OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 27 February 2020 (1)
Case C‑649/18
A
v
Daniel B,
UD,
AFP,
B,
L
(Request for a preliminary ruling from the cour d’appel de Paris (Court of Appeal, Paris, France))
(Reference for a preliminary ruling – Medicinal products for human use not subject to compulsory medical prescription – Online sales – Advertising for a pharmacy’s website – Limitations – Obligation to require a patient to complete a health questionnaire prior to validation of his or her first order on a pharmacy’s website – Free movement of goods – Article 34 TFEU – Selling arrangements – Obstacles – Article 36 TFEU – Justification – Protection of the dignity of the profession of pharmacist – Prevention of the abusive consumption of medicinal products – Protection of public health – Directive 2000/31/EC – Electronic commerce – Article 2(a) – Information society service – Article 2(h) – Coordinated field – Article 3 – Country-of-origin principle – Derogations – Justification – Protection of public health – Information and notification obligation – Directive 2001/83/EC – Community code relating to medicinal products for human use – Article 85c(2) – Option for Member States to impose conditions, justified on grounds of public health protection, for the retail supply within their territory of medicinal products sold online)
I.      Introduction
1.        This request for a preliminary ruling from the cour d’appel de Paris (Court of Appeal, Paris, France) concerns the interpretation of Article 3 of Directive 2000/31/EC on electronic commerce, (2) Article 85c of Directive 2001/83/EC on the Community code relating to medicinal products for human use (3) and Articles 34 and 36 TFEU.
2.        The request has been made in the context of proceedings between, on the one hand, A, a company incorporated under Netherlands law which operates a dispensing pharmacy established in the Netherlands and a website specifically targeting French customers and, on the other, several operators of dispensing pharmacies and associations representing the professional interests of pharmacists established in France. The website in question has a sales portal offering medicinal products not subject to compulsory medical prescription as well as quasi-pharmaceutical products. The abovementioned operators and associations complain that A has engaged in acts of unfair competition by promoting that website to French customers by means of a wide-ranging and multifaceted advertising campaign. A is also alleged to have failed to fulfil the obligation, provided for by French legislation, to require each patient to complete a health questionnaire prior to validation of his or her first order.
3.        In the present case, the Court is asked to clarify to what extent a Member State is entitled to regulate, first, advertising by pharmacists established in other Member States of their online sales services relating to non-prescription medicinal products and, secondly, the process of ordering such medicinal products online.
II.    The legal framework
A.      EU law
1.      Directive 2000/31
4.        Article 1(1) and (2) of Directive 2000/31 reads as follows:
‘1.      This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.
2.      This Directive approximates, to the extent necessary for the achievement of the objective set out in paragraph 1, certain national provisions on information society services relating to the internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States.’
5.        Article 2(a) of Directive 2000/31 defines the concept of ‘information society services’ by reference to Article 1(2) of Directive 98/34/EC, (4) as amended by Directive 98/48/EC. (5) The latter provision covers ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’. Article 1(1)(b) of Directive (EU) 2015/1535, (6) which replaced Directive 98/34, reproduces that same definition. In accordance with the second paragraph of Article 10 of Directive 2015/1535, ‘references to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV’.
6.        Article 2(h) of Directive 2000/31 defines the concept of ‘coordinated field’ as ‘requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them’. That provision states as follows:
‘(i)      The coordinated field concerns requirements with which the service provider has to comply in respect of:
–        the taking-up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,
–        the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider.
(ii)      The coordinated field does not cover requirements such as:
–        requirements applicable to goods as such,
–        requirements applicable to the delivery of goods,
–        requirements applicable to services not provided by electronic means.’
7.        Article 3 of Directive 2000/31, entitled ‘Internal market’, provides:
‘1.      Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.
2.      Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
3.      Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex.
4.      Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:
(a)      the measures shall be:
(i)      necessary for one of the following reasons:
–        public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons,
–        the protection of public health,
–        public security, including the safeguarding of national security and defence,
–        the protection of consumers, including investors;
(ii)      taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;
(iii)      proportionate to those objectives;
(b)      before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:
–        asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,
–        notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.
…’
8.        Article 8(1) of that directive provides that ‘Member States shall ensure that the use of commercial communications which are part of, or constitute, an information society service provided by a member of a regulated profession is permitted subject to compliance with the professional rules regarding, in particular, the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of the profession’.
2.      Directive 2001/83
9.        Under Article 85c(1) and (2) of Directive 2001/83:
‘1.      Without prejudice to national legislation prohibiting the offer for sale at a distance of prescription medicinal products to the public by means of information society services, Member States shall ensure that medicinal products are offered for sale at a distance to the public by means of information society services as defined in Directive [98/34] under the following conditions:
(a)      the natural or legal person offering the medicinal products is authorised or entitled to supply medicinal products to the public, also at a distance, in accordance with national legislation of the Member State in which that person is established;
(b)      the person referred to in point (a) has notified the Member State in which that person is established of at least the following information:
…
(c)      the medicinal products comply with the national legislation of the Member State of destination in accordance with Article 6(1);
(d)      without prejudice to the information requirements set out in Directive [2000/31], the website offering the medicinal products contains at least:
…
2.      Member States may impose conditions, justified on grounds of public health protection, for the retail supply on their territory of medicinal products for sale at a distance to the public by means of information society services.’
10.      Article 86(1) of Directive 2001/83, which opens Title VIII thereof, entitled ‘Advertising’, reads as follows:
‘For the purposes of this Title, “advertising of medicinal products” shall include any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products; it shall include in particular:
–        the advertising of medicinal products to the general public,
…’
B.      French law
1.      The Public Health Code
11.      In accordance with Article R. 4235‑22 of the Public Health Code, ‘pharmacists are prohibited from soliciting clients through procedures and methods contrary to the dignity of the profession’.
12.      Article R. 4235‑64 of that code provides that ‘a pharmacist shall not, by any process or means whatsoever, induce patients to engage in abusive consumption of medicinal products’.
2.      The Decree of 28 November 2016 on best practice in the dispensing of medicinal products
13.      It is apparent from the case file submitted to the Court that the Decree of 28 November 2016 of the Minister for Social Affairs and Health on best practice in the dispensing of medicinal products in dispensing pharmacies, mutual pharmacies and emergency mining pharmacies referred to in Article L. 5121‑5 of the Public Health Code (JORF of 1 December 2016, text no 25; ‘the Decree on best practice in the dispensing of medicinal products’) contains an annex, Section 7 of which, entitled ‘Supplementary rules applicable to the electronic commerce of medicinal products’, provides in its point 7.1, entitled ‘Pharmaceutical advice’:
‘An electronic commerce website for medicinal products shall be designed in such a way that no medicinal product can be dispensed without an interactive exchange being possible between the patient and the pharmacist of the pharmacy concerned before the order is validated. An automated response to a question asked by the patient is therefore not sufficient to ensure information and advice appropriate to the patient’s particular case.
Certain personal data concerning the patient are necessary in order for the pharmacist to ensure that the order is appropriate to the patient’s state of health and for him or her to detect possible contra-indications. Thus, prior to validating the first order, the pharmacist must obtain via an online questionnaire information on the patient’s age, weight, height, sex, current treatments, history of allergic reaction, contra-indications and, where appropriate, pregnancy or breastfeeding. The patient must attest to the veracity of that information.
The questionnaire shall be completed at the time of the first order, during the process of validating the order. If the questionnaire has not been completed and sent, no medicinal product may be dispensed. The pharmacist must then validate the questionnaire, confirming that he or she has acquainted himself or herself with the information provided by the patient, before validating the order.
An opportunity to update the questionnaire [responses] shall be provided with each order.
…’
3.      The Decree of 28 November 2016 on the technical rules applicable to websites for the electronic commerce in medicinal products
14.      It is apparent from the case file submitted to the Court that the Decree of 28 November 2016 of the Minister for Social Affairs and Health on the technical rules applicable to websites for the electronic commerce in medicinal products provided for in Article L. 5125‑39 of the Public Health Code (JORF of 1 December 2016, text no 26; ‘the Decree on technical rules’) contains an annex, Section 1 of which, entitled ‘Functional aspects of websites for the electronic commerce in medicinal products’, provides that ‘paid referencing on search engines or price comparison websites shall be prohibited’.
III. The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
15.      A, a company incorporated under the law of the Netherlands, is registered in the Netherlands to carry on the business of operating a dispensing pharmacy. That company also sells medicinal products online and quasi-pharmaceutical products through several websites, one of which is specifically directed at French consumers. (7) The medicinal products marketed via that site benefit, in France, from a marketing authorisation and are not subject to compulsory medical prescription.
16.      A conducted an advertising campaign for the products thus offered for sale to French consumers. That campaign included the insertion of advertising leaflets in packages sent by other traders engaged in distance selling (so-called ‘piggyback marketing’), the sending of advertisements by post, publication on the abovementioned website of promotional offers consisting in a discount on the total price of an order once a certain amount was exceeded, and the purchase of paid search engine referencing for the key words ‘lasante.net’ via ‘Google Adwords’.
17.      Daniel B, UD, AFP, B and L, operators of dispensing pharmacies or associations representing the professional interests of pharmacists (‘Daniel B and Others’), brought an action against A before the tribunal de commerce de Paris (Commercial Court, Paris, France). Daniel B and Others sought, in particular, compensation for the damage which they consider that they have suffered as a result of the unfair competition in which A allegedly engaged by unduly obtaining an advantage from failing to comply with the rules of French law on the online advertising and sale of medicinal products.
18.      A takes the view, for its part, that those rules do not apply to it since it is duly established in the Netherlands to operate as a dispensing pharmacy and sells its products to French consumers via electronic commerce.
19.      By decision of 11 July 2017, the tribunal de commerce de Paris (Commercial Court, Paris) ruled that the creation of A’s French website was governed by Netherlands law. However, according to that court, Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code are applicable to companies established in other Member States which sell medicinal products via the internet to French patients. By distributing more than three million advertising leaflets outside of its pharmacy, A had solicited French clients by methods unworthy of the profession of pharmacist and in breach of those provisions. The tribunal de commerce de Paris (Commercial Court, Paris) concluded that the failure to comply with those provisions, which conferred on A an economic advantage over other market operators, amounted to unfair competition.
20.      A appealed against that decision to the cour d’appel de Paris (Court of Appeal, Paris), arguing that Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code do not apply to it. Those provisions, it argued, constitute barriers to the principle of the application of the rules of the country of origin laid down in Article 3 of Directive 2000/31, Article 85c of Directive 2001/83 and Article 34 TFEU. Such barriers, in its view, are not justified by the protection of public health.
