A v Daniel B and Others.
Date: 2020-10-01
Lastly, as regards, more specifically, online sales services relating to medicinal products, it follows from Article 1(5) of Directive 2000/31 that such sales are not among the activities excluded from the application of that directive (see, by analogy, judgment of 2 December 2010, Ker-Optika, C‑108/09, EU:C:2010:725, paragraph 27). For its part, Article 85c of Directive 2001/83 on the sale at a distance of medicinal products to the public by means of information society services refers, inter alia, to the provisions of Directive 2000/31 and does not prohibit the sale at a distance of medicinal products not subject to medical prescription, which alone are the subject of the case at issue in the main proceedings.
Furthermore, under Article 3(4) of Directive 2000/31, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, where the two cumulative conditions set out in Article 3(4)(a) and (b) are satisfied (see, to that effect, judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraphs 83 and 84). Thus, an interpretation of Article 3(4) of that directive, to the effect that Member States may justify, on the basis of primary law, a requirement that does not meet the conditions laid down in that provision would deprive that provision of any practical effect by ultimately undermining the harmonisation in this area intended by that directive (see, by analogy, judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraph 37) . In those circumstances, there is no need to assess the national legislation at issue in the main proceedings by reference to primary law, in particular Article 34 TFEU.
In that regard, it should be recalled that it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, inter alia the relevance of the questions that it submits to the Court. Consequently, where those questions concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 31).
Questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 32).
Admittedly, in the case of a dispute between private persons, the Court has consistently held that a directive cannot of itself impose obligations on private persons and cannot therefore be relied upon as such against private persons. However, the Court has also repeatedly held that Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 30 and the case-law cited).
In applying national law, national courts called upon to interpret that law are thus inter alia required to consider the whole body of rules of national law and to apply methods of interpretation that are recognised by those rules in order to interpret it, 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 the directive and, consequently, to comply with the third paragraph of Article 288 TFEU (judgment of 19 April 2016, DI,  C‑441/14, EU:C:2016:278, paragraph 31 and the case-law cited).
In that regard, it should be noted that, where national legislation which imposes various prohibitions or obligations on a provider of information society services thereby restricts the freedom to provide services, the Member State concerned must, pursuant to that provision, have previously notified the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt the restrictive measures concerned (judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 85).
The Court has, moreover, previously held that that notification obligation constitutes an essential procedural requirement which justifies the unenforceability of non-notified measures restricting the freedom to provide an information society service against individuals (judgment of 19 December 2019, Airbnb Ireland,  C‑390/18, EU:C:2019:1112, paragraph 94).
However, as is clear from the case-law cited in paragraph 37  of the present judgment, questions relating to EU law enjoy a presumption of relevance. That presumption cannot be rebutted by the mere fact that one of the parties to the main proceedings contests a certain fact which must be verified by the referring court and not by the Court of Justice (see, to that effect, judgments of 5 December 2006, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 26, and of 14 April 2016, Polkomtel, C‑397/14, EU:C:2016:256, paragraph 38).
In view of the importance of the relationship of trust which must prevail between a health professional and his or her patient, the protection of the dignity of a regulated profession, which is also reflected in Article 8(1) of Directive 2000/31, is capable of constituting an overriding reason in the public interest, relating to the protection of public health, capable of justifying a restriction on the freedom to provide services (see, to that effect, judgment of 4 May 2017, Vanderborght, C‑339/15, EU:C:2017:335, paragraphs 67 and 68).
In that regard, the Court has previously held, in particular, that the extensive use of advertising or the selection of aggressive promotional messages may undermine the protection of health and compromise the dignity of a health profession (see, by analogy, judgment of 4 May 2017, Vanderborght, C‑339/15, EU:C:2017:335, paragraph 69).
As regards whether a prohibition such as that at issue in the main proceedings is necessary, it must be noted that the health and life of humans rank foremost among the assets and interests protected by the TFEU 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 (judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 71).
That said, the Court has previously held that, notwithstanding that measure of discretion, a restriction arising from the application of national legislation imposing a general and absolute prohibition of any advertising used by health professionals to promote their care activities goes beyond what is necessary to protect public health and the dignity of a regulated profession (see, to that effect, judgment of 4 May 2017, Vanderborght, C‑339/15, EU:C:2017:335, paragraphs 72 and 75).
In that regard, it is clear from the case-law that such an objective contributes to achieving a high level of protection of public health (see, to that effect, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraphs 32 to 34).
In that regard, it should be noted that the Court has previously recognised that such an objective relating to the protection of public health is legitimate (see, to that effect, judgment of 11 December 2003, Deutscher Apothekerverband, C‑322/01, EU:C:2003:664, paragraph 106).
It is true that the consumption of medicinal products not subject to medical prescription does not, in principle, pose similar risks to those connected with the consumption of medicinal products that are subject to medical prescription (see, to that effect, judgment of 11 June 2020, ratiopharm, C‑786/18, EU:C:2020:459, paragraph 36). However, it cannot be excluded that certain risks may also arise from the use of medicinal products not subject to medical prescription.
However, the Court has previously held that an increase in the number of online interactive features, which the customer must use before being able to proceed to a purchase of a medicinal product, is an acceptable measure which is less detrimental to the free movement of goods than a prohibition of the online sale of medicinal products and which, just as effectively, ensures the attainment of the objective of reducing the risk of misuse of medicinal products purchased online (see, to that effect, judgment of 11 December 2003, Deutscher Apothekerverband, C‑322/01, EU:C:2003:664, paragraphs 112 to 114).
In that regard, the Court has previously recognised that the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality throughout national territory is capable of justifying a restriction on trade between Member States in so far as it contributes to the protection of health and life of humans (see, to that effect, judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 68 and the case-law cited).
The Court has previously held that, where there is uncertainty as to the existence or extent of risks to human health, it is important that the Member State concerned should be able to take protective measures without having to wait until the reality of those risks becomes fully apparent. In addition, the Member State may take the measures that reduce, as far as possible, a public-health risk, including a risk to the reliability and quality of the provision of medicinal products to the public (judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 72 and case-law cited).
That said, it is for the Member States, in each individual case, to, in particular, adduce evidence of the appropriateness and necessity of a measure they adopt in derogation of a fundamental freedom (see, to that effect, judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraphs 69 and 70 and the case-law cited).
Consequently, it will be for the referring court to objectively examine whether any evidence that may be adduced before it allows it to reasonably conclude that the means chosen are appropriate for the attainment of the objectives pursued and that those objectives cannot be attained by measures which are less restrictive (see, by analogy, judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 70  and the case-law cited).