Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb eV.
Date: 2007-11-08
26. In Case C‑322/01 Deutscher Apothekerverband  [2003] ECR I‑14887, paragraph 144, the Court held that Article 88(1) of Directive 2001/83, which prohibits the advertising of medicinal products which are subject to medical prescription, precludes a national prohibition on advertising the sale by mail order of medicinal products which may be supplied only by pharmacists, in so far as that prohibition also covers medicinal products which are not subject to medical prescription. Thus, in the absence, in Article 88(1) of the directive, of express reference to the possibility of laying down more restrictive or simply different rules, the Court interpreted that provision as an exhaustive rule.
29. That argument is based on the erroneous premiss that complete harmonisation in a particular field is incompatible with the fact that such harmonisation is in a state of continuing evolution. The fact that Directive 2001/83 lays down a complete system of rules for the advertising of medicinal products in no way means that the Community legislature cannot amend or adapt those rules or, if necessary, introduce new ones so as better to attain the objectives of removing barriers to intra‑Community trade and the protection of public health (see, to that effect, Case C‑84/06 Antroposana and Others  [2007] ECR I‑0000, paragraphs 40 and 41).
31. That argument cannot be accepted. It is clear from the wording of Article 7(3) of Directive 84/450 that the provisions of that directive apply without prejudice to Community provisions on advertising for specific products or services. Since Directive 2001/83 contains specific rules on the advertising of medicinal products, it constitutes, as the Slovenian Government maintained in its written observations, a special rule as compared with the general rules concerning protection against misleading advertising provided for by Directive 84/450. The minimal nature of the harmonisation brought about by Directive 84/450 is therefore irrelevant for the assessment of the degree of harmonisation effected by Directive 2001/83.
38. It is for the national court, in applying the provisions of domestic law, to interpret them, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by it (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 113).
39. In those circumstances, the answer to Question 1 must be that Directive 2001/83 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 unconditional 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.
Question 2(a)
48. Finally, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, its attention should be drawn to Article 90(c) of Directive 2001/83, the potential relevance of which was referred to by the Commission in its written observations. It should be borne in mind that the Court may find it necessary to consider provisions of Community law to which the national court has not referred in its question (see Case C‑421/04 Matratzen Concord  [2006] ECR I‑2303, paragraph 18).