Opinion of the Advocate General — ECLI:EU:C:2024:925
Date: 2024-10-24
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-517/23 – 1 
Case C-517/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
10 August 2023 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
13 July 2023 
Defendant and appellant in the appeal on a point of law: 
Apothekerkammer Nordrhein 
Applicant and respondent in the appeal on a point of law: 
DocMorris NV 
  
Subject matter of the main proceedings 
Interpretation of Directive 2001/83/EC in respect of the extent to which 
advertising of prescription medicinal products from the entire range of products of 
a pharmacy falls within the scope of the directive 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU, in particular 
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), as amended by Directive (EU) 2022/642 of the 
European Parliament and of the Council of 12 April 2022 (‘Directive 2001/83’) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-517/23 
 
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Questions referred for a preliminary ruling 
1. Does advertising for the purchase of prescription medicinal products from 
the entire range of products of a pharmacy fall within the scope of the rules on the 
advertising of medicinal products in Directive 2001/83 (Titles VIII and VIIIa, 
Articles 86 to 100)? 
2. If Question 1 is to be answered in the affirmative: 
Is it consistent with the provisions of Title VIII of Directive 2001/83, in particular 
Article 87(3), if a national rule (here: letter (a) of the first clause of point 2 of the 
second half of the first sentence of Paragraph 7(1) of the HWG) is interpreted as 
prohibiting the advertising of the entire range of prescription medicinal products 
of a mail-order pharmacy established in another Member State using promotional 
gifts in the form of vouchers for a monetary amount or a percentage discount for 
subsequent purchases of other products? 
3. Furthermore, if Question 1 is to be answered in the affirmative: 
Is it consistent with the provisions of Title VIII of Directive 2001/83, in particular 
Article 87(3), if a national rule (here: letter (a) of the first clause of point 2 of the 
second half of the first sentence of Paragraph 7(1) of the HWG) is interpreted as 
permitting the advertising of the entire range of prescription medicinal products of 
a mail-order pharmacy established in another Member State using promotional 
gifts in the form of immediately effective price reductions and payments? 
Provisions of European Union law relied on 
TFEU, in particular Article 34 
Directive 2001/83, in particular Titles VIII and VIIIa (Articles 86 to 100), 
Article 87(3) and Article 88(1)(a) 
Provisions of national law relied on 
Gesetz über die Werbung auf dem Gebiete des Heilwesens (Law on the 
advertising of medicines) (HWG) 
Zivilprozessordnung (Code of Civil Procedure) (ZPO) 
Succinct presentation of the facts and procedure 
1 The applicant is a Dutch mail-order pharmacy which supplies prescription and 
non-prescription medicines by mail order to end customers in Germany. 
2 The defendant is the representative body for pharmacists in the North Rhine area. 
APOTHEKERKAMMER NORDRHEIN 
 
