the submission 
of a prescription. The advertising therefore relates to medicinal products subject to 
prescription, which are thus available only on prescription, and is therefore 
automatically product-related. 
23 4. The appellate court rightly assumed that, in the present case, the opportunity 
offered by the defendant to participate in a prize draw constituted a promotional 
gift within the meaning of the first sentence of Article 7(1) of the HWG. [Or. 10] 
[amplification] 
24 […] 
25 […] 
26 5. The appellate court did not err in law in assuming that none of the exceptions 
laid down in the second clause of the first sentence of Paragraph 7(1) of the HWG 
are applicable. [Or. 11] [amplification] 
27 […] 
28 […] 
29 6. The question arises, however, as to whether the defendant’s advertising 
influences its customers in a non-objective manner. [Or. 12] 
30 a) The appellate court assumed that advertising the possibility of participating in a 
prize draw after a prescription had been dispensed substantiated the argument that 
there was an abstract risk of the target group of the advertising being influenced in 
a non-objective manner. It could not be ruled out that a patient who needed a 
medicinal product subject to prescription and had obtained the prescription 
required for that product from his doctor could decide to have the prescription 
dispensed by the defendant’s mail-order pharmacy without considering whether 
DOCMORRIS 
 
7 
purchasing the medicinal product from a brick-and-mortar pharmacy would be 
more suited to his personal needs. Mail-order pharmacies could provide advice 
only by telephone and on express request. It could be important for the customer 
to receive unsolicited advice even when a prescription was being dispensed, for 
example with regard to its interaction with other medicines. The pharmacist was 
trained to do this. The customer’s decision to use either a brick-and-mortar 
pharmacy or a mail-order pharmacy was therefore relevant to his health. The 
advertising by means of a prize draw at issue here influenced that decision in a 
non-objective manner. 
31 b) The fact that participation in a prize draw involves a pecuniary advantage does 
not in itself justify prohibiting the defendant from using the contested advertising 
because it influences potential customers in a non-objective manner. 
32 aa) It is true that in its ‘Deutsche Parkinson Vereinigung’ decision (judgment of 
19 October 2016, C-148/15, GRUR 2016, 1312 […]) the Court of Justice of the 
European Union also assumed that traditional pharmacies are, in principle, better 
placed than mail-order pharmacies to provide patients with individually tailored 
advice given by the staff of the dispensary and to ensure a supply of medicinal 
products in cases of emergency, and mail-order pharmacies cannot, given the 
limited services that they offer, adequately replace such services. In the light of 
this fact, however, it also assumed that [Or. 13] price competition is capable of 
providing a more important factor of competition for mail-order pharmacies 
established in another Member State than for traditional pharmacies in Germany, 
since price competition lays the basis for their potential to access the German 
market directly and to continue to be competitive in it (CJEU, GRUR 2016, 1312, 
paragraph 24, Deutsche Parkinson Vereinigung). The Court of Justice therefore 
held that a system of fixed sales prices for medicinal products subject to a 
prescription, such as that laid down in the German legislation, constitutes a 
measure having equivalent effect to a quantitative restriction on imports, within 
the meaning of Article 34 TFEU, since that legislation has a greater impact on 
pharmacies established in other Member States than on pharmacies established 
within German territory, a fact which could impede market access for products 
from other Member States more than it impedes such access for domestic products 
(CJEU, GRUR 2016, 1312, paragraphs 26 and 27, Deutsche Parkinson 
Vereinigung). In addition, it considered that German legislation on prices for 
medicinal products, which provides for a system of fixed prices for the sale by 
pharmacies of prescription-only medicinal products for human use, cannot be 
justified on grounds of the protection of health and life of humans, within the 
meaning of that Article 36 TFEU, inasmuch as that legislation is not appropriate 
for attaining the objectives pursued (CJEU, GRUR 2016, 1312, paragraph 46, 
Deutsche Parkinson Vereinigung). 
33 bb) It can be inferred from these statements made by the Court of Justice of the 
European Union in the ‘Deutsche Parkinson Vereinigung’ judgment that mail-
order pharmacies established in other Member States of the European Union 
cannot, in principle, be denied the possibility of compensating for the limitation 
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on the services that they offer — which is brought about the fact that it is 
impossible for them to provide patients with individually tailored advice on site — 
by engaging in price competition with brick-and-mortar pharmacies in the 
Member State concerned. There is such price competition in the present dispute. 
