Case C-374/05: Judgment of the Court (Second Chamber) of 8 November 2007 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb eV (Directives 2001/83/EC and 92/28/EEC — National legislation prohibiting advertising of medicinal products by way of statements of third parties or prize draws — Use of generally positive results of a consumer survey and a monthly prize draw to win a pack of the product)
Date: 2007-12-22
Institutions: Court of Justice
Subjects: advertising, advertising malpractice, interpretation of the law, legal code, medicinal product, pharmaceutical legislation

22.12.2007

EN

Official Journal of the European Union

C 315/7

2) Dismisses the remainder of the action;

lotteries — Use of generally positive results of a customer
survey and a monthly prize draw to win a pack of the product

3) Orders Ireland to pay two thirds of all the costs. The Commission
of the European Communities is ordered to pay the other third.

(1) OJ C 205, 20.8.2005.

Operative part of the judgment

1. Directive 2001/83/EC of

the European Parliament and of

the
Council of 6 November 2001 on the Community code relating to
for human use, as amended by Directive
medicinal products
2004/27/EC of the European Parliament and of the Council of
31 March 2004, brought about complete harmonisation in the
field of advertising of medicinal products and lists expressly the
cases in which Member States are authorised to adopt provisions
departing from the rules laid down by that directive. The directive
must therefore be interpreted to the effect that a Member State may
not provide, in its national legislation, for an absolute and uncondi-
tional prohibition, in the advertising of medicinal products to the
general public, on the use of statements from third parties, whilst
their use can be limited, under that same directive, only by reason
of their specific content or the type of person making the statement.

(a) Directive 2001/83, as amended by Directive 2004/27,
requires Member States to provide, in their national legislation,
for a prohibition on the use, in the advertising of medicinal
products to the general public, of statements from third parties
where those refer, in improper, alarming or misleading terms,
to claims of recovery within the meaning of Article 90(j) of
Directive 2001/83, as amended by Directive 2004/27,
the term ‘claims of recovery’ having thus to be interpreted
as not including references to the reinforcement of a person's
the medicinal
well-being where the therapeutic efficacy of
product in terms of the elimination of a particular illness is not
referred to. Article 90(c) of Directive 2001/83, as amended by
Directive 2004/27, also requires Member States to provide, in
their national legislation, for a prohibition on the use, in the
advertising of medicinal products to the general public, of state-
ments from third parties where they give the impression that
the use of the medicinal product contributes to the reinforce-
ment of general well-being.

(b) Articles 87(3), 88(6) and 96(1) of Directive 2001/83, as
amended by Directive 2004/27, prohibit the advertising of a
medicinal product by means of a prize draw announced on the
internet, inasmuch as it encourages the irrational use of that
medicinal product and leads to its direct distribution to the
general public and to the presentation of free samples.

3. The first and second questions submitted for a preliminary ruling
would be answered in the same way if the provisions of Council
Directive 92/28/EEC of 31 March 1992 on the advertising of
medicinal products for human use applied.

(1) OJ C 315, 10.12.2005.

Judgment of the Court (Second Chamber) of 8 November
a preliminary ruling from the
for
2007 (reference
Bundesgerichtshof
(Germany)) — Gintec International
Import-Export GmbH v Verband Sozialer Wettbewerb eV

(Case C-374/05) (1)

(Directives 2001/83/EC and 92/28/EEC — National legisla-
tion prohibiting advertising of medicinal products by way of
statements of third parties or prize draws — Use of generally
positive results of a consumer survey and a monthly prize
draw to win a pack of the product)

2.

(2007/C 315/11)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Gintec International Import-Export GmbH

Defendant: Verband Sozialer Wettbewerb eV

Re:

Reference for a preliminary ruling — Bundesgerichtshof —
and 90(j) of Directive
Interpretation of Articles 87(3)
2001/83/EC of the European Parliament and of the Council of
6 November 2001 on the Community code relating to medic-
inal products for human use (OJ 2001 L 311, p. 67), as
amended by Directive 2004/27/EC of the European Parliament
and of
the Council of 31 March 2004 amending Directive
2001/83/EC on the Community code relating to medicinal
products
for human use (OJ 2004 L 136, p. 34), and
Articles 2(3) and 5(j) 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) — National
legislation
prohibiting advertising for medicinal products by way of state-
ments of third parties having no specialist knowledge or by