CELEX: C2001/348/17
Language: en
Date: 2001-12-08 00:00:00
Title: 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

C 348/10               EN                     Official Journal of the European Communities                                     8.12.2001
1.   Declares that, by not adopting, within the prescribed period,            (c)    Are questions 1, 1(a) and 1(b) to be assessed
     the laws, regulations and administrative provisions necessary to                differently in the light of Articles 28 and 30 EC if
     comply fully with Council Directive 96/48/EC of 23 July 1996                    the imported medicines in question are medicines
     on the interoperability of the trans-European high-speed rail                   authorised in the importing State, which a pharmacy
     system, the Hellenic Republic has failed to fulfil its obligations              in an EU Member State previously obtained from
     under that Directive.                                                           wholesalers in the importing State?
2.   Orders the Hellenic Republic to pay the costs.                      2.   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
(1) OJ C 45 of 10.2.2001.                                                     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
Reference for a preliminary ruling by the Landgericht                         cross-border orders of medicines by internet including
Frankfurt am Main by order of that court of 10 August                         delivery of those orders is at the very least made
2001 in the case of Deutscher Apothekerverband e.V.                           substantially more difficult?
        against DocMorris NV and Jacques Waterval
                                                                              (a)    Having regard to Article 1(3) of Directive
                         (Case C-322/01)                                             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
                         (2001/C 348/17)                                             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
Reference has been made to the Court of Justice of the                               1992/28/EEC (2), of 31 March 1992 on the advertis-
European Communities by order of the Landgericht Frankfurt                           ing of medicinal products for human use, in order
am Main (Regional Court, Frankfurt am Main) of 10 August                             to make it practically possible to offer certain
2001, received at the Court Registry on 21 August 2001, for                          information society services?
a preliminary ruling in the case of Deutscher Apothekerver-
band e.V. v Doc Morris NV and Jacques Waterval on the                         (b) Can any restriction of the definition of advertising
following questions:                                                                 that may be required under Articles 28 and 30 EC
                                                                                     be justified by the consideration that on-line order
1.   Are the principles of the free movement of goods under                          forms containing only the minimum information
     Article 28 et seq. of the Treaty infringed by national                          necessary for placing an order, and/or other parts of
     legislation which prohibits human medicines, which are                          the Internet presentation of a pharmacy of an EU
     required to be handled only through pharmacies, from                            Member State, are comparable with trade catalogues
     being imported commercially from other EU Member                                and/or price lists within the meaning of Article 1(4)
     States in mail-order business through authorised phar-                          of Directive 92/28/EEC?
     macies on the basis of individual orders placed by
     consumers over the Internet?                                        3.   If some aspects of the Internet presentation of a pharmacy
                                                                              of an EU Member State infringe provisions concerning
     (a)   Does such a national prohibition constitute a                      the advertising of medicines, is it to be inferred from
           measure having equivalent effect to a quantitative                 Articles 28 and 30 EC that cross-border trade in medicines
           restriction on imports within the meaning of                       which does take place with the help of such a presentation
           Article 28 of the EC Treaty?                                       must be regarded as legally permissible despite the
                                                                              prohibited advertising, in order more effectively to
                                                                              implement the principle of the free movement of goods
     (b) If it does, is Article 30 EC to be interpreted as                    across borders?
           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              (1) OJ L 178, 17.7.2000, p. 1.
           the pharmacy sending out the medicines? In such a             (2) OJ L 113, 30.4.1992, p. 13.
           situation, what requirements should be placed on
           that pharmacy as regards control of the order,
           packaging and receipt?