21.      Before the cour d’appel de Paris (Court of Appeal, Paris), Daniel B and Others sought confirmation of the decision of the tribunal de commerce de Paris (Commercial Court, Paris) in so far as it applied French law to the advertising of medicinal products and in so far as it classified as unfair competition the mass advertising carried out by A, on the ground that it was contrary to the dignity of the profession of pharmacist and that its content promoted the abusive consumption of medicinal products. Daniel B and Others seek to have that decision varied as to the remainder, arguing that the Public Health Code and the Decree on best practice in the dispensing of medicinal products also govern the use of paid referencing by A. Daniel B and Others claim that the restrictions on advertising medicinal products online resulting from the Public Health Code are justified by the objective of protecting the dignity and honour of the profession of pharmacist. Those restrictions, they submit, are proportionate to the pursuit of that objective, which is itself linked to the protection of public health.
22.      In those circumstances, the cour d’appel de Paris (Court of Appeal, Paris) decided, by decision of 28 September 2018, received at the Court on 15 October 2018, to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘[Does] EU law, in particular:
–        Article 34 TFEU;
–        Article 85c of … Directive [2001/83], [and]
–        the internal-market clause in Article 3 of Directive [2000/31]
[allow] 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 French Public Health Code;
–        the prohibition of inciting patients to engage in abusive consumption of 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[?]’
23.      Written observations were submitted by A, Daniel B and Others, the French, Greek, Spanish and Netherlands Governments and by the European Commission. Those parties and interested parties, with the exception of the Netherlands Government, were represented at the hearing, which was held on 3 October 2019.
IV.    Analysis
A.      Preliminary observations
24.      While the conditions for access to the profession of pharmacist are harmonised at EU level, (8) the conditions governing the exercise of that profession fall within the competence of the Member States. The legislation adopted in that regard varies from one Member State to another, both in terms of its intensity and its detailed rules. (9) Where a pharmacist pursues his or her activities on a cross-border basis by selling medicinal products on the internet, (10) the question arises as to whether he or she must comply with the requirements in force in the Member State in which he or she is established or with those laid down by the Member State of destination.
25.      In that regard, Article 85c(1) of Directive 2001/83 requires each Member State to permit the offer of non-prescription medicinal products by means of online sales services supplied by a service provider established in another Member State, provided that the conditions laid down in that provision are fulfilled. (11) In particular, the provider must be entitled under the legislation of the Member State in which he or she is established to supply medicinal products to the public at a distance. Medicinal products offered for sale at a distance must have a marketing authorisation in the Member State of destination. Where those conditions are fulfilled, can the latter Member State nevertheless regulate, for the benefit of patients located within its territory, the detailed rules for engaging in online sales activities relating to medicinal products? In particular, to what extent is this precluded by the ‘country of origin’ principle resulting from Article 3 of Directive 2000/31 and the fundamental freedoms guaranteed by the Treaty?
26.      Those are the general issues raised by the present case. More specifically, this case concerns the conformity with EU law of a Member State’s national legislative or regulatory provisions which, first, limit the possibilities of engaging in advertising aimed at directing patients in that Member State towards a pharmacy’s website in order for them to buy medicinal and quasi-pharmaceutical products from it and, secondly, regulate the process of ordering medicinal products online. Those provisions have been applied, in the present case, to a pharmacy established in the Netherlands which sought to promote its online sales activities to French consumers by means of a website specifically catering for them. The medicinal products offered for sale on that site were authorised in France and could be supplied there without a prescription.
27.      It is possible to arrange into three categories the national provisions the compatibility of which with EU law the Court is being requested to examine.
28.      The first includes provisions prohibiting, in certain circumstances, the advertising on physical media of online sales services relating to medicinal products provided by a pharmacy. In that regard, the tribunal de commerce de Paris (Commercial Court, Paris) censured A for having distributed, on what that court described as a ‘massive’ scale, advertising leaflets and thus having engaged in advertising contrary to the dignity of the profession of pharmacist in breach of Article R. 4235‑22 of the Public Health Code. Moreover, that court criticised A for offering promotions taking the form, as is clear from the documents before the Court, of price reductions for the entire online order for medicinal and quasi-pharmaceutical products where the amount of the order exceeds certain thresholds. Those promotions constituted, in the opinion of that court, an inducement to misuse of medicinal products within the meaning of Article R. 4235‑64 of the Public Health Code. The Court is invited to determine whether the interpretation and application of those legislative provisions by the tribunal de commerce de Paris (Commercial Court, Paris) are compatible with EU law (section C).
29.      The second category of provisions covers those which restrict internet advertising for the same services. In this regard, I would point out that the tribunal de commerce de Paris (Commercial Court, Paris) ruled that the promotions linked to the amount of the order were also unlawful in that they were offered on A’s website. By contrast, that court did not criticise the purchase by the latter of referencing services from ‘Google Adwords’. (12) Daniel B and Others request that the decision at first instance be varied in this respect. The Court will therefore also be required to determine whether the promotions displayed on A’s website and the prohibition of paid referencing, provided for by the Decree on technical rules, (13) are compliant with EU law (section D).
30.      The third category concerns national rules governing the online sales process for non-prescription medicinal products. In this regard, the referring court mentions an obligation laid down by the Decree on best practice in the dispensing of medicinal products, to which all pharmacies offering medicinal products for retail sale on French territory via their website are subject, to have patients complete a medical questionnaire prior to validation of their first order. The answer to the question referred therefore also involves an assessment of whether EU law precludes such an obligation (section E).
31.      For each of the categories of national rules thus described, it will be necessary, first, to identify the provisions of EU law – namely those of Directive 2000/31, Directive 2001/83 or the FEU Treaty – in the light of which the compatibility of those rules falls to be assessed and, secondly, to carry out that assessment.
32.      Before addressing the substance of the question referred for a preliminary ruling, it is necessary to reject the objection raised by the French Government to the admissibility of the question referred for a preliminary ruling (section B).
B.      Admissibility
33.      The French Government pleads the inadmissibility of the question referred in so far as it concerns the interpretation of the provisions of Directive 2000/31. The French Government argues that the provisions of a directive cannot be relied on by a private individual against another private individual in the context of a dispute of a horizontal nature for the purpose of preventing the application of national legislation that is contrary to those provisions. (14) That aspect of the question referred for a preliminary ruling is thus hypothetical in its view.
34.      I am not convinced by that line of argument.
35.      First, while it is common ground that a directive cannot of itself create obligations in regard to an individual and cannot therefore be relied upon as such against that individual, the Court has consistently held that the national courts must interpret the provisions of their national law, in particular those transposing a directive, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it. (15)
36.      In the present case, the referring court will be required to interpret Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code in accordance with EU law and, to that end, to determine whether or not it is appropriate to confirm the interpretation of those provisions adopted by the tribunal de commerce de Paris (Commercial Court, Paris).
37.      Secondly, and in any event, the Court has held that failure to comply with the notification obligation laid down in Article 3(4)(b) of Directive 2000/31 renders the national legislation concerned unenforceable against individuals both in the context of criminal proceedings and in the context of a dispute between individuals. (16) Accordingly, in so far as the question referred for a preliminary ruling raises the issue of whether national provisions such as those at issue in the main proceedings are covered by that obligation, the Court’s answer is undoubtedly relevant to the resolution of the dispute pending before the referring court.
C.      The compatibility with EU law of the restrictions on the physical advertising of online sales services relating to medicinal products
38.      Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code generally prohibit pharmacists from soliciting clients in a manner contrary to the dignity of their profession or in such a way as to encourage the misuse of medicinal products. In the present case, the tribunal de commerce de Paris (Commercial Court, Paris) interpreted and applied those provisions for the purpose, more specifically, of penalising the mailing by A of more than three million leaflets, inserted in the packages of commercial partners or delivered directly to the letter boxes of potential customers, and the promotions offered by A. (17)
39.      To that end, the question referred invites the Court to determine whether EU law precludes national legislation which prohibits, first, the large-scale mailing of advertising leaflets intended to attract potential customers in a Member State to the website of a pharmacy established in another Member State which sells medicinal products that are authorised in France and may be supplied there without prescription and, secondly, promotions taking the form of discounts on the total amount of the order for such medicinal and quasi-pharmaceutical products, when that amount exceeds certain thresholds.
40.      As a first step, it is necessary to identify the instruments of EU law applicable to advertising activities which, while having as their object the promotion of online sales services relating to medicinal products, are carried out by means of physical media. In my view, contrary to what A and the Commission claim, such activities do not come within the scope of Article 3 of Directive 2000/31 (section 1). Nor are they governed by the provisions on advertising medicinal products contained in Directive 2001/83 (section 2). Member States therefore remain free to regulate such activities within the limits of the FEU Treaty (section 3).
1.      The inapplicability of Article 3 of Directive 2000/31
41.      In accordance with Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, (18) the concept of ‘information society service’ covers ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’. As is apparent from recital 18 of Directive 2000/31, that concept covers the sale of goods online. It also extends to services which are not remunerated by those who receive them, such as the provision of online commercial communications. (19)
42.      In the light of that definition, there can be little doubt that the online sales services relating to medicinal and quasi-pharmaceutical products provided by A constitute information society services. (20) The online advertising engaged in by A, while forming part of those online sales services, can also be regarded, in itself, as an information society service.
43.      On that basis, those services are subject to the ‘country of origin’ principle established in Article 3 of Directive 2000/31. As is clear from paragraph 1 of that article, that principle means that the provider of an information society service must comply with the national provisions applicable in the Member State in which he or she is established (also called the ‘Member State of origin’) as regards matters coming within the coordinated field, as defined in Article 2(h) of Directive 2000/31. Under Article 3(2) of that directive, other Member States may not restrict, for reasons coming within the coordinated field, the freedom to provide such a service, subject to the derogations authorised under the conditions listed in paragraph 4 of that article.
44.      In my view, as Daniel B and Others argue, the framework of the conditions within which the provider of an online sales service may advertise its internet portal by means of physical media does not come within the scope of the country of origin principle established in Article 3 of Directive 2000/31.
45.      On the one hand, the sending, on physical media, of commercial communications for online sales services cannot be categorised, as such, as an information society service. Physical advertising aimed at directing customers to the website by means of which a service provider provides online sales services does not constitute a service provided ‘by electronic means’.
46.      On the other hand, nor can the country of origin principle apply to the regulation of such commercial communications on the ground that such regulation would restrict the free movement of those online sales services. This is the case because requirements relating to physical advertising do not, in my view, come within the coordinated field within the meaning of Article 2(h) of Directive 2000/31.
47.      In this connection, I would point out that the coordinated field covers the requirements which a service provider must meet with regard to both the taking-up of the activity of providing an information society service and the pursuit of that activity. Under Article 2(h)(i) of Directive 2000/31, the requirements relating to the pursuit of an activity of providing an information society service include those relating to the quality or content of the service, ‘including those applicable to advertising’. Recital 21 of Directive 2000/31 states, however, that the coordinated field ‘covers only requirements relating to online activities’, such as, inter alia, ‘online advertising’.
48.      That interpretation is also supported by the fact that the delivery of goods ordered online, as a physical operation which occurs after the provision of an information society service, is expressly excluded from the coordinated field under Article 2(h)(ii) of Directive 2000/31. (21) That same logic implies, to my mind, that physical advertising, carried out prior to the provision of such a service, also falls outside the coordinated field.