[Or. 14] 
34 (1) It is true that there is no price competition for customers between pharmacies 
in Germany that is comparable to other product sectors due to the regulatory 
framework governing the supply of medicinal products subject to a 
prescription — irrespective of the system of fixed prices that still exists for that 
group of medicinal products. There is a general obligation to have sickness 
insurance in Germany pursuant to Paragraph 5(1) of the Fifth Book of the 
Sozialgesetzbuch (Social Code, ‘the SGB V’). Everyone must be covered by 
either statutory or private insurance. A consequence of this general obligation to 
have insurance is that when a medicinal product is prescribed by a doctor, it is not 
the patient who bears the costs of obtaining it, but the sickness insurance scheme 
or company with which the patient is insured. When purchasing prescription 
drugs, those insured under a statutory insurance scheme merely have to pay a 
contribution for each packet of medicinal products, referred to as a ‘prescription 
fee’ by the appellate court, of no more than ten euros and no less than five euros 
(first sentence of Paragraph 61 of the SGB V). 
35 (2) Regarding the sale of medicinal products subject to a prescription, mail-order 
pharmacies established in another Member State of the European Union generally 
do not engage in competition for customers in Germany by offering prices for 
medicinal products that are lower than those of German pharmacies, but by 
advertising to customers using monetary advantages. These monetary advantages 
are intended to encourage customers in Germany to have their prescriptions 
dispensed not at a brick-and-mortar pharmacy but via a foreign mail-order 
pharmacy. For example, they may advertise using a bonus corresponding to half 
of the statutory contribution for people with statutory sickness insurance […], a 
bonus when placing a first order […], a bonus that depends on the price of the 
medicinal product and is [Or. 15] limited to EUR 15 […], a monetary gift of 
EUR 15 as an expense allowance for participating in quality assurance […], 
remuneration for the customer’s participation in a test for a medicinal product 
[…], or a gift for attracting a new customer […]. 
36 (3) This is also the case in the present dispute. The defendant does not advertise to 
patients in Germany by means of prices for medicinal products that are lower than 
those of German pharmacies, but by means of a different monetary advantage 
granted to the patient. 
37 c) The question arises, however, as to whether the advertising restrictions 
provided for in the first sentence of Paragraph 7(1) of the HWG in respect of 
advertising with monetary advantages are justified in the present dispute by the 
purposes of Directive 2001/83/EC and Articles 86 to 90 thereof, in particular 
Article 87(3). This is the subject matter of the question referred. The Chamber 
DOCMORRIS 
 
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takes the view that there is good reason to believe that advertising by offering a 
random chance of winning a prize in the context of selling medicinal products 
subject to a prescription must be regarded as influencing, in a non-objective 
manner, the potential customers targeted by the defendant and, for this reason, the 
advertising in question must be prohibited. 
38 aa) It cannot be assumed that a prohibition on advertising by means of monetary 
advantages for prescription-only medicines is already justified under 
Article 88(1)(a) of Directive 2001/83/EC, which, in accordance with recital 44 of 
that directive, requires Member States to prohibit advertising of prescription-only 
medicinal products to the general public. [Or. 16] 
39 Even if advertising to the general public which is intended — as is the case in the 
present dispute — to generally promote the sale of medicinal products subject to a 
prescription by granting monetary advantages does constitute advertising of 
medicinal products to the general public within the meaning of the first indent of 
Article 86(1), the Chamber considers that it does not constitute the generally 
prohibited advertising of medicinal products subject to a prescription to the 
general public within the meaning of Article 88(1)(a) of Directive 2001/83/EC. 
40 The purpose of Article 88(1) of Directive 2001/83/EC is to prevent, in order to 
protect health, advertising to the general public from providing patients with 
incentives to ask their doctor to prescribe them a medicinal product subject to a 
prescription. On the other hand, the purpose of price-based advertising or 
advertising offering other monetary benefits in respect of medicinal products 
subject to a prescription is to encourage patients to choose a particular pharmacy 
when purchasing a medicinal product already prescribed for them. Price-based 
advertising in the distribution of medicinal products subject to a prescription is an 
inherent part of competition and is not covered by Article 88(1) of Directive 
2001/83/EC. 
