Judgment of the Court (Third Chamber) of 1 October 2020 (request for a preliminary ruling from the Cour d’appel de Paris — France) — A v Daniel B, UD, AFP, B, L

(Case C-649/18) (1)

(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 - Prohibition on discounts where the order exceeds certain amounts and the use of paid referencing - Obligation to require a patient to complete a health questionnaire prior to validation of his or her first order on a pharmacy’s website - 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 - Protection of the dignity of the profession of pharmacist - Prevention of the abusive consumption of medicinal products)

(2020/C 399/10)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicant: A

Defendants: Daniel B, UD, AFP, B, L

Operative part of the judgment

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’) must be interpreted as meaning that:

— it does not preclude the application, by the Member State of destination of an online sales service relating to medicinal products not subject to medical prescription, to the provider of that service established in another Member State, of national legislation which prohibits pharmacies from soliciting their clients through certain procedures and methods, in particular through the extensive sending of post and leaflets for advertising purposes outside their pharmacy, provided that it does not result in the provider in question being prevented from carrying out any advertising outside his or her pharmacy, regardless of the medium used or the scale thereof, which it is for the referring court to ascertain;

— it does not preclude the application, by the Member State of destination of an online sales service relating to medicinal products not subject to medical prescription, to the provider of that service established in another Member State, of national legislation which prohibits pharmacies from making promotional offers consisting in a discount on the total price of an order of medicinal products once a certain amount is exceeded, provided, however, that such a prohibition is sufficiently circumscribed and particularly targeted solely at medicinal products and not at mere para-pharmaceutical products, which it is for the national court to ascertain;

— it does not preclude the application, by the Member State of destination of an online sales service relating to medicinal products not subject to medical prescription, to the provider of that service established in another Member State, of national legislation which requires that pharmacies selling such medicinal products include a health questionnaire in the process of ordering medicinal products online;

— it precludes the application, by the Member State of destination of an online sales service relating to medicinal products not subject to medical prescription, to the provider of that service established in another Member State, of national legislation which prohibits pharmacies selling such medicinal products from using paid referencing on search engines and price comparison websites, unless it is duly established before the referring court that such legislation is appropriate to ensure the attainment of the objective of protecting public health and does not go beyond what is necessary in order to attain that objective.

(1) OJ C 4, 7.1.2019.