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3 Since 2012 the applicant has advertised using various discount campaigns where, 
upon purchasing prescription medicinal products, customers were offered a 
benefit in the form of a cash discount, a voucher to be used against the purchase of 
another medicine, a hotel voucher or annual membership of a motoring 
association. 
4 The defendant considers that these advertising measures constitute an 
infringement of the system of fixed prices for prescription medicinal products 
under the law on pharmaceuticals and therefore – in so far as is relevant to the 
appeal on a point of law – obtained against the applicant, from 2013 to 2015, the 
five interlocutory injunctions mentioned below, which were each duly enforced. 
5 On 8 May 2013 (ref. 84 O 90/13), on 4 November 2014 (ref. 84 O 208/14) and on 
26 September 2013 (ref. 84 O 220/13), the defendant obtained an interlocutory 
injunction from the Landgericht Köln (Regional Court, Cologne) against 
advertising by the applicant. These three injunctions were each duly enforced. By 
two judgments of 22 March 2017, the Landgericht Köln annulled the interlocutory 
injunctions of 8 May 2013 and of 4 November 2014. 
6 On 5 November 2013, the defendant obtained an interlocutory injunction from the 
Landgericht Köln (ref. 84 O 256/13), which was enforced on 21 January 2014, 
against the following advertising by the applicant: 
‘Send in your prescription now! … Unfortunately we can’t save you a trip to the 
post box but to compensate for the cost of your journey by bus and train, new 
customers will receive 10 euro from us, which will be immediately deducted from 
the invoice amount when the prescription is sent in’, 
with the discount being offered as a reward for orders of prescription medicines 
with an order value of EUR 50 or more. The Landgericht Köln annulled this 
interlocutory injunction by judgment of 22 March 2017. 
7 On 29 September 2015, the defendant obtained an interlocutory injunction from 
the Landgericht Köln (ref. 81 O 82/15), which was enforced on 26 May 2016, 
against the following advertising by the applicant 
‘5 euro voucher for your next prescription order’, 
with that sum to be deducted directly from the invoice amount. The Landgericht 
Köln annulled this interlocutory injunction by final judgment of 21 March 2017. 
8 The reason for each of the abovementioned annulments was the change in 
circumstances in the light of the judgment of the Court of Justice of the European 
Union (‘Court of Justice’) of 19 October 2016, Deutsche Parkinson Vereinigung 
(C-148/15, EU:C:2016:776). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-517/23 
 
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9 High administrative fines were imposed on the applicant in the context of the 
enforcement of some of the interlocutory injunctions at the request of the 
defendant. 
10 The applicant is claiming compensation for damages from the defendant on the 
ground that the interlocutory injunctions were unjustified from the outset. 
11 The Landgericht dismissed the action. On appeal the applicant claimed, in 
essence, that the court should order the defendant to pay the applicant 
compensation for damages of at least EUR 18 476 648.12 plus interest and declare 
that the defendant is liable to pay compensation in respect of any further damage. 
12 By its appeal on a point of law, the defendant maintains its claim that the action 
should be dismissed in its entirety. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 Under Paragraph 945 of the ZPO, the party which obtained an interlocutory 
injunction which was unjustified from the outset is obliged to compensate the 
opponent for damage incurred by him or her as a result of enforcement. 
14 When the German legislation on the advertising of medicines – here: 
Paragraph 7(1) of the HWG – is applied, three of the five advertising measures 
prohibited by the interlocutory injunctions prove to be unlawful. That is the case 
for the advertising measures to which the interlocutory injunctions of 8 May 2013 
(ref. 84 O 90/13), of 26 September 2013 (ref. 84 O 220/13) and of 4 November 
2014 (ref. 84 O 208/14) relate. No claim for compensation for damages under 
Paragraph 945 of the ZPO arises in respect of those three injunctions. 
15 The appeal court rightly held that the system of fixed prices for medicinal 
products may not be applied to the detriment of the applicant because, according 
to the case-law of the Court of Justice, a system of fixed sales prices has a greater 
impact on the applicant – a pharmacy established in a Member State other than the 
Federal Republic of Germany – than on those which are 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, 
which means that there is an infringement of Article 34 TFEU (see judgment of 
the Court of Justice of 19 October 2016, Deutsche Parkinson Vereinigung, 
C-148/15, EU:C:2016:776, paragraph 26 et seq.). 
16 Under the first half of the first sentence of Paragraph 7(1) of the HWG, it is 
unlawful to offer, announce or grant rewards and other promotional gifts (goods 
or services) or to accept these as a healthcare professional unless one of the 
exceptions regulated by law in the second half of the first sentence of 
Paragraph 7(1) of the HWG applies. Under that provision, exceptions to the 
prohibition include small objects of low value and rewards or promotional gifts in 
a specific monetary amount or a monetary amount to be calculated in a specific 
APOTHEKERKAMMER NORDRHEIN 
 