49.      Such an exclusion appears to me to be all the more justified since the physical advertising used by the provider for the online sales services which he supplies cannot be regarded as an integral part of those services. Indeed, such advertising is separable from the future and hypothetical event of online sales to the recipients of the advertising leaflets. In those circumstances, the distribution of commercial communications on physical media is not an inseparable part of the pursuit of the information society service of selling goods online.
2.      The inapplicability of Titles VIII and VIIIa of Directive 2001/83
50.      Titles VIII and VIIIa of Directive 2001/83, entitled ‘Advertising’ and ‘Information and advertising’, respectively, contain a series of provisions governing the advertising of medicinal products. According to the case-law, those provisions have exhaustively harmonised the field of advertising medicinal products. (22)
51.      In my view, as the Commission has essentially argued, the provisions of Titles VIII and VIIIa of Directive 2001/83 do not harmonise the field of advertising, whether carried out on physical or electronic media, of online sales services relating to medicinal products. (23) In that regard, I would point out that, as is clear from the documents before the Court, A’s advertising campaign was designed to encourage, not the purchase of specific medicinal products, but rather the use of the online sales services offered by that company for a whole range of medicinal and quasi-pharmaceutical products. That finding is not called into question by the fact that one or another commonly used medicinal product might, depending on the circumstances, and as noted by Daniel B and Others, be shown for illustrative purposes on the advertising leaflets distributed.
52.      In that regard, the wording of Article 86(1) of that directive is, admittedly, not conclusive in that it defines ‘advertising of medicinal products’ as including ‘any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products’. That definition does not necessarily exclude, at first sight, the promotion, not of the consumption of specific medicinal products, but of the purchase of unspecified medicinal products from a particular pharmacy. I note, however, that none of the forms of door-to-door information listed by way of examples in Article 86(1) of that directive concerns advertising for a specific pharmacy. Moreover, all of the provisions of Articles 86 to 100 of that directive relate to the advertising of a given medicinal product. They seek to regulate the content of the advertising message as well as the manner of advertising medicinal products. Those provisions are not intended to govern the advertising of a pharmacy’s services or, in particular, of its online sales services relating to medicinal products.
53.      In other words, the provisions of Titles VIII and VIIIa of Directive 2001/83 harmonise solely – and exhaustively – the conditions under which Member States may restrict the advertising of medicinal products. That harmonisation is without prejudice to the possibility for Member States to regulate, within the limits set by the FEU Treaty and, where appropriate, by other instruments of secondary legislation, the areas which it does not cover, such as advertising for a particular pharmacy or for the online sales services provided by that pharmacy.
54.      That conclusion is not called into question by the fact that the Court held, in the judgment in Deutscher Apothekerverband, (24) that Article 88(1) of Directive 2001/83, which prohibits advertising for prescription medicines, precludes an absolute prohibition of the advertising of online sales services relating to medicinal products inasmuch as it was applied to non-prescription medicines. The approach followed by the Court means solely, in my view, that such a prohibition, although not directed at the advertising of medicinal products as such, is tantamount, in practice, to the prevention of such advertising when the medicinal products in question are sold online. It does not at all follow that any form of restriction on the advertising of online sales services relating to non-prescription medicinal products is prohibited on the ground that it is not expressly authorised by the provisions of Titles VIII and VIIIa of Directive 2001/83.
55.      By contrast, the rules on advertising online sales services relating to medicinal products could, in so far as they have the effect of restricting the online sale of medicinal products to patients, constitute conditions for the retail sale, within the territory of a Member State, of medicinal products for sale at a distance to the public by means of information society services. Under Article 85c(2) of Directive 2001/83, Member States may lay down such conditions provided that they are justified on grounds of public health protection.
56.      In this regard, recital 21 of Directive 2011/62, by which Article 85c of Directive 2001/83 was introduced, states that, by paragraph 2 of that article, the EU legislature intended ‘[to take] account … of the fact that specific conditions for retail supply of medicinal products to the public have not been harmonised at Union level and, therefore, Member States may impose conditions for supplying medicinal products to the public within the limits of the [FEU Treaty]’. Thus, Article 85c(2) of Directive 2001/83 must be understood as a simple recognition of the fact that the Member States have the power to regulate the conditions for the retail sale of medicinal products in compliance with the FEU Treaty and, in particular, with the fundamental freedoms which it guarantees.
3.      The application of Article 34 TFEU
57.      Since, as is clear from the foregoing, the physical advertising of online sales services relating to medicinal products supplied by a pharmacy is not harmonised at EU level, national provisions which, like Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code as interpreted and applied by the tribunal de commerce de Paris (Commercial Court, Paris), limit the possibilities of advertising, those services must be examined in the light of the fundamental freedoms guaranteed by the FEU Treaty.
(a)    The need for an examination in the light of the freedom of movement of goods and/or the freedom to provide services
58.      The parties and interested parties which have submitted observations to the Court disagree as to whether national measures prohibiting pharmacies from mass-mailing advertising leaflets and offering through their websites reductions above certain purchase thresholds, such as those at issue in the main proceedings, must be examined in the light of the free movement of goods guaranteed in Article 34 TFEU, as suggested by the referring court, in the light of the freedom to provide services provided for in Article 56 TFEU or in the light of both those freedoms in turn.
59.      While A, the Greek Government and the Commission assess the measures at issue in the light of Article 34 TFEU, (25) the Spanish and Netherlands Governments examine them in the light of Article 56 TFEU. The French Government, having argued that those measures constitute selling arrangements falling outside the scope of Article 34 TFEU, invites the Court to assess whether they are compatible with Article 56 TFEU.
60.      I would point out in this regard that the online sale of medicinal products constitutes an ‘information society service’ for the purposes of Article 1(1) of Directive 2015/1535. It must also be regarded as a ‘service’ covered by Article 56 TFEU. However, A’s advertising campaign, by promoting a certain sales channel – its internet portal dedicated to French consumers – sought to attract those consumers so that they would buy the medicinal and quasi-pharmaceutical products offered by that company. Those two categories of products constitute ‘goods’ within the meaning of Article 34 TFEU. (26) Therefore, the measures at issue are liable to come within the scope of both Article 34 TFEU, in so far as they concern the arrangements for marketing goods, and Article 56 TFEU, in so far as they limit the means by which a pharmacy can publicise its online sales services relating to medicinal products.
61.      According to settled case-law, where a national measure relates to both the free movement of goods and another fundamental freedom, the Court will in principle examine it in relation to one only of those two fundamental freedoms if it appears that one of them is entirely secondary in relation to the other and may be considered together with it. (27)
62.      The Court has already held that, although the conditions laid down for the marketing of a product come in principle within the scope of the free movement of goods and not of the freedom to provide services, it cannot be excluded that the sale of a product may be accompanied by an activity having ‘services’ aspects. It must be established, in each case, whether that activity is or is not wholly secondary in relation to the elements concerning the free movement of goods. (28)
63.      In accordance with those principles, the Court examined national measures restricting an undertaking’s advertising of the goods which it offers for sale in the light of the free movement of goods alone. (29) The dissemination of advertising was regarded, rather than as an end in itself, as a secondary element in relation to the sale of the goods in question. (30) The Court also assessed national measures governing the sale of goods over the internet – which nonetheless constitutes an information society service – solely on the basis of Article 34 TFEU. (31)
64.      Applied to the present case, that approach justifies, to my mind, the view that, although the advertising campaign sought to promote, not the specific products offered for sale by A, but rather the online sales services provided by it, the dissemination of advertising was incidental to the sale of those products.
65.      The conclusion that the measures at issue in the main proceedings, arising from the application of Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code, must be assessed solely in the light of Article 34 TFEU is not invalidated by the judgment in Gourmet International Products, (32) which the French Government invokes in support of the argument that those measures should also be assessed in the light of Article 56 TFEU.
66.      In that judgment, the Court examined, in the light, in turn, of the free movement of goods and of the freedom to provide services, national rules restricting the scope for advertising alcoholic beverages. (33) The Court had proceeded in a similar manner in the judgments in De Agostini and TV-Shop (34) and ARD, (35) with regard to national rules restricting television advertising for goods. In those judgments, the Court had held that those national rules, although they could constitute selling arrangements excluded from the scope of the free movement of goods, had to be assessed in the light of the freedom to provide services.
67.      Unlike the present case, relating to advertising by a pharmacy of its own online sales services, those judgments concerned advertising services provided by a service provider established in one Member State to a recipient (advertiser) established in another Member State. (36) In such a context, the conditions for the cross-border provision of an advertising service could not be regarded as incidental to the sale of goods by the advertiser.
68.      It follows that the measures at issue in the main proceedings, resulting from the application of Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code, must be examined in the light of Article 34 TFEU, without it being necessary to determine whether they also comply with Article 56 TFEU.
(b)    Classification of the measures at issue as ‘measures having equivalent effect’
69.      Article 34 TFEU prohibits between Member States quantitative restrictions on imports and all measures having equivalent effect. Since the judgment in Dassonville, (37) the Court has taken the view that all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union constitute measures having an effect equivalent to quantitative restrictions within the meaning of that provision.
70.      According to the case-law resulting from the judgment in Keck and Mithouard, (38) the application to goods from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of that case-law, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic goods and of those from other Member States.
71.      The Court has repeatedly held that national rules restricting an undertaking’s opportunities to advertise constitute measures restricting certain selling arrangements. (39) Such rules therefore fall outside the scope of Article 34 TFEU if the two conditions referred to above are fulfilled.
72.      The first of those conditions is clearly fulfilled in the present case. The referring court starts from the premiss that, as the tribunal de commerce de Paris (Commercial Court, Paris) found, Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code apply to all pharmacies selling medicinal products to the French public, whether they are established in France or in another Member State.
73.      More problematic is the question whether the second of those conditions is also fulfilled. In this regard, the Court has ruled on several occasions that national provisions which prohibited certain types of advertising in particular sectors affected in the same way, in fact and in law, the marketing of products from other Member States and the marketing of national products, and therefore constituted selling arrangements that fell outside the scope of Article 34 TFEU. (40) This was true, in particular, of a rule of professional conduct prohibiting pharmacists from advertising, outside their pharmacy, quasi-pharmaceutical products which they are authorised to market. (41)
74.      However, the Court did not view in the same way national provisions which imposed an outright ban on advertising or, at least, on a certain form of promoting a product lawfully sold in the Member State in question.
75.      This approach demonstrates the Court’s recognition of the considerable importance of advertising in allowing products from one Member State to access the market of another Member State. (42) This is particularly true when the advertising is for a company’s online sales portal. Internet sales are a particularly effective means of selling in one Member State medicinal products from another Member State. (43) In that regard, A argues that, for a pharmacy established in another Member State, advertising is the only means available to attract French customers to its website, in the absence of the visibility offered by the existence of a physical pharmacy in France.
