Deutsche Parkinson Vereinigung eV v Zentrale zur Bekämpfung unlauteren Wettbewerbs eV.
Date: 2016-10-19
20


As a preliminary matter, it should be pointed out that the free movement of goods is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect (judgment of 5 June 2007, Rosengren and Others, C‑170/04, EU:C:2007:313, paragraph 31).
22


In that regard, it must be borne in mind that the Court has consistently held that the prohibition, laid down in Article 34 TFEU, of measures having equivalent effect to quantitative restrictions covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, imports between Member States (see judgment of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 28 and the case-law cited).
23


The Court has also held, in relation to a prohibition under German law of mail-order sales of medicinal products the sale of which is, in the Member State concerned, restricted to pharmacies, that such a prohibition is more of an obstacle to pharmacies outside Germany than to those within Germany. Although there is little doubt that, as a result of the prohibition, pharmacies in Germany cannot use an extra or alternative method of gaining access to the German market consisting of end consumers of medicinal products, they are nonetheless able to sell the products in their dispensaries. By contrast, for pharmacies not established in Germany, the internet provides a more significant way by which to gain direct access to the German market. A prohibition which has a greater impact on pharmacies established outside German territory could impede access to the market for products from other Member States more than it impedes access for domestic products, and therefore constitutes a measure having equivalent effect to a quantitative restriction within the meaning of Article 34 TFEU (see, to that effect, judgment of 11 December 2003, Deutscher Apothekerverband, C‑322/01, EU:C:2003:664, paragraphs 74 to 76).
29


As a preliminary matter, it is appropriate to recall the settled case-law of the Court according to which Article 36 TFEU, as an exception to the rule of the free movement of goods within the European Union, must be strictly interpreted (see, to that effect, judgments of 10 January 1985, Association des Centres distributeurs Leclerc and Thouars Distribution, 229/83, EU:C:1985:1, paragraph 30; of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 50, and of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraph 38).
30


As regards a national measure coming within the field of public health, the Court has on numerous occasions held that the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since that level may vary from one Member State to another, Member States should be allowed a measure of discretion (see judgment of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 118 and the case-law cited).
31


In particular, the need to ensure that the country has reliable supplies for essential medical purposes may, so far as Article 36 TFEU is concerned, justify a barrier to trade between Member States if that objective is one of protecting the health and life of humans (see judgment of 28 March 1995, Evans Medical and Macfarlan Smith, C‑324/93, EU:C:1995:84, paragraph 37).
34


Although the objective of ensuring a safe and high-quality supply of medicinal products throughout a Member State comes, in principle, within the ambit of Article 36 TFEU, the fact remains that legislation which is capable of restricting a fundamental freedom guaranteed by the Treaty, such as the free movement of goods, can be properly justified only if it is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, to that effect, judgments of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraph 34, and of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 33).
35


As the Court has previously held, it is, in each case, for the national authorities to provide the necessary evidence to that effect. The reasons which may be invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State, and by specific evidence substantiating its arguments (see, to that effect, judgment of 23 December 2015, The Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 54 and the case-law cited).
36


It follows that, where a national court examines national legislation in the light of the justification relating to protection of the health and life of humans under Article 36 TFEU, that court must examine objectively, through statistical or ad hoc data or by other means, whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods (see, to that effect, judgment of 23 December 2015, The Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 59).
42


As regards the argument put forward by the ZBUW and the German Government that a patient in poor health ought not to be required to carry out a market analysis in order to determine which pharmacy offers the medicinal product sought at the most attractive price, it should be noted that the existence of a genuine risk to human health must be measured, not according to the yardstick of general conjecture, but on the basis of relevant scientific research (see, to that effect, judgment of14 July 1994, van der Veldt, C‑17/93, EU:C:1994:299, paragraph 17). Such general conjecture made in that regard does not in any way suffice to prove that the possibility for the consumer to seek to acquire prescription-only medicinal products at lower prices poses an actual risk to public health.
43


Moreover, the Court notes, as did DPV and the Netherlands Government, that, in the present case, price competition could be capable of benefiting the patient in so far as it would allow, where relevant, for prescription-only medicinal products to be offered in Germany at more attractive prices than those currently imposed by that Member State. As the Court has previously held, the effective protection of health and life of humans demands, inter alia, that medicinal products be sold at reasonable prices (see judgment of 20 May 1976, de Peijper, 104/75, EU:C:1976:67, paragraph 25).