CELEX: C2004/047/08
Language: en
Date: 2004-02-21 00:00:00
Title: 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)

21.2.2004                 EN                              Official Journal of the European Union                                                 C 47/5
for a preliminary ruling in the proceedings pending before that                                    JUDGMENT OF THE COURT
court between Debra Allonby and Accrington & Rossendale
College, Education Lecturing Services, trading as Protocol                                              of 11 December 2003
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,                            in Case C-322/01 (Reference for a preliminary ruling
President, P. Jann, C.W.A. Timmermans, C. Gulmann and                             from the Landgericht Frankfurt am Main): Deutscher
J.N. Cunha Rodrigues (Presidents of Chambers), A. La Pergola,                     Apothekerverband eV v 0800 DocMorris NV, Jacques
J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric (Rappor-                                               Waterval (1)
teur) and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given                 (Articles 28 EC and 30 EC — Directives 92/28/EEC and
a judgment on 13 January 2004, in which it has ruled:                             2000/31/EC — National legislation restricting internet
                                                                                  sales of medicinal products for human use by pharmacies
                                                                                  established in another Member State — Doctor’s prescription
1.     In circumstances such as those of the main proceedings,                    required for supply — Prohibition on advertising the sale of
       Article 141(1) EC must be interpreted as meaning that a                                    medicinal products by mail order)
       woman whose contract of employment with an undertaking has
       not been renewed and who is immediately made available to                                            (2004/C 47/08)
       her previous employer through another undertaking to provide
       the same services is not entitled to rely, vis-à-vis the intermediary
                                                                                                     (Language of the case: German)
       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                (Provisional translation; the definitive translation will be published
       employer.                                                                                     in the European Court Reports)
2.     Article 141(1) EC must be interpreted as meaning that a
       woman in circumstances such as those of the main proceedings               In Case C-322/01: Reference to the Court under Article 234
       is not entitled to rely on the principle of equal pay in order to          EC by the Landgericht Frankfurt am Main (Germany) for a
       secure entitlement to membership of an occupational pension                preliminary ruling in the proceedings pending before that
       scheme for teachers set up by State legislation of which only              court between Deutscher Apothekerverband eV and 0800
       teachers with a contract of employment may become members,                 DocMorris NV, Jacques Waterval, on the interpretation of
       using as a basis for comparison the remuneration, including                Articles 28 EC and 30 EC and of Article 1(3) and (4) and
       such a right of membership, received for equal work or work of             Articles 2 and 3 of Council Directive 92/28/EEC of 31 March
       the same value by a man employed by the woman’s previous                   1992 on the advertising of medicinal products for human use
       employer.                                                                  (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,
3.     In the absence of any objective justification, the requirement,            in particular electronic commerce, in the internal market (‘the
       imposed by State legislation, of being employed under a contract           Directive on electronic commerce’) (OJ 2000 L 178, p. 1),
       of employment as a precondition for membership of a pension                the Court, composed of: V. Skouris, President, P. Jann,
       scheme for teachers is not applicable where it is shown that,              C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
       among the teachers who are workers within the meaning of                   A. Rosas (Presidents of Chambers), D.A.O. Edward (Rappor-
       Article 141(1) EC and fulfil all the other conditions for                  teur), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken,
       membership, a much lower percentage of women than of men                   N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
       is able to fulfil that condition. The formal classification of a           General; H.A. Rühl, Principal Administrator, for the Registrar,
       self-employed person under national law does not change the                has given a judgment on 11 December 2003, in which it has
       fact that a person must be classified as a worker within the               ruled:
       meaning of that article if his independence is merely notional.