76.      Thus, in the judgment in Gourmet International Products, (44) a prohibition of all advertising for alcoholic beverages directed at consumers in the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway was held to be liable to impede access to the market for products from other Member States more than it impeded access for domestic products, with which consumers are instantly more familiar. (45)
77.      By contrast, the Court held, in the judgment in Karner, (46) that a prohibition which does not target a certain form of advertising as such, although it is, in principle, liable to limit the total volume of sales in the Member State in question and, consequently, also to reduce the volume of sales of goods from other Member States, does not affect the marketing of products originating in other Member States more than it affects the marketing of products from the Member State in question.
78.      In order to determine whether a national measure leads to an outright ban on advertising, or at least on a certain form of advertising, within the meaning of that line of case-law, certain lessons can, in my view, be drawn, by analogy, from the Court’s definition of a related concept used in Article 24(1) of Directive 2006/123/EC on services in the internal market. (47) Pursuant to that provision, Member States must remove total prohibitions on commercial communications by the regulated professions. According to the Court, it is necessary, in that context, to regard as total prohibitions not only rules prohibiting members of such a profession from engaging in commercial communications whatever their form but also rules which prohibit one or more forms of commercial communication. Thus, the concept of ‘total prohibitions’ covers professional rules forbidding the communication, in one or more given media, of information on providers or their activities. (48) That definition can, in my view, be transposed to the context of the application of Article 34 TFEU.
79.      In the present case, at first sight and as the French Government and the Commission maintain, a prohibition on advertising online sales services relating to medicinal products in the form of the mass mailing of leaflets by post, including in tandem with a commercial partner’s packages, in some circumstances by offering discounts, does not in itself have the effect of totally prohibiting for those products a certain form of advertising – namely advertising by post.
80.      However, A argues that, as interpreted and applied by the tribunal de commerce de Paris (Commercial Court, Paris), Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code are tantamount de facto to characterising any advertising carried out by a pharmacy as being potentially contrary to the dignity of the profession and any discounting of prices as presenting a risk of inducement to the misuse of medicinal products. (49) In particular, A complains that the tribunal de commerce de Paris (Commercial Court, Paris) failed to establish any criteria for classifying as ‘large scale’ a given advertising practice or any threshold above which a promotion is deemed to serve as an inducement to the misuse of medicinal products. The Netherlands Government also takes the view that French law generally prohibits all forms of advertising carried out both online and off-line by pharmacists.
81.      Against this, Daniel B and Others contend that the creation of a pharmacy’s website may give rise to an announcement in the printed press, referring to the address of that website. Pharmacists could also advertise their online sales activities in the printed press. (50) Daniel B and Others appear, by contrast, to accept that French law at the very least prohibits pharmacies from advertising to private individuals by post.
82.      In those circumstances, it will be for the cour d’appel de Paris (Court of Appeal, Paris) to verify whether those provisions, alone or in combination with other legislative or regulatory provisions, have the effect of totally prohibiting the advertising by mail of online sales services relating to medicinal products. If the answer to that question is in the affirmative, the restrictions imposed by Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code should be regarded as measures having equivalent effect within the meaning of Article 34 TFEU. It would then be for the referring court to examine whether those restrictions are nevertheless justified by one of the reasons of general interest listed in Article 36 TFEU or by overriding requirements. (51)
(c)    The justification of measures having equivalent effect
83.      The French Government argues that the purpose of Article R. 4235‑22 of the Public Health Code is, as its wording indicates, to protect the dignity of the profession of pharmacist. That purpose, it submits, contributes to the pursuit of the wider objective of protecting public health. Article R. 4235‑64 of that code seeks to prevent the excessive or inappropriate use of medicinal products and, therefore, also works to protect public health.
84.      The protection of public health is an objective of general interest expressly recognised in Article 36 TFEU. Moreover, the Court has already recognised the legitimacy of the more specific objectives of ensuring the independence, dignity and integrity of a regulated profession (52) and of preventing the excessive consumption or incorrect use of medicinal products. (53)
85.      The objectives invoked by the French Government may, however, justify the measures at issue only if those measures are appropriate to secure the attainment of those objectives and do not go beyond what is necessary in order to attain them. (54)
86.      The burden of proving that the measure is appropriate and necessary for the attainment of the objectives pursued lies, in each individual case, with the national authorities. Where a national court examines national legislation in the light of the justification relating to protection of the health and life of humans, that court must assess objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods. (55)
87.      In the context of that proportionality assessment, account must be taken of the fact that the health and life of humans rank, according to the settled case-law, foremost among the assets and interests protected by the FEU Treaty. It is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since that level may vary from one Member State to another, the Court allows Member States discretion in that regard. (56)
88.      In addition, the Court has repeatedly emphasised the very particular nature of medicinal products, the therapeutic effects of which distinguish them substantially from other goods. (57) Those therapeutic effects have the consequence that, if medicinal products are consumed unnecessarily or incorrectly, they may cause serious harm to health, without the patient being in a position to realise that when they are administered. (58)
89.      So far as commercial communications relating to the provision of health care are concerned, the Court has held, in the judgment in Vanderborght, (59) that the extensive use of advertising or the selection of aggressive promotional messages could, by damaging the image of the profession of dentist, by distorting the relationship between dentists and their patients, and by promoting the provision of inappropriate and unnecessary care, undermine the protection of health and compromise the dignity of the profession of dentist. As the French Government argues, that finding is, in the light of the relationship of trust which must also prevail between a pharmacist and his client, applicable by analogy to the advertising by a pharmacy of its online services relating to the sale of medicinal products. (60)
90.      In the light of those considerations, the prohibition on the mass insertion in commercial partners’ packages of advertising leaflets, which in some circumstances display promotions based on the amount of the order, appears to me, in the first place, appropriate for the attainment of the objective of protecting the dignity of the profession of pharmacist. As the Spanish Government argues, the insertion of such leaflets presents the risk that medicinal products will be treated in the same way as ordinary goods, and placed on the same footing as consumer items, such as clothing or footwear, delivered in the commercial partner’s packages. The large-scale distribution of advertising leaflets to the letterboxes of potential consumers also conveys a commercial and mercenary image of the profession of pharmacist which may alter the public perception of that profession. Like the French, Greek and Spanish Governments, I take the view that a Member State is entitled to consider that practice to be contrary to the dignity of that profession.
91.      Article R. 4235‑22 of the Public Health Code is consistent, moreover, with the rules set out in the Community code of good conduct for communications from pharmacists, (61) which Daniel B and Others have annexed to their written observations. (62) According to that code, ‘when advertising and promotions are permitted, they should uphold the professional appearance required of a pharmacy’.
92.      Furthermore, in so far as the promotions proposed in the advertising leaflets and based on the amount of the order were intended precisely to encourage the purchase, in particular, of medicinal products on the website of the pharmacy in question and to make patients spend amounts exceeding certain thresholds, the prohibition of such promotions was, in my view, appropriate for the attainment of the objective of ensuring that the excessive consumption of medicinal products is not encouraged.
93.      In that regard, it is necessary to reject the line of argument, relied on in essence by A, that the prohibition of such promotions is, in the present case, neither useful nor, a fortiori, necessary for the protection of public health, in so far as that company exclusively sells, in addition to quasi-pharmaceutical products, non-prescription medicines. According to A, since such medicinal products present a lower health risk than prescription medicines, the interest of public health does not justify the adoption of restrictive measures intended to limit or control their consumption.
94.      As the French and Greek Governments argued, in essence, at the hearing, the fact that the supply of certain medicinal products does not require the involvement of a doctor in no way implies that those medicinal products do not have undesirable side effects and do not pose a significant risk to public health, in particular if they are consumed in excessive quantities. Moreover, the Court has recognised the risk associated with the overconsumption or misuse of medicinal products without limiting that risk to medicinal products requiring a medical prescription(63)
95.      In the second place, with regard to the necessity of the prohibitions at issue, I would point out that the Court has ruled, in the judgment in Vanderborght, (64) that national legislation imposing a general and absolute prohibition on any form of advertising used by dentists to promote their care activities exceeds what is necessary to protect public health and the dignity of the profession of dentist. By contrast, according to the Court, national legislation supervising, closely if necessary, the form and manner which the communication tools used by dentists may have involves alternative, less restrictive measures that are compatible with Article 56 TFEU. That reasoning can, in my view, be transposed to restrictions on the form and manner of advertising which pharmacies may use for the goods which they sell and the services which they provide.
96.      According to Daniel B and Others, as well as the French and Greek Governments, Articles R. 4235‑22 and R. 4235‑64 of the Public Health Code merely lay down a strict framework governing the form and manner of advertising which pharmacies may use.
97.      As explained above, (65) A complains, by contrast, about the cumulative effect of the various restrictions which French law imposes on the advertising of online sales services relating to medicinal products. The Netherlands Government, like A, is unsure whether the French legislation does not in fact contain a general prohibition on advertising by pharmacists. The Commission also takes the view that the French rules impose major restrictions on advertising on most conceivable media. Nevertheless, none of those parties or interested parties disputes that, as pointed out by Daniel B and Others and the Commission, the advertising of online sales services provided by a pharmacy remains, at the very least, possible in the printed press provided that certain conditions are met.
98.      In those circumstances, it does not appear that a pharmacy established in another Member State is deprived of every possibility of advertising its online sales services targeted at French consumers(66) In any event, I note that the case in the main proceedings concerns only the compatibility with EU law of a prohibition on a pharmacist conducting an advertising campaign for its online sales services consisting in the dispatch of unsolicited advertising leaflets to the public offering, in some circumstances, discounts on the price of the medicinal products ordered. The resolution of this case does not require a decision on whether the provisions of the Public Health Code are disproportionate, in so far as they also prohibit other forms of advertising.
99.      Moreover, A maintains that the prohibition of promotions based on the amount of the order exceeds what is necessary to prevent the misuse of medicinal products in so far as it applies even in cases where the order includes only quasi-pharmaceutical products. The documents before the Court do not make it possible to determine whether Article R. 4235‑64 of the Public Health Code also prohibits such promotions where the amount of the order taken into account to determine whether a discount is obtained covers only quasi-pharmaceutical products, to the exclusion of any medicinal products. If it does, the prohibition in question would, in my view, go beyond what is necessary to prevent the misuse of medicinal products. A prohibition of promotions based on the amount of the order solely to the extent to which that order includes medicinal products would, in my view, be sufficient to attain that objective.
100. However, in any event, the prohibition on the mass mailing to potential consumers of advertising leaflets containing promotions such as those at issue in the main proceedings seems to me already, in itself, to be justified by the need to protect the dignity of the profession of pharmacist.
