Judgment of the Court of 11 December 2003 in Case C-322/01 (Reference for a preliminary ruling from the Landgericht Frankfurt am Main): Deutscher Apothekerverband eV v 0800 DocMorris NV, Jacques Waterval (Articles 28 EC and 30 EC — Directives 92/28/EEC and 2000/31/EC — National legislation restricting internet sales of medicinal products for human use by pharmacies established in another Member State — Doctor's prescription required for supply — Prohibition on advertising the sale of medicinal products by mail order)
Date: 2004-02-21
Institutions: Court of Justice
Subjects: distance selling, exclusive distribution agreement, free movement of goods, interpretation of the law, medicinal product, pharmacology

21.2.2004

EN

Official Journal of the European Union

C 47/5

for a preliminary ruling in the proceedings pending before that
court between Debra Allonby and Accrington & Rossendale
College, Education Lecturing Services, trading as Protocol
Professional, formerly Education Lecturing Services Secretary
of State for Education and Employment, on the interpretation
of Article 141 EC,
the Court, composed of: V. Skouris,
President, P. Jann, C.W.A. Timmermans, C. Gulmann and
J.N. Cunha Rodrigues (Presidents of Chambers), A. La Pergola,
J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric (Rappor-
teur) and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 13 January 2004, in which it has ruled:

1.

In circumstances such as those of
the main proceedings,
Article 141(1) EC must be interpreted as meaning that a
woman whose contract of employment with an undertaking has
not been renewed and who is immediately made available to
her previous employer through another undertaking to provide
the same services is not entitled to rely, vis-à-vis the intermediary
undertaking, on the principle of equal pay, using as a basis for
comparison the remuneration received for equal work or work
of the same value by a man employed by the woman’s previous
employer.

2. Article 141(1) EC must be interpreted as meaning that a
woman in circumstances such as those of the main proceedings
is not entitled to rely on the principle of equal pay in order to
secure entitlement to membership of an occupational pension
scheme for teachers set up by State legislation of which only
teachers with a contract of employment may become members,
using as a basis for comparison the remuneration, including
such a right of membership, received for equal work or work of
the same value by a man employed by the woman’s previous
employer.

3.

In the absence of any objective justification, the requirement,
imposed by State legislation, of being employed under a contract
of employment as a precondition for membership of a pension
scheme for teachers is not applicable where it is shown that,
among the teachers who are workers within the meaning of
Article 141(1) EC and fulfil all the other conditions for
membership, a much lower percentage of women than of men
is able to fulfil that condition. The formal classification of a
self-employed person under national law does not change the
fact that a person must be classified as a worker within the
meaning of that article if his independence is merely notional.

4. Article 141(1) EC must be interpreted as meaning that where
State legislation is at issue, the applicability of that provision
vis-à-vis an undertaking is not subject to the condition that the
worker concerned can be compared with a worker of the other
sex who is or has been employed by the same employer and who
has received higher pay for equal work or work of equal value.

(1) OJ C 289 of 13.10.2001.

JUDGMENT OF THE COURT

of 11 December 2003

in Case C-322/01 (Reference for a preliminary ruling
from the Landgericht Frankfurt am Main): Deutscher
Apothekerverband eV v 0800 DocMorris NV, Jacques
Waterval (1)

(Articles 28 EC and 30 EC — Directives 92/28/EEC and
2000/31/EC — National
legislation restricting internet
sales of medicinal products for human use by pharmacies
established in another Member State — Doctor’s prescription
required for supply — Prohibition on advertising the sale of
medicinal products by mail order)

(2004/C 47/08)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-322/01: Reference to the Court under Article 234
EC by the Landgericht Frankfurt am Main (Germany) for a
preliminary ruling in the proceedings pending before that
court between Deutscher Apothekerverband eV and 0800
DocMorris NV, Jacques Waterval, on the interpretation of
Articles 28 EC and 30 EC and of Article 1(3) and (4) and
Articles 2 and 3 of Council Directive 92/28/EEC of 31 March
1992 on the advertising of medicinal products for human use
(OJ 1992 L 113, p. 13), in conjunction with 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’) (OJ 2000 L 178, p. 1),
the Court, composed of: V. Skouris, President, P.
Jann,
C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
A. Rosas (Presidents of Chambers), D.A.O. Edward (Rappor-
teur), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken,
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 11 December 2003, in which it has
ruled:

1.

a) A national prohibition on the sale by mail order of
medicinal products the sale of which is restricted to
pharmacies in the Member State concerned, such as
the prohibition laid down in Paragraph 43(1) of the
Arzneimittelgesetz (Law on medicinal products) in the
version of 7 September 1998, is a measure having an
effect equivalent
to a quantitative restriction for the
purposes of Article 28 EC.