                                                                                  1.    a)   A national prohibition on the sale by mail order of
4.     Article 141(1) EC must be interpreted as meaning that where                           medicinal products the sale of which is restricted to
       State legislation is at issue, the applicability of that provision                    pharmacies in the Member State concerned, such as
       vis-à-vis an undertaking is not subject to the condition that the                     the prohibition laid down in Paragraph 43(1) of the
       worker concerned can be compared with a worker of the other                           Arzneimittelgesetz (Law on medicinal products) in the
       sex who is or has been employed by the same employer and who                          version of 7 September 1998, is a measure having an
       has received higher pay for equal work or work of equal value.                        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
(1) OJ C 289 of 13.10.2001.                                                                  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 subject to prescription. However,
                                                                                             Article 30 EC cannot be relied on to justify an absolute
 ---pagebreak--- C 47/6                   EN                          Official Journal of the European Union                                               21.2.2004
            prohibition on the sale by mail order of medicinal products      Heerlen, on the interpretation of Articles 48 and 52 of the EEC
            which are not subject to prescription in the Member State        Treaty (subsequently Articles 48 and 52 of the EC Treaty, now,
            concerned.                                                       after amendment, Articles 39 EC and 43 EC), Article 67 of the
                                                                             EEC Treaty (subsequently Article 67 of the EC Treaty, repealed
      (c)   Questions 1(a) and 1(b) do not need to be assessed               by the Treaty of Amsterdam), Articles 6 and 8a of the EC
            differently where medicinal products are imported into a         Treaty (now, after amendment, Articles 12 EC and 18 EC) and
            Member State in which they are authorised, having been           the provisions of Council Directive 90/364/EEC of 28 June
            previously obtained by a pharmacy in another Member              1990 on the right of residence (OJ 1990 L 180, p. 26) and
            State from a wholesaler in the importing Member State.           Council Directive 88/361/EEC of 24 June 1988 for the
                                                                             implementation of Article 67 of the Treaty (OJ 1988 L 178,
2.    Article 88(1) of Directive 2001/83/EC of the European                  p. 5), the Court (Fifth Chamber), composed of: P. Jann,
      Parliament and of the Council of 6 November 2001 on the                acting as the President of the Fifth Chamber, D.A.O. Edward
      Community code relating to medicinal products for human use            (Rapporteur) and A. La Pergola, Judges; J. Mischo, Advocate
      precludes a national prohibition on advertising the sale by mail       General; H.A. Rühl, Principal Administrator, for the Registrar,
      order of medicinal products which may be supplied only in              has given a judgment on 11 December 2003, in which it has
      pharmacies in the Member State concerned, such as the                  ruled:
      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         Community law precludes national legislation concerning the assess-
      subject to prescription.                                               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
(1) OJ C 348 of 8.12.2001.                                                   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-                                    JUDGMENT OF THE COURT
        en/Ondernemingen buitenland te Heerlen (1)
                                                                                                         (Fifth Chamber)
(Interpretation of Articles 48 and 52 of the EEC Treaty
(subsequently Articles 48 and 52 of the EC Treaty, now,
                                                                                                       of 7 January 2004
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                   in Case C-500/01: Commission of the European Communi-
the EC Treaty (now, after amendment, Articles 12 EC and                                           ties v Kingdom of Spain (1)
18 EC) — Directives 88/361/EEC and 90/364/EEC —
Inheritance tax — Requirement of cross-border economic
                                                                             (Failure of a Member State to fulfil its obligations — Market
activity — Prohibition of discrimination on the basis of
                                                                             for telecommunications services — Tariff rebalancing —
                    Member State of residence)
                                                                             Access to the local loop — Directive 90/388/EEC —
                                                                                                            Article 4(c))
                            (2004/C 47/09)
                     (Language of the case: Dutch)                                                        (2004/C 47/10)
(Provisional translation; the definitive translation will be published                            (Language of the case: Spanish)
                    in the European Court Reports)
                                                                             (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                     In Case C-500/01, Commission of the European Communities
de Belastingdienst Particulieren/Ondernemingen buitenland te                 (Agent: S. Rating) v Kingdom of Spain (Agent: S. Ortiz