LG Stendal; 2019-03-14; 31 O 43/18
Decision by national courts in the field of European Union law — ECLI:DE:LGSTEND:2019:0314.31O43.18.00
Date: 2019-03-14
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0314(51)_ENG_SUMJURE
JURE summary
JURE summary
An independent pharmacist that operates a pharmacy in Germany (hereinafter ‘the plaintiff’) requests an injunction against a provider of a mail-order pharmacy located in the Netherlands (hereinafter ‘the defendant’) for anticompetitive activities.
German end users can order pharmaceutical products from the defendant at the domain “www....BB....de”. The defendant guarantees, when dispensing the prescribed pharmaceutical products, the German customers prescription bonuses which are valid when submitting either prescriptions paid by public health insurance or private prescriptions.
The plaintiff carried out test sales through private patients and came to the following conclusions. The test purchaser received the ordered prescribed pharmaceutical products from the defendant with a benefits summary, a bill and a copy of the prescription to be presented to the sickness insurance institute. On the copy of the prescription to be presented to the sickness insurance institute, the price of the pharmaceutical product is listed as EUR 12.32. Firstly, the price of the pharmaceutical product is likewise listed as EUR 12.32 on the bill. Next, a netting benefit of EUR 2.50 and a voucher discount of EUR 9.82 are accounted for. The payment amount of the bill results in EUR 0.00. The prescription bonus of EUR 2.50 and the voucher of EUR 9.82 are listed on the benefits summary.
The plaintiff claims that insurance fraud was instigated or aided by the issuance of the incorrect copy of the receipt.
The defendant contends this with, inter alia, the judgment of the Court of Justice of the European Union (hereinafter ‘the CJEU’) (case C-148/15 (1)), which ruled that the extending the price fixing to mail-order pharmacies intervenes the European free movement of goods. According to the defendant, the prescription bonus guaranteed by the defendant is used to compensate the time and effort the customer must accept when purchasing via a mail-order pharmacy outside of Germany, in accordance with the statements of the CJEU. In this way, the competitive disadvantage of the defendant is compensated for.
According to the appointed court having international and local jurisdiction, the Landgericht Stendal (hereinafter ‘the Court of First Instance’), a privately insured patient is committing fraud at the expense of the health insurance by presenting a copy of the prescription without at the same time providing evidence of the netted benefits and the amount actually paid. The insurer is obliged to reimburse expenses and other agreed services that are actually incurred in relation to medicinal treatment. The price discounts (e.g. prescription bonuses) reduce the insurer’s obligation to reimburse and the insurer must have knowledge of these discounts.
Accessorily to the fraud by the patient, the defendant would also be liable to prosecution for instigation and aiding. However, in the present case, these are merely test sales and the health insurer did not suffer pecuniary loss. The objective constituent elements of the fraud were therefore not realised.
The defendant may not refer to the mentioned judgement of the CJEU. Although the German prohibition on the sale of medicinal products by mail order more greatly affects pharmacies outside of Germany than pharmacies in Germany and the foreign pharmacies may provide discounts and bonuses, this is not the case when presenting the defendant’s disputed copies of the prescription. They discernibly provide an incentive for obtaining benefits at the expense of third parties – the health insurers.
The Court of First Instance ordered the defendant to cease issuing privately insured end users in Germany with documents about pharmaceutical product costs which were not incurred or for which a different amount was incurred.
(1) Judgement of the Court of 19 October 2016, Deutsche Parkinson Vereinigung e.V. v Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V., C-148/15, ECLI:EU:C:2016:776.