62023CJ0517_RES
Case C‑517/23
Apothekerkammer Nordrhein
v
DocMorris NV
(Request for a preliminary ruling from the Bundesgerichtshof)
Judgment of the Court (Fifth Chamber) of 27 February 2025
(Reference for a preliminary ruling – Medicinal products for human use – Directive 2001/83/EC – Article 86(1) – Concept of ‘advertising of medicinal products’ – Article 87(3) – Advertising of prescription-only medicinal products – Advertising of a pharmacy’s entire range of medicinal products – Vouchers corresponding to a certain sum of money or a percentage reduction for the subsequent purchase of other products – Price reductions and payments with immediate effect – Free movement of goods – Article 34 TFEU – Freedom to provide services – Electronic commerce – Directive 2000/31/EC – Article 3(2) and (4)(a) – Restriction – Justification – Consumer protection)
Approximation of laws – Medicinal products for human use – Directive 2001/83 – Advertising – Definition – Advertising measures promoting the purchase of prescription-only medicinal products – Price reductions and payments with immediate effect – Not included – Vouchers corresponding to a certain sum of money or a percentage reduction for the subsequent purchase of non-prescription medicinal products – Included
(European Parliament and Council Directive 2001/83, as amended by Directive 2011/62, recitals 2 and 50 and Art. 86(1))
(see paragraphs 32-37, 39-46, 48-50, 81, operative part 1)
Approximation of laws – Electronic commerce – Directive 2000/31 – Provision of information society services – Online sale of medicinal products for human use, whether or not subject to compulsory medical prescription, intended for a Member State other than the Member State in which that service provider is established – National legislation prohibiting an advertising measure directed at customers of a pharmacy established in another Member State and consisting of a monetary reward of an indefinite amount – Restriction on the free movement of goods – Restriction on the freedom to provide information society services – Whether permissible – Whether justified – Consumer protection – Observance of the principle of proportionality
(Art. 34 TFEU; Parliament and Council Directives 2000/31, Arts 2(h) and 3(4)(a) and 2001/83, as amended by Directive 2011/62, Art. 85c(1))
(see paragraphs 55, 57-60, 62-68, 70-77, 80, 81, operative part 1)
Approximation of laws – Medicinal products for human use – Directive 2001/83 – Advertising – National legislation prohibiting advertising measures promoting the purchase of unspecified prescription-only medicinal products – Vouchers corresponding to a certain sum of money or a percentage reduction for the subsequent purchase of non-prescription medicinal products – Whether permissible
(European Parliament and Council Directive 2001/83, as amended by Directive 2011/62, recitals 2 and 45 and Arts 87(3) and 88(2))
(see paragraphs 83, 85-94, operative part 2)
Résumé
Hearing a request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany), the Court clarifies the concept of ‘advertising of medicinal products’, within the meaning of Directive 2001/83, (
1
) in the context of advertising measures offered by a pharmacy when its customers purchase prescription-only medicinal products.
DocMorris is a Netherlands mail-order pharmacy that supplies prescription and non-prescription medicines to customers in Germany. Since 2012, it has used various advertising measures to promote the purchase of prescription-only medicinal products forming part of its entire product range.
Taking the view that those advertising measures infringed the fixed-price system that applies to prescription-only medicinal products, Apothekerkammer Nordrhein (Professional Association of Pharmacists of the North Rhine region, Germany) obtained, in the years 2013 to 2015, provisional measures for the cessation of those advertising measures. The latter took the form, in essence, of price reductions and payments or vouchers for the subsequent purchase of non-prescription medicinal products or other health and care products.
After the annulment, in March 2017, of almost all of those interim measures, DocMorris brought an action for damages against the Professional Association of Pharmacists of the North Rhine region, on the ground that those measures, in the context of which high fines had been imposed on it, were unjustified. After it was dismissed by the first instance court, that action was upheld on appeal.
Hearing an action for judicial review of that judgment brought by the Professional Association of Pharmacists of the North Rhine region, the referring court asks whether the advertising measures, which concern the purchase of prescription-only medicinal products, forming part of a pharmacy’s entire range of products, come within the concept of ‘advertising of medicinal products’ within the meaning of Article 86(1) of Directive 2001/83 or whether, on the contrary, they are intended solely to influence the choice of pharmacy from which a customer purchases such medicinal products, that choice falling outside the scope of that directive. It also asks whether that directive precludes an interpretation of the relevant provisions of the national legislation on the advertising of medicinal products (
2
) to the effect that advertising measures promoting the purchase of prescription-only medicinal products in the form of price reductions and payments of an exact amount with immediate effect are authorised, whereas those giving rise to a reward of between EUR 2.50 and EUR 20 per medical prescription or taking the form of vouchers for the subsequent purchase of other products are prohibited.