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manner. However, in the case of both exceptions, rewards or other promotional 
gifts for medicinal products remain unlawful if they are granted in breach of the 
rules on pricing which apply inter alia on the basis of the Arzneimittelgesetz (Law 
on medicinal products). 
17 The rewards and vouchers to be assessed in the present case constitute 
promotional gifts within the meaning of the first sentence of Paragraph 7(1) of the 
HWG, but not small objects of low value. Furthermore, they are only to some 
extent rewards or promotional gifts which are granted in a specific monetary 
amount or a monetary amount to be calculated in a specific manner within the 
meaning of the exception in letter (a) of the first clause of point 2 of the second 
half of the first sentence of Paragraph 7(1) of the HWG and are therefore lawful. 
18 The rewards or promotional gifts to which the interlocutory injunctions of 
5 November 2013 (ref. 84 O 256/13) and of 29 September 2015 (ref. 81 O 82/15) 
relate are lawful. 
19 The appeal on a point of law unsuccessfully challenges the appeal court’s 
assessment that those two interlocutory injunctions were unjustified from the 
outset. 
20 Both of these relate to monetary discounts which are lawful under letter (a) of the 
first clause of point 2 of the second half of the first sentence of Paragraph 7(1) of 
the HWG and which directly reduce the invoice amount for the order. They do 
infringe the second clause of point 2 of the second half of the first sentence of 
Paragraph 7(1) of the HWG because they are granted in breach of the rules on 
pricing which apply inter alia on the basis of the Arzneimittelgesetz. They concern 
prescription medicinal products which are subject to the system of fixed prices for 
medicinal products. The grant of a monetary discount which directly reduces the 
invoice amount for the order runs counter to the system of fixed prices for 
medicinal products. The appeal court rightly held, however, that this proviso of 
compliance with the system of fixed prices for medicinal products may not be 
applied to the detriment of the applicant. 
21 The success of the appeal on a point of law depends on the interpretation of EU 
law – here: Directive 2001/83. Questions of EU law requiring clarification arise in 
the case at issue in connection with the application of Paragraph 7 of the HWG. 
22 The rules of the HWG relating to the advertising of medicinal products must be 
interpreted in conformity with EU law having regard to the rules of Directive 
2001/83. Within the scope of that directive, the advertising of medicinal products 
has been completely harmonised (judgment of the Court of Justice of 8 November 
2007, Gintec, C-374/05, EU:C:2007:654, paragraphs 20 to 39). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-517/23 
 
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First question referred for a preliminary ruling 
23 The first question is intended to clarify whether the contested advertising for the 
purchase of prescription medicinal products from the entire range of products of a 
pharmacy falls within the scope of the rules on the advertising of medicinal 
products in Directive 2001/83 (Titles VIII and VIIIa, Articles 86 to 100). 
24 The contested advertising in the present case concerns the purchase of unspecified 
medicinal products from the entire range of products, while the pleas raised by the 
defendant relate to the advertising of prescription medicinal products contained 
therein. 
25 As the Court of Justice first ruled, Title VIII of Directive 2001/83, regarding the 
advertising of medicinal products, is intended to regulate the advertising of certain 
medicinal products (the content of the advertising message and the manner of 
advertising for particular medicinal products), but governs neither advertising of 
online sales services relating to medicinal products nor advertising for the entire 
range of medicinal products subject to a medical prescription offered for sale by 
the pharmacy in question (judgments of the Court of Justice of 1 October 2020, A 
(Advertising and sale of medicinal products online), C-649/18, EU:C:2020:764, 
paragraphs 49 and 50, and of 15 July 2021, DocMorris, C-190/20, 
EU:C:2021:609, paragraphs 20 to 22). 
26 The Court of Justice has now ruled that, notwithstanding what is stated in 
paragraph 50 and in paragraph 20 of the abovementioned judgments, the scope of 
application of provisions of Directive 2001/83 is not limited to advertising of a 
specific medicinal product only (judgment of the Court of Justice of 22 December 
2022, EUROAPTIEKA, C-530/20, EU:C:2022:1014, paragraph 51). 
27 It follows from a literal, contextual and teleological interpretation of Article 86(1) 
of Directive 2001/83 that the concept of ‘advertising of medicinal products’ 
covers any form of door-to-door information, canvassing activity or inducement 
designed to promote the prescription, supply, sale or consumption of unspecified 
medicinal products (judgment of the Court of Justice of 22 December 2022, 
EUROAPTIEKA, C-530/20, EU:C:2022:1014, paragraph 47). 
28 It is possible that advertising for the purchase of prescription medicinal products 
only should be regarded as advertising of sales services, which is not covered by 
Directive 2001/83 according to the case-law of the Court of Justice, and not 
advertising of medicinal products, because in the case of such advertising the 
patient is no longer able or intended to choose the – already prescribed – 
medicinal product, but only a pharmacy. 
Second question referred for a preliminary ruling 
29 In the event that advertising for the purchase of prescription medicinal products 
from the entire range of products of a pharmacy, which is at issue in the present 
APOTHEKERKAMMER NORDRHEIN 
 