(b) Article 30 EC may be relied on to justify a national
prohibition on the sale by mail order of medicinal products
which may be sold only in pharmacies in the Member
State concerned in so far as the prohibition covers
medicinal products
to prescription. However,
Article 30 EC cannot be relied on to justify an absolute

subject

C 47/6

EN

Official Journal of the European Union

21.2.2004

prohibition on the sale by mail order of medicinal products
which are not subject to prescription in the Member State
concerned.

(c) Questions 1(a) and 1(b) do not need to be assessed
differently where medicinal products are imported into a
Member State in which they are authorised, having been
previously obtained by a pharmacy in another Member
State from a wholesaler in the importing Member State.

2. Article 88(1) of 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
precludes a national prohibition on advertising the sale by mail
order of medicinal products which may be supplied only in
pharmacies in the Member State concerned, such as the
prohibition laid down in Paragraph 8(1) of the Heilmittelwer-
begesetz (Law on the advertising of medicinal products), in so
far as the prohibition covers medicinal products which are not
subject to prescription.

(1) OJ C 348 of 8.12.2001.

Heerlen, on the interpretation of Articles 48 and 52 of the EEC
Treaty (subsequently Articles 48 and 52 of the EC Treaty, now,
after amendment, Articles 39 EC and 43 EC), Article 67 of the
EEC Treaty (subsequently Article 67 of the EC Treaty, repealed
by the Treaty of Amsterdam), Articles 6 and 8a of the EC
Treaty (now, after amendment, Articles 12 EC and 18 EC) and
the provisions of Council Directive 90/364/EEC of 28 June
1990 on the right of residence (OJ 1990 L 180, p. 26) and
Council Directive 88/361/EEC of 24 June 1988 for the
implementation of Article 67 of the Treaty (OJ 1988 L 178,
p. 5), the Court
Jann,
acting as the President of the Fifth Chamber, D.A.O. Edward
(Rapporteur) and A. La Pergola, Judges; J. Mischo, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 11 December 2003, in which it has
ruled:

(Fifth Chamber), composed of: P.

Community law precludes national legislation concerning the assess-
ment of tax due on the inheritance of immovable property situated in
the Member State concerned according to which, in order to assess
the property’s value, the fact that the person holding legal title was
under an unconditional obligation to transfer it to another person
who has financial ownership of that property may be taken into
account if, at the time of his death, the former resided in that Member
State, but may not be taken into account if he resided in another
Member State.

JUDGMENT OF THE COURT

(1) OJ C 331 of 24.11.2001.

(Fifth Chamber)

of 11 December 2003

in Case C-364/01 (Reference for a preliminary ruling
from the Gerechtshof te ’s-Hertogenbosch): The heirs of
H. Barbier v Inspecteur van de Belastingdienst Particulier-
en/Ondernemingen buitenland te Heerlen (1)

(Interpretation of Articles 48 and 52 of the EEC Treaty
(subsequently Articles 48 and 52 of the EC Treaty, now,
after amendment, Articles 39 EC and 43 EC), Article 67 of
the EEC Treaty (subsequently Article 67 of the EC Treaty,
repealed by the Treaty of Amsterdam), Articles 6 and 8a of
the EC Treaty (now, after amendment, Articles 12 EC and
18 EC) — Directives 88/361/EEC and 90/364/EEC —
Inheritance tax — Requirement of cross-border economic
activity — Prohibition of discrimination on the basis of
Member State of residence)

(2004/C 47/09)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-364/01: Reference to the Court under Article 234
EC by the Gerechtshof te ’s-Hertogenbosch (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between the heirs of H. Barbier and Inspecteur van
de Belastingdienst Particulieren/Ondernemingen buitenland te

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-500/01: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Failure of a Member State to fulfil its obligations — Market
for telecommunications services — Tariff rebalancing —
loop — Directive 90/388/EEC —
Access to the local
Article 4(c))

(2004/C 47/10)

(Language of the case: Spanish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-500/01, Commission of the European Communities
(Agent: S. Rating) v Kingdom of Spain (Agent: S. Ortiz