Findings of the Court
In the first place, the Court clarifies the concept of ‘advertising of medicinal products’, within the meaning of Article 86(1) of Directive 2001/83, in the context of advertising measures that promote the purchase of prescription-only medicinal products.
In that regard, it highlights from the outset that it is the purpose of the message which determines whether or not an advertising measure comes within that concept. An advertising measure designed to promote the prescription, supply, sale or consumption of medicinal products thus comes within that concept. However, that is not the case where a measure seeks to influence not the customer’s choice of a given medicinal product but the choice, taken at a later stage, of the pharmacy from which that customer would purchase that medicinal product.
In the present case, in order to determine whether an advertising measure promoting the purchase of prescription-only medicinal products from a pharmacy’s entire product range falls within the concept of ‘advertising of medicinal products’, it is necessary to distinguish the measures according to whether the advertising message is limited to prescription-only medicinal products or whether that message also relates to non-prescription medicinal products.
As regards, on the one hand, the advertising measures taking the form of price reductions and payments of an exact amount with immediate effect, and the measure giving rise to a reward of between EUR 2.50 and EUR 20 per medical prescription (which must also be regarded as giving rise to a payment), the Court finds that the message of those advertising measures relates to unspecified prescription-only medicinal products, without concerning other types of medicinal products.
Thus, since the decision to prescribe such medicinal products is the sole responsibility of the doctor, who is required to carry out his or her functions objectively, (
3
) that message does not promote the prescription or consumption of unspecified prescription-only medicinal products. In so far as concerns the patient, when he or she receives a medical prescription, the only choice that remains to be made, with regard to the prescription-only medicinal product, is that of the pharmacy from which he or she will buy that medicinal product. Accordingly, the advertising measures in the form of price reductions and payments of an exact amount with immediate effect, and the measure giving rise to a reward of a certain amount per medical prescription do not come within the concept of ‘advertising of medicinal products’, within the meaning of Article 86(1) of Directive 2001/83, since they concern the choice of the pharmacy from which a patient purchases a prescription-only medicinal product.
As regards, on the other hand, advertising measures in the form of vouchers for the subsequent purchase of non-prescription medicinal products or other health and care products, the Court observes that these measures encourage the purchase of such medicinal products. In the absence of an obligation to have recourse to a prescribing doctor, the recipient of the vouchers, attracted by the economic advantage those vouchers offer, may use them to obtain non-prescription medicinal products at a reduced price. As a result, by promoting the consumption of such medicinal products, those advertising measures come within the concept of ‘advertising of medicinal products’ within the meaning of Article 86(1) of Directive 2001/83.
In the second place, in so far as an advertising measure giving rise to a reward of between EUR 2.50 and EUR 20, without it being possible to know the exact amount of that reward, does not come within the concept of ‘advertising of medicinal products’ and is prohibited by the national legislation at issue in the main proceedings, (
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) the Court examines the compatibility of that legislation with other provisions of EU law. More specifically, since it is not clear from the documents before the Court whether such an advertising measure is implemented solely by means of physical media or whether, by contrast, it is carried out both via the website of the pharmacy and by means of physical media, the Court assesses the compatibility of that national legislation with, first, Article 34 TFEU and, second, the relevant provisions of Directive 2000/31. (
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)
On the matter of the compatibility of the national legislation at issue in the main proceedings with Article 34 TFEU, the Court recalls that such legislation must be regarded as governing a selling arrangement, which can fall outside the scope of that provision of the TFEU if it satisfies the twofold condition that it applies to all relevant traders operating within the national territory and it affects in the same manner, in law and in fact, the marketing of domestic products and that of products from other Member States. (
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)
As regards the first of those conditions, the Court notes that the national legislation at issue in the main proceedings applies without distinction to all pharmacies which sell medicinal products on German territory, whether they are established in that territory or in another Member State. As regards the second condition, the Court observes that price competition is likely to be a more important parameter of competition for mail-order pharmacies than for traditional pharmacies and that an advertising measure giving rise to a reward of between EUR 2.50 and EUR 20 per medical prescription seeks to establish price competition with traditional pharmacies. Accordingly, the Court concludes that that national legislation which prohibits such an advertising measure has a greater impact on pharmacies established in a Member State other than the Federal Republic of Germany, which could impede market access for products from other Member States more than those from the Federal Republic of Germany, with the result that such a prohibition constitutes a measure having an equivalent effect to quantitative restrictions.