D.      The compatibility with EU law of restrictions on the digital advertising of online sales services relating to medicinal products
101. As is apparent from the order for reference, Article R. 4235‑64 of the Public Health Code has also been interpreted by the tribunal de commerce de Paris (Commercial Court, Paris) as prohibiting promotions linked to the amount of the order where they are displayed on a pharmacy’s website. Moreover, the Decree on technical rules prohibits pharmacies from using paid referencing on search engines and price comparison websites. In so far as the purpose of that technique is to attract to a pharmacy’s website potential consumers who conduct internet searches, paid referencing is also in the nature of advertising(67)
102. For the reasons set out below, I find that prohibiting a pharmacy from displaying promotions for medicinal products on its website and prohibiting the use of paid referencing come within the scope of Article 3 of Directive 2000/31 (section 1). In so far as such prohibitions are imposed by the Member State of destination of an information society service and restrict the freedom to provide that service for a reason coming within the coordinated field, they are allowed only under the strict conditions set out in paragraph 4 of that article (sections 2 and 3).
1.      The applicability of Article 3 of Directive 2000/31
103. Under Article 3(2) of Directive 2000/31, the Member State of destination of an information society service may not, in principle, restrict the freedom to provide that service for reasons coming within the coordinated field, as defined in Article 2(h) of that directive.
104. The coordinated field includes, I would recall, the requirements which the provider of an online sales service must fulfil with regard to the advertising of that service on the internet(68)
105. That provision also states that such requirements come within the coordinated field ‘regardless of whether they are of a general nature or specifically designed for [information society service providers or such services]’. (69) In addition, the fact that Article R. 4235‑64 of the Public Health Code covers, in a general way, both online and off-line advertising cannot exclude the requirements which it lays down from the coordinated field.
106. Consequently, the Member State of destination of an online sales service cannot, in principle, restrict that service on account of requirements relating to internet advertising.
107. However, the prohibition of paid referencing on search engines, by limiting the possibilities of advertising an online sales service, restricts the freedom to provide that service. Since internet advertising can in itself be regarded as an information society service, that prohibition also hinders the free movement of such advertising. The same applies to the prohibition on offering discounts on a pharmacy’s website, in so far as that practice is regarded as encouraging the consumption of medicinal products.
108. In that regard, the line of argument put forward by Daniel B and Others that Article 8(1) of Directive 2000/31 recognises the competence in principle of the Member State of destination to regulate commercial communications by members of a regulated profession, such as pharmacists, (70) cannot be accepted. That provision requires Member States to permit commercial communications which are part of, or constitute, an information society service, subject to compliance with the professional rules regarding, in particular, the independence, dignity and honour of the profession. In my view, that provision cannot be regarded as a rule conferring competence on the Member State of destination to regulate those commercial communications by way of derogation from Article 3(1) and (2) of Directive 2000/31. Article 8(1) of that directive appears in a separate chapter, entitled ‘Principles’, which contains a series of provisions providing for a minimum level of harmonisation of certain aspects relating to the provision of information society services(71) Article 8(1) of that directive thus constitutes a positive harmonisation provision in that it requires each Member State to allow members of a regulated profession established in its territory to send commercial communications in relation to the information society services which they offer in accordance with the rules of professional conduct applicable to that profession. (72)
109. In order to answer the question submitted by the referring court, it is also necessary to determine whether prohibiting a pharmacy from displaying promotions for medicinal products on its website and prohibiting the use of paid referencing constitute conditions imposed by a Member State for the retail sale of medicinal products on its territory within the terms of Article 85c(2) of Directive 2001/83. (73) That provision, the content of which the Court has not yet had the opportunity to explain, gives rise to certain difficulties of interpretation as regards its relationship with Article 3 of Directive 2000/31.
110. Contrary to what the Spanish Government argues, Directive 2001/83 does not constitute a lex specialis taking precedence over Directive 2000/31. As is clear from Article 1(3) and recital 11 thereof, Directive 2000/31 coexists with instruments of secondary legislation which apply more specifically in particular sectors. Only the sectors listed in Article 1(5) of that directive and in the annex thereto (74) – which include neither online sales services nor advertising services relating to medicinal products (75) – fall outside the scope of the country of origin principle laid down in Article 3 thereof.
111. As I have already pointed out, (76) Article 85c(2) of Directive 2001/83 merely reiterates that the Member States have competence to lay down conditions for the retail supply of medicinal products on their territories within the limits provided for by the FEU Treaty. That provision applies without prejudice to the restrictions which Article 3(2) of Directive 2000/31 places on the competence of the Member State of destination of online sales services relating to medicinal products to regulate the conditions governing the exercise of those online sales and associated online advertising activities.
112. Since the field coordinated by Directive 2000/31 includes, in accordance with Article 2(h)(i) thereof, requirements relating to the exercise of the activity of providing an information society service, and since that category includes requirements relating to online advertising for such services, Article 85c(2) of Directive 2001/83 cannot therefore allow the Member State of destination to regulate that form of advertising and, in so doing, to derogate from the principle established in Article 3(1) and (2) of Directive 2000/31 that the Member State of origin has competence in that regard.
113. However, Article 3(4) of Directive 2000/31 does allow Member States to derogate from the country of origin principle subject to compliance with the substantive and procedural conditions set out, respectively, in points (a) and (b) of that provision. As is clear from the judgment in Airbnb Ireland, (77) such derogations may consist in the application to an information society service provider, in a specific case, of rules which apply generally to a category of specific providers or services.
114. It is therefore necessary to examine, in the present case, whether the conditions listed in Article 3(4) of Directive 2000/31 are fulfilled. Moreover, it will not be necessary to examine the requirements relating to online advertising in the light of the provisions of the FEU Treaty. According to the case-law, any national measure in an area which has been the subject of exhaustive harmonisation at the level of the European Union must be assessed in the light of the provisions of that harmonising measure, and not in the light of the provisions of primary law(78) Article 3 of Directive 2000/31 contains, more specifically, a coordination rule designed to safeguard the principle of control at source of information society service activities in matters coming within the coordinated field. The logic underlying it means that, with regard to those matters, Member States may derogate from the country of origin principle only under the conditions laid down in paragraph 4 of that article. Such derogations therefore need not be examined in the light of the provisions of the FEU Treaty.
2.      Compliance with the procedural requirements laid down in Article 3(4)(b) of Directive 2000/31
115. Article 3(4)(b) of Directive 2000/31 provides that, before adopting a measure derogating from paragraph 2 of that article, the Member State of destination of the service in question must ask the Member State of establishment of the provider to take measures. If the latter does not comply with that request or fails to adopt adequate measures, the first Member State must notify the Commission and the second Member State of its intention to take restrictive measures against that provider. (79)
116. A argues that the French Republic has failed to fulfil its obligations under Article 3(4)(b) of Directive 2000/31. Although it is for the referring court to carry out that verification, the documents before the Court do not reveal that that Member State notified the Commission and the Member State in which A is established, namely the Kingdom of the Netherlands, of its intention to apply to that service provider Article R. 4235‑64 of the Public Health Code and the Decree on technical rules. (80)
117. As pointed out by A, it is evident from the database of notifications under Directive 2015/1535 that both the Decree on technical rules and the Decree on best practice in the dispensing of medicinal products were notified to the Commission under Article 5(1) of that directive. (81) Such notification cannot, however, replace that required by Article 3(4)(b) of Directive 2000/31. The notification obligations laid down in those two provisions apply in a distinct temporal sequence, have a different purpose and are complementary in nature.
118. On the one hand, Article 5(1) of Directive 2015/1535 provides for the notification to the Commission by Member States of draft regulations concerning, inter alia, rules relating to information society services. The purpose of that notification is to enable the Commission, as well as the other Member States, (82) to verify, prior to their adoption, whether the proposed general and abstract rules are consistent with the fundamental freedoms guaranteed by the FEU Treaty.
119. On the other hand, after those rules have been adopted, Article 3(4)(b) of Directive 2000/31 still requires the Member State of destination to notify the Member State of origin and the Commission of its intention to apply those rules, in a specific case, to a particular provider or service, by specifying the measure which it intends to take in respect of that provider or service. Moreover, the Member State of destination may apply such rules only if it has previously asked the Member State of origin to take measures and the latter has not acceded to that request or has adopted inadequate measures.
120. In the judgment in Airbnb Ireland, (83) the Court held that failure to fulfil the obligation of prior notification laid down in Article 3(4)(b) of Directive 2000/31, like that laid down in Article 5(1) of Directive 2015/1535, renders the legislation providing for the restrictive measure at issue unenforceable against the provider concerned. The fact that such legislation is unenforceable in this regard may be relied on not only in criminal proceedings but also, as in the present case, in a dispute between individuals.
121. In the event that the referring court should confirm that the French Republic has not complied with the procedural requirements laid down in Article 3(4)(b) of Directive 2000/31, it would have to find that the provisions at issue in the main proceedings are unenforceable against A, without there being any need to ascertain whether the substantive conditions set out in subparagraph (a) of that provision are fulfilled. (84) Those procedural and substantive conditions are, in fact, cumulative. (85) For the sake of completeness, however, I shall now turn to the examination of compliance with the substantive conditions laid down in Article 3(4)(a) of Directive 2000/31.
3.      Compliance with the substantive requirements laid down in Article 3(4)(a) of Directive 2000/31
122. Article 3(4)(a) of Directive 2000/31 provides that any measure restricting the free movement of an information society service must be necessary to safeguard public policy, the protection of public health, public security or the protection of consumers, must be taken against a service which effectively prejudices those objectives or presents a serious and grave risk of prejudice to them and must be proportionate to those objectives. Those requirements of necessity and proportionality largely overlap with the requirements which must be fulfilled by any obstacle to the fundamental freedoms guaranteed in Articles 34 and 56 TFEU. Accordingly, as the Commission has argued, it is in the light of the case-law relating to those provisions that it is necessary to assess whether the measures at issue are compatible with Article 3(4) of Directive 2000/31.
123. In support of the prohibition of the promotions displayed on A’s website, the French Government invokes the same objectives as those put forward in support of the prohibition of such promotions when they are brought to the public’s attention on physical media. Those objectives concern the protection of public health and therefore constitute, in accordance with Article 3(4)(a)(i) of Directive 2000/31, reasons capable of justifying a derogation from paragraph 2 of that article.
124. Paid referencing, which is designed to increase the visibility of a particular pharmacy by including its website among the first results on a search engine, does not in itself entail a promotional message having content which may be regarded as unworthy of the profession of pharmacist or as an inducement to the consumption of medicinal products. As regards the prohibition of that practice, the French Government relied, at the hearing, on the need to ensure a balanced distribution of pharmacies throughout national territory. According to that government, paid referencing is liable to alter that territorial balance by concentrating the marketing of medicinal products in the hands of large online pharmacies. That phenomenon, it is submitted, is likely to aggravate the situation of scarcity of pharmacies already noted in some regions of France. The French Government states that, while it cannot be ruled out that, as A and the Commission have pointed out, the online trade in medicinal products facilitates access for persons living in the most isolated areas to non-prescription medicinal products, the development of that practice has the collateral effect of making it more difficult to access medicinal products requiring a prescription, which can be supplied only in a physical pharmacy.
