Landgericht Berlin; 2019-04-01; Wettbewerbsverband; Anbieter von medizinischen Behandlungen mittels Online-Konsultation ; 101 O 62/17
Decision by national courts in the field of European Union law — ECLI:DE:LGBE:2019:0401.101O62.17.00
Date: 2019-04-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0401(51)_ENG_SUMJURE
JURE summary
JURE summary
An association domiciled in Germany (hereinafter ‘the plaintiff’), whose aim is to protect the professional interests of its members and to monitor that the principles of fair competition are observed, filed an action against a website operator domiciled in the United Kingdom (hereinafter ‘defendant 1’) and a senior pharmacist (hereinafter ‘defendant 2’).
Defendant 1 offered deliveries of prescription medication in Germany following an online consultation with physicians in the form of a questionnaire. Based on these consultations, defendant 1 sent any medication prescribed. The plaintiff claimed that the defendant’s advertisement of remote diagnosis was in breach of Article 9 of the HWG (1). In addition, the defendant’s advertisement to ship prescription medication violated Article 10 of the HWG.
Defendant 1 challenged the action, stating that the German courts were not competent. It further claimed that its services offered and provided in the United Kingdom were legal there, that it provided these services without making any advertisement and that defendant 2 bore no liability whatsoever as he did not participate in the daily business operations or strategic decisions.
The seised court, the Landgericht Berlin (hereinafter ‘the Court of First Instance’), held international jurisdiction under Article 7(2) of the Brussels I Regulation (recast) (2). For breaches of competition law that occur online, the place of the harmful event is the place where the online presence is intended to have its impact. In this case, the main indicator was the use of the German language. In addition, the contact telephone number was a German telephone number. It was clear beyond any doubt that the websites of defendant 1 were targeted at the inhabitants of Germany, in particular Berlin.
Under Article 6(1) of the Rome II Regulation, the applicable substantive law was the German UWG (3). Due to the advertising targeted at consumers living in Germany, the actions of defendant 1 were liable to damage the legitimate interests of its competitors, the members of the plaintiff, in Germany.
Both Article 9 of the HWG and Article 10 of the HWG had been breached. The Court of First Instance further established that defendant 2, who worked as a responsible senior pharmacist with the company of defendant 1, could be sued.
The Court of First Instance ordered the defendants, under the threat of a an administrative fine or detention, to cease and desist from advertising medical advice in the form of a remote (online) diagnosis on the German market for commercial purposes and/or advertising prescription medication outside specialised circles.
(1) Heilmittelwerbegesetz (Health Services and Products Advertising Act).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Gesetz gegen den unlauteren Wettbewerb (Act against Unfair Competition).
(4) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).