As regards the compatibility of the national legislation at issue in the main proceedings with the Directive on electronic commerce, the Court points out that, pursuant to Directive 2001/83, (
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) Member States are to ensure medicinal products are offered for sale at a distance to the public. However, this obligation is without prejudice to national legislation prohibiting the offer for sale at a distance of prescription medicinal products to the public by means of such services. Therefore, where the Member State of destination authorises such an offer, which appears to be the case here, that Member State may not, so far as relates to such services, restrict the free movement of information society services from another Member State. (
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) In the present case, the prohibition of an advertising measure such as the one imposed by the national regulation at issue in the main proceedings, is such as to restrict the possibility for a pharmacy established in another Member State to make itself known to potential customers in that first Member State and must, therefore, be regarded as a restriction on the freedom to provide information society services.
However, the Court states that the prohibition of the advertising measure provided for in the national legislation at issue in the main proceedings comes, subject to verification by the referring court, within the scope of consumer protection, which constitutes an overriding reason in the public interest capable of justifying an obstacle to the free movement of goods. First, as regards the objective of the protection of consumers, that legislation helps to avoid the risk of consumers overestimating the amount of the reward in question, a risk which may be significant for consumers who purchase highly priced medicinal products or who, suffering from a chronic disease, have to buy them regularly. Second, that legislation does not go beyond what is necessary to attain that objective, in so far as it prohibits the advertising measure in question, which establishes a range for the amount of the reward, without an average consumer, who is reasonably well informed and reasonably observant and circumspect, being able to calculate the exact amount of that reward.
Accordingly, the Court concludes that Article 34 TFEU and Article 3(4)(a) of the Directive on electronic commerce (
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) do not preclude national legislation which, in order to protect consumers, prohibits an advertising measure by which customers of a mail-order pharmacy are offered a reward of between EUR 2.50 and EUR 20 per medical prescription, without it being possible to know the exact amount of that reward.
In the third place, the Court rules that Article 87(3) of Directive 2001/83 does not preclude national legislation which prohibits advertising measures promoting the purchase of unspecified prescription-only medicinal products by offering vouchers corresponding to a certain sum of money or a percentage reduction for the subsequent purchase of other products, such as non-prescription medicinal products.
Those advertising measures, although directed at the purchase of prescription-only medicinal products, promote only the consumption of non-prescription medicinal products. Even though advertising of such medicinal products is permitted, (
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) Member States must prohibit, in order to prevent risks to public health, the inclusion, in advertising of such medicinal products directed at the general public, of material which is of such a nature as to promote the irrational use of such medicinal products.
In the present case, by using the vouchers in question, the consumer may obtain, at a reduced price, products from the entire range of products of the pharmacy concerned, and choose, for example, between buying non-prescription medicinal products and purchasing other consumer products, such as health and care products. The treatment, by the advertising measures in question, of non-prescription medicinal products in the same way as other consumer products offered by a pharmacy is liable to lead to the irrational and excessive use of non-prescription medicinal products since, first, it conceals the very particular nature of those medicinal products, the therapeutic effects of which distinguish them substantially from other goods and, second, it distracts the consumer from an objective evaluation of the need to take those medicinal products. As a result, a prohibition such as the one provided for by the national legislation at issue in the main proceedings meets the essential aim of safeguarding public health, inasmuch as it prevents the use of advertising material that encourages the irrational and excessive use of non-prescription medicinal products.
(
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)	Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 (OJ 2011 L 174, p. 74).
(
2
)	The first sentence of Paragraph 7(1) of the Gesetz über die Werbung auf dem Gebiete des Heilwesens (Heilmittelwerbegesetz) (Law on the advertising of medicinal products; ‘the national legislation at issue in the main proceedings’).
(
3
)	Pursuant to recital 50 of Directive 2001/83.
(
4
)	First sentence of Paragraph 7(1) of the national legislation at issue in the main proceedings.
(
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)	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 (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).
(
6
)	Judgment of 15 July 2021, DocMorris (C‑190/20, EU:C:2021:609, paragraphs 35, 37, 38).
(
7
)	Specifically, Article 85c(1) of Directive 2001/83.
(
8
)	Article 3(2) of the Directive on electronic commerce.
(
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)	Pursuant to Article 3(4)(a) of the Directive on electronic commerce, Member States may, under certain conditions, restrict the freedom to provide certain information society services from another Member State.
(
10
)	Article 88(2) of Directive 2001/83.