125. In that regard, the Court has already recognised that the need to ensure the stable provision of medicinal products for essential medical purposes in a Member State is capable of justifying an obstacle to trade between Member States, in so far as that objective contributes to the protection of the health and life of humans. (86) Consequently, the objective put forward by the French Government in support of the prohibition of paid referencing also constitutes a reason recognised as legitimate in Article 3(4)(a) of Directive 2000/31.
126. That said, I would point out that it is for the national authorities to provide the evidence that a measure restricting fundamental freedoms of movement is appropriate and necessary for ensuring that the legitimate objective pursued is attained. (87)
127. In that regard, the line of argument set out in points 90 to 99 of this Opinion, concerning the appropriateness and necessity of a prohibition on promotions brought to the attention of the public by means of leaflets delivered to their letter boxes and consisting in a price reduction once the order exceeds a certain amount, are applicable mutatis mutandis in the case where those promotions are displayed on the website of the pharmacy.
128. With regard to the prohibition of paid referencing, A and the Commission dispute, first of all, its appropriateness for attaining the objective sought by the French authorities. In A’s view, the various restrictions on advertising online sales services relating to medicinal products are more likely to prevent the entry of new, often smaller, players on the French market. For its part, the Commission doubts whether there is a sufficient causal link between the fact of engaging in advertising activities relating to the online sale of medicinal products and the disappearance of physical pharmacies. In this regard, the Commission argues that traditional pharmacies continue to enjoy certain competitive advantages, in particular with regard to access and immediate delivery of products. It also points out that traditional pharmacies retain a monopoly on the sale of prescription medicines.
129. In my view, the alleged absence of a proven causal link between prohibiting paid referencing and preventing the risk that a significant number of pharmacies may disappear in isolated areas cannot, in itself, preclude the appropriateness of that prohibition for attaining the objective relied upon. According to the case-law, where there is uncertainty as to the existence or extent of risks to human health – including, more specifically, risks to the supply of safe and high quality medicinal products to the population – the Member State in question is entitled to take protective measures without having to wait until the reality of those risks becomes fully apparent. In such a situation, that Member State may take the measures that reduce, as far as possible, the risks to public health. (88)
130. However, it seems to me that the Member State concerned is still required to substantiate the existence of the alleged risk and the reasonable likelihood of a causal link between the restrictive measure and the reduction of that risk – or, correspondingly, between the practice which that measure is intended to regulate and the increase in that risk. (89)
131. In other words, where a Member State relies, in support of a restrictive measure, on the need to avoid the materialisation of a risk – such as the emergence or worsening of the contraction of the territorial network of pharmacies – it cannot be required to produce empirical evidence demonstrating unambiguously the existence of a causal link between the measure in question and the desired effect. Such proof would involve waiting until that risk materialises in order to be able to check whether the restrictive measure actually remedies it. Examination of the proportionality of national rules adopted in the particularly sensitive area of public health must take account of the complexity of the assessments which governed the choice made by the national authorities and the degree of uncertainty which characterises the effects of such rules. (90) The Member State in question is nevertheless required to ensure that the supporting reasons invoked are accompanied by an analysis of the appropriateness and necessity of the rules and by specific evidence substantiating its arguments. (91) The national court must then ascertain whether the evidence adduced makes it possible reasonably to take the view that those rules are appropriate for the attainment of the objective pursued and whether it is possible to attain that objective by less restrictive measures. In that context, it is incumbent on the national court to take into account all the evidence available to it at the time at which it gives its ruling. (92)
132. In the present case, the French Government confined itself to asserting, before the Court, that paid referencing is likely to amplify the contraction of the territorial network of pharmacies, without providing any more specific analysis to accompany that line of argument. I have doubts as to whether such an assertion is sufficient to demonstrate the appropriateness of the prohibition of paid referencing to prevent such an effect. That said, it will be for the referring court to assess, in the light of all the evidence adduced before it at the time at which it gives its ruling, whether that government has established that the measure in question is appropriate for preventing a reduction in the number of pharmacies on French territory, which would have the effect that a safe and high-quality supply would no longer be guaranteed throughout that territory.
133. In that connection, I would merely note that, as the Court has already recognised, 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’. (93) However, that comparative advantage cannot, in itself, prevent the risk of a worsening of the scarcity of pharmacies invoked by the French Government from materialising. Provided that that government can substantiate the existence of that risk and establish the reasonable likelihood that paid referencing, by increasing the visibility of large online pharmacies, will increase that risk, the prohibition of that practice should be considered appropriate for the attainment of the objective of minimising the risk.
134. As regards, in the second place, the need for the prohibition of paid referencing, A argues that the adoption of a less restrictive measure, consisting in prohibiting solely paid referencing on the basis of particular keywords, could have been envisaged.
135. I doubt whether such a measure would make it possible to attain the objectives pursued by the French Government as effectively as the current prohibition. According to the French Government, the purpose of that prohibition is to prevent one pharmacy from being promoted to the detriment of all others. Since that effect of paid referencing does not depend on the choice of keywords, the objective pursued by that prohibition cannot be attained by limiting it to certain keywords.
136. Moreover, as the Commission has argued, while it is true that search engines are the main means for online pharmacies to make themselves known to the public, the French rules do not in any way prevent online pharmacies from appearing among the first results on a search engine on the basis of natural referencing (that is to say, carried out on the basis of the algorithm developed by that search engine, irrespective of any payment from the service provider concerned). In view also of the possibilities, however limited, of advertising their website by other means, (94) the prohibition of paid referencing does not therefore deprive pharmacies of all possibility of publicising their website.
E.      The compatibility with EU law of the obligation to require a patient to complete a health questionnaire
1.      The applicability of Article 3 of Directive 2000/31
137. The provision of the Decree on best practice in the dispensing of medicinal products which makes validation of the first order for medicinal products placed by a patient on a pharmacy’s website subject to prior completion of an online health questionnaire also comes, in my view, within the scope of the country of origin principle laid down in Article 3 of Directive 2000/31.
138. That provision concerns, rather than a condition for the retail supply of medicinal products on French territory for the purposes of Article 85c(2) of Directive 2001/83, a requirement relating to the actual exercise by a pharmacist of his online sales activities. It regulates the conditions under which the online sales contract may be concluded and the way in which the pharmacist’s sales and advice activity must be carried out online. However, the coordinated field, within the meaning of Article 2(h) of Directive 2000/31, encompasses, in accordance with point (i) of that provision, requirements relating to the pursuit of the service in question, and in particular to its content, including contractual matters. The obligation to require a patient to complete a health questionnaire, such as that at issue in the main proceedings, therefore indeed concerns a matter coming within the coordinated field.
139. Such an obligation, by entrusting the service provider with the task of collecting and analysing patients’ replies to the prescribed questionnaire and by having potentially, as A argues, a certain deterrent effect on patients wishing to purchase medicinal products online, amounts, in my view, to a restriction on the freedom to provide an information society service for the purposes of Article 3(2) of Directive 2000/31. (95) Consequently, it may be applied only in compliance with the substantive and procedural conditions laid down in Article 3(4)(a) and (b) of that directive.
2.      Compliance with the substantive and procedural conditions laid down in Article 3(4) of Directive 2000/31
140. As regards procedural conditions, it is not apparent from the documents before the Court whether the French authorities notified their intention to apply to A the Decree on best practice in the dispensing of medicinal products in accordance with Article 3(4)(b) of Directive 2000/31, this being a matter which it will be for the referring court to ascertain.
141. As regards the substantive conditions set out in Article 3(4)(a) of Directive 2000/31, which I shall once more address for the sake of completeness, the French Government, in support of the obligation imposed on a pharmacy to require the patient to complete the questionnaire concerned prior to validation of his first order on that pharmacy’s website, relies on the need to provide individual advice to a patient in order to protect him against the inappropriate use of medicinal products.
142. The Court has already recognised the legitimacy of that public health objective. (96) It is conceivable that, given the absence of contact between a pharmacist and a patient, the online sale of medicinal products involves a risk of incorrect use or misuse of those products. (97) As the French Government has pointed out, that risk is inherent, albeit to different degrees, in the supply of any medicinal product, whether or not it is subject to compulsory medical prescription.
143. It will be for the referring court to ascertain the appropriateness and necessity of the obligation at issue for attaining that objective on the basis of the evidence brought before it by the French Government and in the light of the considerations set out below.
144. In that regard, the French Government refers to a judgment of the Conseil d’État (Council of State), (98) in which that court explained that objective in the following terms: ‘such a requirement is intended to allow a pharmacist, in the particular circumstances of electronic dispensing, in which he is not placed in direct contact with a patient, to detect possible contra-indications, or even, as provided for in Articles R. 4235‑61 and R. 4235‑62 of the Public Health Code, to refuse to dispense a medicinal product when he forms the view that the interests of the patient’s health require it and to encourage the patient to consult a qualified practitioner whenever the pharmacist considers this necessary’. The Conseil d’État (Council of State) concluded, as the French Government maintains in the present case, that the requirement to complete the health questionnaire in advance did not subject the online sale of medicinal products to constraints that are disproportionate to the objective of protecting public health.
145. I agree with that assessment. As pointed out by Daniel B and Others, such a requirement makes it possible to ensure that every patient is equally protected, whether he or she obtains medicinal products over the internet or from a physical pharmacy. Contrary to what the Commission claims, the Decree on best practice in the dispensing of medicinal products does not subject the online supply of medicinal products to stricter rules than those governing their supply in pharmacies.
146. More specifically, it is apparent from the explanations provided by the French Government that the purpose of that decree is to take account of the particular nature and conditions characterising the online sale of medicinal products, for the purposes of which a pharmacist, in the absence of direct and visual contact with the patient, does not have the opportunity to give a patient advice on his own initiative where fulfilment of his professional obligation would require him to do so. (99) The situation of that pharmacist differs in this respect from the situation of a pharmacist who dispenses medicinal products from a physical dispensary. Admittedly, fulfilment of the professional obligation to provide advice does not necessarily imply that a pharmacist should ask every patient who comes into his pharmacy to answer the questions in the abovementioned questionnaire. However, the physical presence of a patient offers the pharmacist, at the very least, the opportunity to ask the patient the questions that he deems necessary to ensure compliance with his professional obligation to provide advice on the basis of the patient’s visible attributes and characteristics evidencing his state of health. The requirement to complete a health questionnaire is thus intended to place an online pharmacist on an equal footing with a pharmacist carrying on his activities in a physical dispensary, in order to ensure that he can fulfil his professional obligation to provide advice.
147. A has put forward a series of less restrictive measures which, in its view, would make it possible to achieve the desired aim of protecting public health with the same effectiveness. In particular, it argues, the Decree on best practice in the dispensing of medicinal products already ensures that patients can benefit from individual advice by requiring virtual pharmacies to provide them with the possibility of an interactive exchange with a pharmacist. A states that it also monitors the quantities ordered via its website on the basis of various factors, including the patient’s order history. Those controls are claimed to be sufficient to prevent the risk of overconsumption of medicinal products. The Commission also considers that giving a patient access to the package leaflet, reminding him of the main contra-indications and giving him the option of questioning a pharmacist before placing an order, as well as the possibility of pharmacists contacting a patient on the basis of the information available to them and in particular the order history, constitute less restrictive alternative measures.