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case, falls within the scope of the rules on advertising in Directive 2001/83, the 
second question arises. 
30 By that question, the court wishes to know whether it is consistent with the 
provisions of Title VIII of Directive 2001/83, in particular Article 87(3), if a 
national rule (here: letter (a) of the first clause of point 2 of the second half of the 
first sentence of Paragraph 7(1) of the HWG) is interpreted as prohibiting the 
advertising of the entire range of prescription medicinal products of a mail-order 
pharmacy established in another Member State using promotional gifts in the form 
of vouchers for a monetary amount or a percentage discount for subsequent 
purchases of other products. 
Compatibility with Directive 2001/83 
31 The court takes the view that such an interpretation is consistent with the 
abovementioned rules of the directive. 
32 The Court of Justice has ruled that Article 87(3) and Article 90 of Directive 
2001/83 must be interpreted as not precluding a national provision that prohibits 
the inclusion, in advertising to the general public of medicinal products that are 
neither subject to medical prescription nor reimbursed, of information which 
encourages the purchase of medicinal products by justifying the need for that 
purchase on the basis of the price of those medicinal products, by announcing a 
special sale, or by indicating that those medicinal products are sold together with 
other medicinal products, including at a reduced price, or with other types of 
products (judgment of the Court of Justice of 22 December 2022, 
EUROAPTIEKA, C-530/20, EU:C:2022:1014, paragraph 73). 
33 It held that, in that they prevent the use of advertising material that encourages the 
irrational and excessive use of medicinal products that are neither subject to 
medical prescription nor reimbursed, prohibitions such as those laid down in the 
provision at issue in the main proceedings meet the essential aim of safeguarding 
public health (judgment of the Court of Justice of 22 December 2022, 
EUROAPTIEKA, C-530/20, EU:C:2022:1014, paragraph 69). 
34 The Court of Justice noted in this connection that those prohibitions do not cover 
the dissemination of merely informative statements, which lack any promotional 
intent, about those medicinal products but rather they cover the dissemination of 
content that seeks to encourage the purchase of those medicinal products, whether 
by reference to their price, to a special sale or a sale bundled with other medicinal 
products, including at a reduced price, or with the sale of other products 
(judgment of the Court of Justice of 22 December 2022, EUROAPTIEKA, 
C-530/20, EU:C:2022:1014, paragraph 70). 
35 These considerations would appear to apply a fortiori to advertising to the general 
public of prescription medicinal products and also, in principle, to advertising to 
the general public by a mail-order pharmacy established in another Member State. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-517/23 
 
