Commission of the European Communities v Federal Republic of Germany.
Date: 1992-04-08
10 On the one hand, the Court has consistently held that, the health and life of humans rank foremost among the property or interests protected by Article 36 of the Treaty and it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure and in particular how strict the checks to be carried out are to be. On the other hand, Article 36 remains applicable where harmonization of national legislation in the field of the manufacture and marketing of proprietory medicinal products has not been fully achieved (judgments of 7 March 1989 in Case 215/87 Schumacher v Hauptzollamt Frankfurt am Main-Ost [1989] ECR 617, paragraph 15, and in Case C-347/89 Freistaat Bayern v Eurim-Pharm GmbH [1991] ECR I-1747, paragraph 26).
11 However, it follows from Article 36 that national rules or practices having, or likely to have, a restrictive effect on the importation of pharmaceutical products is compatible with the Treaty only to the extent that they are necessary for the effective protection of health and life of humans. National rules or practices cannot benefit from the derogation provided for in Article 36 if the health and life of humans can be protected just as effectively by measures which are less restrictive of intra-Community trade.
17 The Court has held, in its judgment in Schumacher, cited above, paragraph 20, that the purchase of a medicinal preparation in a pharmacy in another Member State provides a guarantee equivalent to that which would arise from sale of the preparation by a pharmacy in a Member State into which the medicinal preparation is imported by a private individual, and that that conclusion is all the more compelling inasmuch as the conditions for access to the profession of pharmacist and the conditions for exercise of that profession regulated in Council Directives 85/342 and 85/433, cited above.
18 Similarly, it must be held that, in the light of the harmonization achieved by Directives 75/362 and 72/363, as amended, with respect to the conditions for access to the medical profession and the conditions for the exercise of that profession, the prescription of a medicinal product by a doctor in another Member State must be regarded as providing a guarantee equivalent to that which would result from the prescription of a medicinal product by a doctor in the importing State.
23 The right to respect for private life and, as one of its aspects, the right to the protection of medical confidentiality constitute fundamental rights protected by the legal order of the Community (see judgment in Case 136/79 National Panasonic v Commission [1980] ECR 2033). As the Court held in its judgment in Case 260/89 Elleniki Radiophonia Tileorassi v Dimiotiki Etaivia Pliroforissis and Others [1991] ECR 2925, paragraph 43, where a Member State relies on the provisions of the Treaty in order to justify national rules which are likely to obstruct the exercise of a freedom guaranteed by the Treaty, such justification, provided for by Community law, is to be interpreted in the light of the general principles of law and in particular of fundamental rights. Those rights, however, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (judgment in Case 265/87 Hermann Schraeder HS Kraftfutter GmbH & Co KG v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15). Objectives which may justify such restrictions include the protection of public health and human life.