148. As Daniel B and Others and the Spanish Government argue, the patient’s option of consulting the pharmacist before placing an order, even when coupled with checks on the quantities purchased following the first order, is not as effective as verification at an earlier stage – by means of the prior collection of information from the patient – that his order is, in quantitative and qualitative terms, appropriate for his state of health. Moreover, the Court has already ruled that ‘an increase in the number of online interactive features, which the customer must use before being able to proceed to a purchase’ of a medicinal product is a measure which is less detrimental to the free movement of goods, is acceptable as an alternative to a prohibition of the online sale of medicinal products and permits as effectively attainment of the objective of reducing the risk of misuse of medicinal products purchased online. (100)
149. In this regard, as the Greek Government has maintained, the questionnaire introduced by the Decree on best practice in the dispensing of medicinal products contains only basic questions relating to age, weight, height, sex, current treatments, history of allergic reaction, contra-indications and pregnancy or breastfeeding. Those questions call for a simple and direct answer from the patient. In my view, they could reasonably be considered relevant and necessary in order to prevent a patient from purchasing medicinal products inappropriate to his or her state of health.
150. In those circumstances, the obligation to require a patient to complete such a questionnaire prior to validation of his or her first order strikes me as appropriate and necessary for attaining the objective of ensuring the provision of individual advice to patients in order to protect them from misuse of medicinal products in the interest of public health.
V.      Conclusion
151. In the light of all of the foregoing considerations, I propose that the Court answer the question referred by the cour d’appel de Paris (Court of Appeal, Paris, France) as follows:
(1)      Article 34 TFEU does not preclude legislation of a Member State prohibiting advertising of online sales services relating to medicinal products provided by a pharmacy established in another Member State which consists in the large-scale mailing of advertising leaflets, in some circumstances by inserting them in the packages of commercial partners active in the online sale of everyday consumer goods, and in proposing price reductions where the order exceeds a certain amount, in so far as such legislation is necessary and proportionate to the attainment of the objective of protecting the dignity of the profession of pharmacist, this being a matter which it is for the referring court to ascertain.
(2)      Article 3(4)(b) 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, in particular electronic commerce, in the Internal Market (‘the Directive on electronic commerce’) precludes the Member State of destination of an online sales service relating to medicinal products from applying to the provider of that service, established in another Member State:
–        rules prohibiting promotions, displayed on that provider’s website, consisting in the offer of price reductions when the order exceeds a certain amount;
–        rules prohibiting the use of paid referencing services on search engines and price comparison websites, and
–        rules making the validation of a patient’s first order for medicinal products on the website of that provider subject to prior completion of a health questionnaire,
in so far as the first Member State has not notified the second Member State and the European Commission of its intention to apply the rules in question to that provider, this being a matter which it is for the referring court to ascertain.
In the event that such rules have been notified, Article 3(4)(a) of Directive 2000/31 does not preclude their application by the Member State concerned to a provider of an online sales service relating to medicinal products, established in another Member State, provided that such application is appropriate and necessary for the protection of public health, this being a matter which it is for the referring court to ascertain.
1      Original language: French.
2      Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).
3      Directive of the European Parliament and of the Council of 6 November 2001 (OJ 2001 L 311, p. 67), as amended by Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 (OJ 2011 L 174, p. 74), (‘Directive 2001/83’).
4      Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37).
5      Directive of the European Parliament and of the Council of 20 July 1998 amending Directive [98/34] (OJ 1998 L 217, p. 18).
6      Directive of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
7      This website has a top-level domain name ‘.fr’.
8      See Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22), as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 (OJ 2013 L 354, p. 132).
9      In that regard, see, inter alia, Debarge, O., ‘La distribution au détail du médicament au sein de l’Union européenne: un croisement entre santé et commerce’, Revue internationale de droit économique, 2011, p. 197 and pp. 201 to 217.
10      As pointed out by A, the situation of such a pharmacist differs from that of a pharmacist who moves physically to the territory of a Member State other than that in which he or she is established in order to provide services there. As is apparent from Article 5(2) of Directive 2005/36, the situation of the latter pharmacist is governed by Articles 5 to 9 of that directive. According to Article 5(3) of Directive 2005/36, he or she ‘shall be subject to professional rules of a professional, statutory or administrative nature which are directly linked to professional qualifications, such as the definition of the profession, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety, as well as disciplinary provisions which are applicable in the host Member State to professionals who pursue the same profession in that Member State’.
11      This provision reflects the lessons drawn from the judgment of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 112), in which the Court ruled that an absolute prohibition on the online sale of non-prescription medicines was incompatible with the free movement of goods.
12      Referencing consists in the indexing of a website’s pages on the first pages of search engines.
13      In setting out its question, the referring court cited only the Decree on best practice in the dispensing of medicinal products, invoked before it by Daniel B and Others. It is, however, apparent from the case file submitted to the Court that, as A has pointed out, the prohibition on purchasing a reference on search engines does not result from that decree but from the Decree on technical rules.
14      The French Government relies on the judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 44).
15      Judgment of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraphs 30 and 31 and the case-law cited).
16      Judgment of 19 December 2019, Airbnb Ireland (C‑390/18, EU:C:2019:1112, paragraph 97). That judgment was delivered after the French Government had submitted its written and oral observations to the Court.
17      See, however, point 80 of this Opinion.
18      See point 5 of this Opinion.
19      See judgment of 4 May 2017, Vanderborght (C‑339/15, EU:C:2017:335, paragraphs 36 and 37). The concept of ‘commercial communication’ is defined in Article 2(f) of Directive 2000/31 as ‘any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession’.
20      In its First Report to the European Parliament, the Council and the European Economic and Social Committee of 21 November 2003 on the application of Directive [2000/31], COM(2003) 702 final (p. 12), the Commission, moreover, explicitly referred to the online selling of pharmaceuticals as featuring among the services covered by that directive.
21      See, in that regard, judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraphs 29 and 30).
22      See judgment of 8 November 2007, Gintec (C‑374/05, EU:C:2007:654, paragraph 20).
23      The Conseil d’État (Council of State) (France) has also upheld this interpretation in its judgment of 4 April 2018, No 407292 (FR:CECHR:2018:407292.20180404, paragraph 6), annexed to the written observations of A and of Daniel B and Others.
24      Judgment of 11 December 2003 (C‑322/01, EU:C:2003:664, paragraph 144).
25      As the Commission takes the view that national legislation governing physical advertising for the website of a dispensing pharmacy comes within the scope of Directives 2000/31 and 2001/83, it examines only in the alternative such legislation in the light of Article 34 TFEU.
26      See, inter alia, judgments of 8 June 2017, Medisanus (C‑296/15, EU:C:2017:431, paragraph 53), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 60).
27      See, inter alia, judgments of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraph 35); of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 43), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 58).
28      Judgment of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraphs 33 and 34).
29      See judgment of 25 March 2004, Karner (C‑71/02, EU:C:2004:181, paragraph 35).
30      See judgment of 25 March 2004, Karner (C‑71/02, EU:C:2004:181, paragraph 47).
31      Judgments of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 65 et seq.), and of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraphs 44 to 46).
32      Judgment of 8 March 2001 (C‑405/98, EU:C:2001:135).
33      Judgment of 8 March 2001 (C‑405/98, EU:C:2001:135, paragraphs 13 to 42).
34      Judgment of 9 July 1997 (C‑34/95 to C‑36/95, EU:C:1997:344, paragraphs 39 to 54).
35      Judgment of 28 October 1999 (C‑6/98, EU:C:1999:532, paragraphs 45 to 52).
36      Thus, the judgments of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344), and of 28 October 1999, ARD (C‑6/98, EU:C:1999:532), concerned the provision of services relating to the broadcasting of television advertising by bodies established in one Member State for the benefit of advertisers established in another Member State. The judgment of 8 March 2001, Gourmet International Products (C‑405/98, EU:C:2001:135), concerned the right of press undertakings established in the territory of one Member State to offer advertising space in their publications to potential advertisers established in other Member States.
37      Judgment of 11 July 1974 (8/74, EU:C:1974:82, paragraph 5). See also, inter alia, judgment of 3 July 2019, Delfarma (C‑387/18, EU:C:2019:556, paragraph 20 and the case-law cited).
38      Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16). See also, inter alia, judgments of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 51); of 12 November 2015, Visnapuu (C‑198/14, EU:C:2015:751, paragraph 103), and of 21 September 2016, Etablissements Fr. Colruyt (C‑221/15, EU:C:2016:704, paragraph 35).
39      See judgments of 15 December 1993, Hünermund and Others (C‑292/92, EU:C:1993:932, paragraph 22); of 9 February 1995, Leclerc-Siplec (C‑412/93, EU:C:1995:26, paragraph 22); of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraph 39); of 28 October 1999, ARD (C‑6/98, EU:C:1999:532, paragraph 46); of 8 March 2001, Gourmet International Products (C‑405/98, EU:C:2001:135, paragraphs 19 and 20), and of 25 March 2004, Karner (C‑71/02, EU:C:2004:181, paragraph 39).
40      See judgments of 15 December 1993, Hünermund and Others (C‑292/92, EU:C:1993:932, paragraph 22); of 9 February 1995, Leclerc-Siplec (C‑412/93, EU:C:1995:26, paragraph 24), and of 25 March 2004, Karner (C‑71/02, EU:C:2004:181, paragraph 42).
41      Judgment of 15 December 1993, Hünermund and Others (C‑292/92, EU:C:1993:932, paragraphs 22 to 24).
42      See, also, Opinion of Advocate General Jacobs in Leclerc-Siplec (C‑412/93, EU:C:1994:393, points 19 to 22); Opinion of Advocate General Jacobs in Joined Cases De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1996:333, point 99), and, by analogy, judgment of 5 April 2011, Société fiduciaire nationale d’expertise comptable (C‑119/09, EU:C:2011:208, paragraph 43).
43      See judgments of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 74), and, by analogy, of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 54).
44      Judgment of 8 March 2001 (C‑405/98, EU:C:2001:135, paragraph 21).
45      I also note that, in the judgment of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraph 44), the Court held that an outright ban on advertising aimed at children under the age of 12 and on misleading advertising could constitute an obstacle covered by Article 34 TFEU provided that it is shown that the ban does not affect in the same way, in fact and in law, the marketing of national products and that of products from other Member States. The Court entrusted to the national court the task of carrying out that verification.
46      Judgment of 25 March 2004 (C‑71/02, EU:C:2004:181, paragraph 42). See, also, to that effect, judgment of 28 October 1999, ARD (C‑6/98, EU:C:1999:532, paragraph 48).
