Opinion of the Advocate General — ECLI:EU:C:2020:134
Date: 2020-02-27
Language of the case: French
Subject matter: Right of establishment;Free movement of goods;Consumer protection;Approximation of laws;Quantitative restrictions;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-649/18 — 1 
Case C-649/18 
Request for a preliminary ruling 
Date lodged:  
15 October 2018 
Referring court:  
Cour d’appel de Paris (France) 
Date of the decision to refer:  
28 September 2018 
Appellant: 
A 
Respondents: 
Daniel B 
UD 
AFP 
B 
L 
      
[…] 
[…] [administrative information] 
COUR D’APPEL DE PARIS (Court of Appeal, Paris) (France) 
[…] 
JUDGMENT OF 28 SEPTEMBER 2018 
[…] 
[…] [administrative information] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2018 — CASE C-649/18 
 
2  
APPELLANT 
S BV, a company incorporated under the laws of the Netherlands, 
as represented by its legal representatives 
[…] [omission made by the referring court] 
NETHERLANDS 
[…] 
[…] [contact details of the lawyer ad litem] 
RESPONDENTS 
Mr Daniel B, trader, owner of a pharmacy, 
operating under the name […] [omission made by the referring court] 
as represented by his legal representatives 
68000 COLMAR 
[…] 
[…] [contact details of the company and its lawyer ad litem] 
ASSOCIATION UNION DES GROUPEMENTS DE  […] [omission made by 
the referring court] 
as represented by its legal representatives 
[…] [omission made by the referring court] 
44000 NANTES 
[…] […][contact details of the company and its lawyer ad litem] [Or. 2] 
ASSOCIATION FRANÇAISE DES PHARMACIES […] [omission made by 
the referring court] 
as represented by its legal representatives 
[…] [omission made by the referring court] 
59650 VILLENEUVE D’ASCQ 
[…] 
A 
 
3 
[…] [contact details of the company and its lawyer ad litem] 
SARL PHARMACIE DU B […] [omission made by the referring court] 
as represented by its legal representatives 
[…] [omission made by the referring court] 
59650 VILLENEUVE D’ASCQ 
[…] 
[…] [contact details of the company and its lawyer ad litem] 
SELARL PHARMACIE DE L […] [omission made by the referring court] 
as represented by its legal representatives 
[…] [omission made by the referring court] 
33320 EYSINES 
[…] 
[…] [contact details of the company and its lawyer ad litem] 
[…] 
[…] [composition of the referring court and procedural matters] 
JUDGMENT: 
[…] [reference to procedure] [Or. 3] 
1 S BV, a company incorporated under the laws of the Netherlands (company A), 
established in the Netherlands as a pharmaceutical business, also conducts its 
activity through the online sale of medicinal products via several websites, of 
which the website ‘www.s […].fr’ is specifically directed at French consumers. 
It has promoted its online business in France through cross-media advertising such 
as leaflets (‘advertising flyers’) included in packages sent by other traders 
engaged in distance selling (Z Sho and La R) (so-called ‘piggyback marketing’), 
and also by sending out advertisements by post and by advertising on its website. 
In particular, it has also purchased a paid search advert for the key words 
‘lasante.net’ (‘google adwords’), and has conducted a large-scale advertising 
campaign by highlighting discounts and allowing internet users to order large 
quantities of medicinal products. 
2 On 13 June 2016, alleging acts of unfair competition resulting from a failure to 
comply with the applicable legislation, the associations ‘UNION DES 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2018 — CASE C-649/18 
 
4  
GROUPEMENTS DE […]’(UD) and ‘ASSOCIATION FRANÇAISE DES 
PHARMACIES […]’ (AFP) and also Mr Daniel B (operating in Colmar under the 
name ‘PHARMACIE DU […]’), the SARL PHARMACIE DU B (company B) 
(operating in Villeneuve d’Ascq and also managing the electronic commerce 
website for medicinal products la […].net) and the (company) PHARMACIE DE 
L […] (company L) (operating in E […] Gironde) conducting pharmaceutical 
business online, brought proceedings against company A before the Tribunal de 
commerce de Paris (Paris commercial court) seeking compensation for the 
damage resulting from consecutive acts of unfair competition which led to an 
unfair advantage (according to the respondents) resulting from a failure to comply 
with the law applicable to the online sale of medicinal products in France, 
amongst other various measures concerning the closure of the site and cessation of 
advertising. 
3 Company A opposed the claims, contending, inter alia, that the alleged 
infringements are unfounded, arguing that the French law relied on by the 
respondents is not applicable to it and essentially submitting that, duly established 
to operate as a pharmacy in the Netherlands, it sells its products to French 
residents via electronic commerce.  
4 By judgment of 11 July 2017, the Tribunal de commerce de Paris (Paris 
commercial court) held that the creation of the French website by company A was 
governed by the laws of its country of origin, but found that, by distributing more 
than three million copies of advertising leaflets outside of its pharmacy, company 
A solicited clients in France by methods unworthy of the pharmaceutical 
profession, in contravention of Articles R 4235-22 and R 4235-64 of the (French) 
Code de la santé publique (French Public Health Code) (the first-instance court 
had found that those legislative provisions are also applicable to [EU] traders 
operating in France through the online sale of medicinal products) and that the 
failure to comply with those legislative provisions created an imbalance in 
competition which conferred on the Dutch company an economic advantage over 
other operators in the French internal market, thereby giving rise to unfair 
competition. 
5 On 21 September 2017, company A lodged an appeal, submitting in essence that 
Articles R 4235-22 and R 4235-64 of the (French) Public Health Code do not 
apply to it, as they constitute unjustified barriers to the principle of the application 
of the rules of the country of origin laid down by European Directives 2001/83/EC 
(as amended) of 6 November 2001 and 2000/31/EC of 8 June 2000, as well as to 
Article 34 TFEU. 
6 The respondents UD, AFP and Mr B, as well as companies B and L, request (i) 
that the judgment be upheld in so far as it applies French law concerning 
advertising for the sale of medicinal products and in so far as it categorised the 
large-scale advertising campaign engaged in by company A as unfair competition 
because it is contrary to the dignity of the profession and promotes misuse of 
medicinal products, but (ii) that the judgment be varied as to the remainder so as 
A 
 