41 bb) However, it is conceivable that advertising to the public which offers the 
possibility of participating in a prize draw in the context of selling medicinal 
products subject to a prescription is contrary to the objectives of Directive 
2001/83/EC and the provisions in Articles 86 to 90 of that directive, in particular 
Article 87(3). 
42 (1) Directive 2001/83/EC prohibits, in Article 94(1), the use of gifts, pecuniary 
advantages or benefits in kind when promoting medicinal products to persons 
qualified to prescribe them. Pursuant to that provision, no gifts, pecuniary 
advantages or benefits in kind may be supplied, offered or promised to such 
persons unless they are inexpensive and relevant to the practice of medicine or 
pharmacy. Directive [Or. 17] 2001/83/EC does not contain a corresponding 
provision for the advertising of medicinal products to the general public. It is true 
that, pursuant to Article 87(3) of Directive 2001/83/EC, the advertising of 
medicinal products must encourage the rational use of the medicinal product by 
presenting it objectively and without exaggerating its properties and, moreover, it 
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must not be misleading. However, Directive 2001/83/EC does not lay down 
specific rules on the advertising of medicinal products by promoting the 
possibility of participating in prize draws. 
43 (2) The Court of Justice has regarded the advertising of non-prescription 
medicinal products to the general public by means of prize draws as being 
difficult to accept on account of the need, pursuant to recital 45 and Article 87(3) 
of Directive 2001/83/EC, to prevent any excessive and ill-considered advertising 
which could affect public health (CJEU, GRUR 2008, 267, paragraph 55, Gintec). 
The advertising of a medicinal product by means of prize draws encourages the 
irrational and excessive use of that medicinal product if it is presented as a gift or 
a prize, thus distracting the consumer from an objective evaluation of whether he 
needs to take such medicine (CJEU, GRUR 2008, 267, paragraph 56, Gintec). 
44 (3) Based on the Court of Justice’s decision in ‘Gintec’, it is not possible to 
provide an unequivocal answer to the question of whether a prohibition on the 
prize draw advertising in question is consistent with Directive 2001/83/EC, 
because that decision was based on a different set of facts. The advertising in the 
present dispute does not relate to a specific, over-the-counter medicinal product. 
Rather, the advertising refers to prescription-only medicinal products in a general 
manner. Recital 45 of Directive 2001/83/EC, on which the Court of Justice relied 
for its interpretation, refers only to advertising to the general public of non-
prescription medicinal products. Furthermore, the prize does not consist of the 
medicinal product itself, unlike in the ‘Gintec’ case, but an electric bicycle and 
electric toothbrushes. According to the [Or. 18] findings of the appellate court, 
there is also no risk that irrational and excessive use of that medicinal product is 
encouraged in the present dispute. 
45 cc) According to the findings of the appellate court, however, patients who have 
been prescribed a medicinal product subject to a prescription are induced by the 
prize draw advertising in question to dispense with the unsolicited and 
comprehensive advice provided in a brick-and-mortar pharmacy, which is 
objectively in their interest. If a doctor has prescribed a medicinal product, it is 
true that it can be assumed that he has provided the patient with advice on that 
medicinal product and has informed him, in particular, of the risks and side effects 
of the prescribed medicinal product. However, this does not mean that unsolicited 
advice from the pharmacist a second time can be dispensed with in every case. 
Pursuant to Paragraph 20(2) of the Verordnung über den Betrieb von Apotheken 
(Regulation on the operation of pharmacies, ‘the ApoBetrO’), when dispensing 
medicinal products to a patient, the pharmacist must determine, by making 
enquiries, the extent to which the patient may need further information and advice, 
and provide appropriate advice. Viewed objectively, it may be irrational for a 
patient who has been prescribed a medicinal product subject to a prescription to 
dispense with such an offering of advice [Or. 19] if questions remain unanswered 
after advice has been provided by the prescribing doctor. The Chamber takes the 
view that the patient’s decision to obtain a medicinal product subject to a 
prescription from a domestic or foreign mail-order pharmacy instead of a brick-
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and-mortar pharmacy that can provide — objectively required — advice should be 
based on objective reasons and not be influenced by aleatory stimuli. 
[…]