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Compatibility with the free movement of goods under Article 34 TFEU 
36 In the view of the court, the interpretation described in the question referred is 
also not contrary to the free movement of goods under Article 34 TFEU. 
37 National provisions restricting or prohibiting certain selling arrangements are not 
such as to hinder, directly or indirectly, actually or potentially, trade between 
Member States on the twofold condition, first, that those provisions apply to all 
relevant traders operating within the national territory and, secondly, that they 
affect in the same manner, in law and in fact, the marketing of domestic products 
and that of products from other Member States. The application of such rules to 
the sale of products from another Member State meeting the requirements laid 
down by that State is not by nature such as to prevent their access to the market or 
to impede access any more than it impedes the access of domestic products. The 
Court has found provisions restricting, inter alia, the opportunities for an 
undertaking to advertise to be ‘provisions governing selling arrangements’ 
(judgment of the Court of Justice of 15 July 2021, DocMorris, C-190/20, 
EU:C:2021:609, paragraph 35 et seq. and the case-law cited). 
38 The national rule described in the question referred is a provision which applies 
without distinction to all pharmacies selling medicinal products in Germany, 
whether they are established in Germany or in another Member State, such that 
they affect in the same manner, in law and in fact, the marketing of domestic 
products and products from other Member States. 
39 In the view of the court, this assessment is not contrary to the judgment of the 
Court of Justice of 19 October 2016 (Deutsche Parkinson Vereinigung, C-148/15, 
EU:C:2016:776). 
40 The Court of Justice stated in the ‘DocMorris’ judgment, which was delivered in 
response to a reference from the court, that the prohibition of promotional 
competitions at issue in that case, which was likewise based on the first sentence 
of Paragraph 7(1) of the HWG did not – unlike in the ‘Deutsche Parkinson 
Vereinigung’ case – constitute the ‘total prohibition on price competition’. A 
prohibition of competitions designed to promote the sale of medicinal products 
has far less significant consequences for mail-order pharmacies than the total 
prohibition on price competition (judgment of the Court of Justice of 15 July 
2021, DocMorris, C-190/20, EU:C:2021:609, paragraph 44). 
41 The prohibition at issue in the present case on advertising using vouchers for a 
monetary amount or a percentage discount for subsequent purchases of other 
products would likewise not appear to constitute the total prohibition on price 
competition. That would appear to mean only the prohibition of advertising using 
immediately effective price reductions. 
APOTHEKERKAMMER NORDRHEIN 
 
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Third question referred for a preliminary ruling 
42 By the third question, the court wishes to clarify whether it is consistent with the 
provisions of Title VIII of Directive 2001/83, in particular Article 87(3), if a 
national rule (here: letter (a) of the first clause of point 2 of the second half of the 
first sentence of Paragraph 7(1) of the HWG) is interpreted as permitting the 
advertising of the entire range of prescription medicinal products of a mail-order 
pharmacy established in another Member State using promotional gifts in the form 
of immediately effective price reductions and payments. 
43 In the view of the court, a prohibition of the advertising of prescription medicinal 
products using monetary rewards cannot be considered to be justified on the basis 
of Article 88(1)(a) of Directive 2001/83, which – in accordance with recital 44 of 
the directive – obliges Member States to proscribe the advertising of prescription 
medicinal products to the general public. 
44 Even if advertising to the general public which – as in the case of the contested 
advertising measures in this case – is generally intended to promote the marketing 
of prescription medicinal products through the grant of monetary benefits 
constitutes the advertising of medicinal products to the general public within the 
meaning of Article 86(1) of Directive 2001/83, it does not, in the view of the 
court, constitute generally prohibited advertising to the general public of 
prescription medicinal products for the purposes of Article 88(1)(a) of Directive 
2001/83. 
45 Article 88(1) of Directive 2001/83 is intended, with a view to safeguarding health, 
to prevent advertising to the general public creating inducements for patients to 
ask their doctor to prescribe them a prescription medicinal product. The purpose 
of advertising prices for prescription medicinal products, on the other hand, is so 
that patients can choose a certain pharmacy when purchasing a medicinal product 
already prescribed to them. Prices advertising in the marketing of prescription 
medicinal products is an aspect of competition and is not covered by Article 88(1) 
of Directive 2001/83.