5 
to ensure the application of the provisions of the (French) Public Health Code and 
of the Decree of 28 November 2016 of the Minister for Social Affairs and Health, 
in relation to good practices in the distribution of medicinal products, to the 
actions of company A in France, including its use of paid search advertising 
through ‘google adwords’. [Or. 4] 
IN THIS REGARD, 
7 It is not disputed that company A is lawfully authorised to sell medicinal products 
to the public in the Netherlands, where it is duly established, or via its website 
‘www.s [...].fr’, and that the only medicinal products which it provides to French 
consumers are those which are authorised to be placed on the market and which 
do not require a medical prescription to be issued prior to purchase;  
8 It follows that the parties disagree mainly over the application of the rules relating 
to advertising: 
- the Dutch company A claims that it is subject only to the law of the 
Netherlands, which, according to it, allows it to use various forms of 
advertising in order to promote its website among the French public, and it 
submits that the Member State of destination of the service cannot impose its 
own laws on it or subject it to its own control bodies, arguing that, in its 
view, Articles R 4235-22 and R 4235-64 of the (French) Public Health Code 
must be disregarded because they constitute unjustified obstacles to free 
movement […] and, not being justified and proportionate to the need to 
protect public health, they are contrary to the provisions of both Article 85c 
of European Directive [2001/83/EC] (as amended) of 6 November 2001 and 
the internal-market clause of Article 3 of Directive [2000/31/EC] of 8 June 
2000 on electronic commerce, as well as to Article 34 TFEU. 
- whereas the French respondents argue that the restrictions in the 
(French) Public Health Code, in relation to advertising practices for the sale 
of medicinal products online, relating notably to the dignity and honour of 
the profession, are justified and proportionate to the objective pursued, 
which is to protect public health; 
9 It therefore appears necessary, as suggested by company A, to make a request for 
a preliminary ruling to the CJEU in order to ascertain whether the application of 
the abovementioned provisions of Articles R 4235-22 and R 4235-64 of the 
(French) Public Health Code and the restrictions imposed by the Decree of 
28 November 2016 of the Minister for Social Affairs and Health in relation to 
good practices in the distribution of medicinal products are compatible with the 
provisions of European Directive [2001/83/EC] (as amended) of 6 November 
2001 on the Community code relating to medicinal products for human use 
and European Directive [2000/31/EC] of 8 June 2000 on certain legal aspects 
of information society services for electronic commerce, as well as with 
Article 34 TFEU; 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2018 — CASE C-649/18 
 
6  
On those grounds, before giving final judgment, [the Cour d’appel de Paris] 
10 Orders that the [question] be transmitted to the Registry at the Court of Justice of 
the European Union for a preliminary ruling in order to ascertain whether EU law, 
in particular 
- Article 34 TFEU, 
- Article 85c of European 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 (as amended), 
- the internal-market clause in Article 3 of Directive 2000/31/EC of the 
European Parliament and of the Council of 8 June 2000 on certain legal 
aspects of information society services for electronic commerce, 
allows a Member State of the European Union to impose, within its territory, 
specific rules on pharmacists who are nationals of another EU Member State 
operating in its territory concerning: 
- the prohibition of soliciting clients through procedures and methods which 
are regarded as being contrary to the dignity of the profession, pursuant to 
the present version of Article R 4235-22 of the [Or. 5] French Public Health 
Code; 
- the prohibition of inciting patients to misuse medicinal products, pursuant 
to the present version of Article R 4235-64 of the French Public Health 
Code; 
- the obligation to observe good practices, as defined by the public 
authorities of the Member State, in the distribution of medicinal products, 
which also requires that a health questionnaire be included when medicinal 
products are ordered online and which prohibits the use of paid referencing 
pursuant to the present version of the Decree of 28 November 2016 of the 
(French) Minister for Social Affairs and Health. 
11 The proceedings are stayed pending the reply of the European Court of Justice. 
12 The decision as to costs is reserved. 
Registrar        President