Case C-322/01: Reference for a preliminary ruling by the Landgericht Frankfurt am Main by order of that court of 10 August 2001 in the case of Deutscher Apothekerverband e.V. against DocMorris NV and Jacques Waterval
Date: 2001-12-08
Institutions: Court of Justice
Subjects: distance selling, exclusive distribution agreement, free movement of goods, interpretation of the law, medicinal product, pharmacology

C 348/10

EN

Official Journal of the European Communities

8.12.2001

1. Declares that, by not adopting, within the prescribed period,
the laws, regulations and administrative provisions necessary to
comply fully with Council Directive 96/48/EC of 23 July 1996
on the interoperability of the trans-European high-speed rail
system, the Hellenic Republic has failed to fulfil its obligations
under that Directive.

(c) Are questions 1, 1(a) and 1(b)

to be assessed
differently in the light of Articles 28 and 30 EC if
the imported medicines in question are medicines
authorised in the importing State, which a pharmacy
in an EU Member State previously obtained from
wholesalers in the importing State?

2. Orders the Hellenic Republic to pay the costs.

2.

(1) OJ C 45 of 10.2.2001.

Is it compatible with Articles 28 and 30 EC for a national
prohibition on advertising medicines by mail order,
prescription medicines and medicines available only
through pharmacies that are authorised in the State of
origin but not the importing State to be interpreted so
broadly that the Internet presentation of a pharmacy of
an EU Member State, which in addition to presentation
of its business describes individual medicines with their
product name, prescription status, package size and price
and at the same time offers the possibility of ordering
those medicines by means of an on-line order form, is
classified as prohibited advertising, with the result that
cross-border orders of medicines by internet including
the very least made
delivery of
substantially more difficult?

those orders is at

(a) Having

regard to Article 1(3) of Directive
2000/31/EC (1) of 8 June 2000 (‘Directive on elec-
tronic commerce’), do Articles 28 and 30 EC require
the Internet presentation of a pharmacy of an EU
Member State, as described above, or parts of that
presentation, to be excluded from the definition of
advertising to the general public for the purposes
of Articles 1(3) and 3(1) of Council Directive
1992/28/EEC (2), of 31 March 1992 on the advertis-
ing of medicinal products for human use, in order
to make it practically possible to offer certain
information society services?

(b) Can any restriction of the definition of advertising
that may be required under Articles 28 and 30 EC
be justified by the consideration that on-line order
forms containing only the minimum information
necessary for placing an order, and/or other parts of
the Internet presentation of a pharmacy of an EU
Member State, are comparable with trade catalogues
and/or price lists within the meaning of Article 1(4)
of Directive 92/28/EEC?

3.

If some aspects of the Internet presentation of a pharmacy
of an EU Member State infringe provisions concerning
the advertising of medicines, is it to be inferred from
Articles 28 and 30 EC that cross-border trade in medicines
which does take place with the help of such a presentation
must be regarded as legally permissible despite the
prohibited advertising,
in order more effectively to
implement the principle of the free movement of goods
across borders?

(1) OJ L 178, 17.7.2000, p. 1.
(2) OJ L 113, 30.4.1992, p. 13.

Reference for a preliminary ruling by the Landgericht
Frankfurt am Main by order of that court of 10 August
2001 in the case of Deutscher Apothekerverband e.V.
against DocMorris NV and Jacques Waterval

(Case C-322/01)

(2001/C 348/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Frankfurt
am Main (Regional Court, Frankfurt am Main) of 10 August
2001, received at the Court Registry on 21 August 2001, for
a preliminary ruling in the case of Deutscher Apothekerver-
band e.V. v Doc Morris NV and Jacques Waterval on the
following questions:

1. Are the principles of the free movement of goods under
Article 28 et seq. of the Treaty infringed by national
legislation which prohibits human medicines, which are
required to be handled only through pharmacies, from
being imported commercially from other EU Member
States in mail-order business through authorised phar-
macies on the basis of
individual orders placed by
consumers over the Internet?

(a) Does such a national prohibition constitute a
measure having equivalent effect to a quantitative
restriction on imports within the meaning of
Article 28 of the EC Treaty?

(b)

If it does,
is Article 30 EC to be interpreted as
meaning that a national prohibition designed to
protect the health and life of humans is justified if,
before prescription medicines are sent out, a doctor’s
original prescription must have been produced to
the pharmacy sending out the medicines? In such a
situation, what requirements should be placed on
that pharmacy as regards control of the order,
packaging and receipt?