47      Directive of the European Parliament and of the Council of 12 December 2006 (OJ 2006 L 376, p. 36).
48      See judgment of 5 April 2011, Société fiduciaire nationale d’expertise comptable (C‑119/09, EU:C:2011:208, paragraph 29).
49      A refers to Opinion No 19‑A‑08 of the Competition Authority (France) of 4 April 2019 concerning the sectors of medicinal product distribution in urban areas and of private medical biology. That authority argues therein that the vagueness of the concepts of ‘soliciting clients’ and of ‘dignity of the profession of pharmacist’ had led the professional supervisory authorities to sanction any type of online advertising, whether it relates to the pharmacy, the products sold or the services offered.
50      Daniel B and Others refer to Article R. 5125‑26 of the Public Health Code, which provides: ‘Advertising for pharmacies is permitted only under the conditions and subject to the reservations set out below:
(1)      The creation, transfer or change of ownership of a pharmacy, as well as the creation of a pharmacy website, may give rise to an announcement in the printed press limited to an indication of the pharmacist’s name and his academic, hospital and scientific qualifications …, the address of the pharmacy website, the name of any predecessor, the address of the pharmacy with, where applicable, a reference to activities related to trade in the goods set out in the list referred to in the first paragraph of Article L. 5125‑24. That announcement shall be communicated in advance to the conseil régional de l’Ordre des pharmaciens (Regional Council of the Order of Pharmacists). It shall not exceed the size of 100 [cm2].
(2)      In addition to the sources of information concerning the pharmacy referred to in Article R. 4235‑57, pharmacies may publish in the printed press announcements of the activities referred to in paragraph 1 above of a maximum size of 100 [cm2], including their name and address as well as their telephone and fax numbers and the opening hours of the pharmacies.’
51      See, inter alia, judgment of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraph 45).
52      See, by analogy, with regard to the freedom to provide services, judgments of 5 April 2011, Société fiduciaire nationale d’expertise comptable (C‑119/09, EU:C:2011:208, paragraph 30); of 12 September 2013, Konstantinides (C‑475/11, EU:C:2013:542, paragraph 57), and of 4 May 2017, Vanderborght (C‑339/15, EU:C:2017:335, paragraph 68).
53      Judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 33).
54      See, inter alia, judgments of 13 July 2004, Bacardi France (C‑429/02, EU:C:2004:432, paragraph 33); of 18 June 2019, Austria v Germany (C‑591/17, EU:C:2019:504, paragraph 122), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 69).
55      See judgments of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 56), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 70 and the case-law cited).
56      See, inter alia, judgments of 19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 19); of 27 October 2016, Audace and Others (C‑114/15, EU:C:2016:813, paragraph 70), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 71). See, also, recital 22 of Directive 2011/62.
57      See, inter alia, judgments of 19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 31), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 73). See, also, recital 22 of Directive 2011/62.
58      See, inter alia, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 32).
59      Judgment of 4 May 2017 (C‑339/15, EU:C:2017:335, paragraph 69).
60      The Court has also held, in its judgments of 2 April 2009, Damgaard (C‑421/07, EU:C:2009:222, paragraph 22), and of 5 May 2011, Novo Nordisk (C‑249/09, EU:C:2011:272, paragraph 32), that advertising of medicinal products is liable to harm public health.
61      Drawn up on 14 June 2001 under the aegis of the Pharmaceutical Group of the European Union (PGEU). See, in that regard, First Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 21 November 2011 on the application of Directive [2000/31], COM(2003) 702 final, p. 12.
62      In Article 8(2) of Directive 2000/31, the legislature called for the adoption of codes of conduct at EU level for the regulated professions.
63      See point 88 of this Opinion.
64      Judgment of 4 May 2017 (C‑339/15, EU:C:2017:335, paragraph 72). See, also, order of 23 October 2018, Conseil départemental de l’ordre des chirurgiens-dentistes de la Haute-Garonne (C‑296/18, not published, EU:C:2018:857, paragraph 18).
65      See point 80 of this Opinion.
66      It is also common ground that the website of a pharmacy established in another Member State may still benefit from natural (non-paid) search engine referencing services (see point 136 of this Opinion).
67      See, to that effect, judgment of the Conseil d’État (Council of State) of 4 April 2018, No 407292 (FR:CECHR:2018:407292.20180404, paragraph 8).
68      I also note that Article 8(1) of Directive 2000/31 has partially harmonised the use by members of a regulated profession of commercial communications which are part of, or constitute, an information society service (see point 108 of this Opinion).
69      The concept of ‘coordinated field’, as defined in Article 2(h) of Directive 2000/31, differs, in this regard, from the concept of ‘rule on services’ within the meaning of Article 1(1)(e) of Directive 2015/1535. The latter concept covers only requirements of a general nature relating to the taking-up and pursuit of information society service activities, excluding any rules which are not specifically aimed at those services. See, in this regard, footnote 81 to this Opinion.
70      The concept of ‘regulated profession’ is defined in Article 2(g) of Directive 2000/31.
71      Those aspects cover, in addition to commercial communications (Articles 6 to 8), establishment and information requirements (Articles 4 and 5), contracts concluded by electronic means (Articles 9 to 11) and the liability of intermediary service providers (Articles 12 to 15).
72      In that regard, it follows from the judgment of 4 May 2017, Vanderborght (C‑339/15, EU:C:2017:335, paragraph 49), that Article 8(1) of Directive 2000/31 precludes a Member State from prohibiting any form of electronic commercial communications relating to the provision of healthcare services, including provision by means of a website created by the provider. Member States may, by contrast, supervise, closely if necessary, the form and manner of online commercial communications. See also order of 23 October 2018, Conseil départemental de l’ordre des chirurgiens-dentistes de la Haute-Garonne (C‑296/18, not published, EU:C:2018:857).
73      Moreover, as I have already stressed in points 50 to 54 of this Opinion, the provisions of Titles VIII and VIIIa of Directive 2001/83 do not apply to advertising which concerns, not medicinal products, but the services offered by a particular pharmacy.
74      See Article 3(3) of Directive 2000/31.
75      Article 85c(1) of Directive 2001/83, in so far as it refers expressly to Directive 2000/31, is, moreover, based on the premiss that that directive applies to services relating to the online sale of medicinal products.
76      See point 56 of this Opinion.
77      Judgment of 19 December 2019 (C‑390/18, EU:C:2019:1112, paragraph 81 et seq.).
78      See, inter alia, judgment of 12 November 2015, Visnapuu (C‑198/14, EU:C:2015:751, paragraph 40 and the case-law cited).
79      Article 3(4)(b) of Directive 2000/31 states that this is the case ‘without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation’. Read in the light of recital 26 of Directive 2000/31, that phrase appears to mean that the application of national rules on criminal law and criminal proceedings with a view to taking all investigative and other measures necessary for the detection and prosecution of criminal offences, in so far as they hinder the free movement of an information society service, need not be notified under Article 3(4)(b) of that directive. I would also point out that, under Article 3(5) of that directive, that notification requirement may be derogated from in the case of urgency.
80      The fact that Article R. 4235‑64 of the Public Health Code does not refer specifically to online sales services does not release the French Republic from its notification obligation under Article 3(4)(b) of Directive 2000/31. The coordinated field within the meaning of Article 2(h) of that directive covers all requirements relating to the taking-up or pursuit of information society services, whether they apply generally or solely to those services. The scope of the obligation to notify restrictive measures laid down in Article 3(4)(b) of Directive 2000/31 differs, in that respect, from the scope of the obligation to notify draft technical regulations laid down in Article 5(1) of Directive 2015/1535. As is clear from Article 1(1)(e) of Directive 2015/1535, the ‘rules on services’ which must be notified include any requirement of a general nature relating to the taking-up and pursuit of information society service activities, excluding any rules which are not specifically aimed at those services. While a requirement of a general nature relating to the taking-up or pursuit of services which include, but are not limited to, information society services does not have to be notified under Article 5(1) of Directive 2015/1535, the intention of the Member State in question to apply that requirement, on a case-by-case basis, in respect of a given service must be notified under Article 3(4)(b) of Directive 2000/31. That line of argument also applies to Article R. 4235‑22 of the Public Health Code.
81      See Commission, TRIS database, https://ec.europa.eu/growth/tools-databases/tris/en/search/?trisaction=search.detail&year= 2016&num= 410. and https://ec.europa.eu/growth/tools-databases/tris/en/search/?trisaction=search.detail&year= 2016&num= 411.
82      Pursuant to the fifth subparagraph of Article 5(1) of Directive 2015/1535, the Commission, after receiving notification of a draft technical regulation from a Member State, is required immediately to notify the other Member States of it.
83      Judgment of 19 December 2019 (C‑390/18, EU:C:2019:1112, paragraphs 96 and 97).
84      In practice, Article 3(4)(b) of Directive 2000/31 therefore has the effect of preventing an individual from relying before the courts of a Member State on the failure by an information society service provider established in another Member State to comply with the requirements – in particular those governing professional conduct – in force in the first Member State, unless a national authority of that Member State has first fulfilled the procedural obligations laid down by that provision.
85      See judgment of 19 December 2019, Airbnb Ireland (C‑390/18, EU:C:2019:1112, paragraph 99).
86      See, inter alia, judgments of 19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 28), and of 19 October 2016, Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:776, paragraph 31).
87      See point 86 of this Opinion.
88      See judgments of 19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 30), and of 18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 72 and the case-law cited). See, also, to that effect, judgment of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 57).
89      This approach reflects the precautionary principle guaranteed in Article 191(2) TFEU. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because the results of studies conducted are inconclusive, but the likelihood of real harm to public health persists should the risk materialise, that principle justifies the adoption of restrictive measures. See, inter alia, judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 43 and the case-law cited).
90      See Opinion of Advocate General Bot in Scotch Whisky Association and Others (C‑333/14, EU:C:2015:527, point 84). See also, in that regard, López Artetxe, S., ‘Is Health Really the First Thing in Life?’, Legal Issues of Economic Integration (2017), pp. 315 to 321, and Dunne, N., ‘Minimum Alcohol Pricing: Balancing the “Essentially Incomparable” in Scotch Whisky’, The Modern Law Review (2018), pp. 901 and 902.
91      See judgments of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 54), and of 19 October 2016, Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:776, paragraph 35).
92      See judgment of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 63).
93      Judgment of 19 October 2016, Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:776, paragraph 24).
94      See points 95 to 97 of this Opinion.
95      The Court has already classified a prohibition on selling contact lenses via the internet as a restriction within the meaning of that provision (see judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 76)). That classification also applies, in my view, to provisions which, while not totally prohibiting such a sale, place certain restrictions on it.
96      See judgment of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 106).
97      See, to that effect, judgment of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 114).
98      Judgment of 26 March 2018 (No 407289, FR:CECHR:2018:407289:20180326).
99      Daniel B and Others have pointed out in this regard that Article R. 4235‑61 of the Public Health Code provides that ‘when the interests of the patient’s health appear to require it, the pharmacist must refuse to dispense a medicinal product’.
100      Judgment of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 114).