MSD Sharp & Dohme GmbH v Merckle GmbH.
Date: 2011-05-05
21. According to the Court’s case-law, it is for the referring court alone to determine the subject-matter of the questions it intends to refer. It is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see Joined Cases C‑376/05 and C‑377/05 Brünsteiner and Autohaus Hilgert  [2006] ECR I‑11383, paragraph 26).
23. In accordance with settled case-law, Article 267 TFEU does not make available a means of redress to the parties to a case pending before a national court, so that the Court cannot be compelled to evaluate the validity of European Union law on the sole ground that that question has been put before it by one of the parties in its written observations ( Brünsteiner and Autohaus Hilgert , paragraph 28 and the case-law cited).
29. It is apparent from the outset from the wording of that provision, in particular from the expression ‘any form’, that the concept of advertising of medicinal products adopted by the European Union legislature is very broad. As is clear from recital 44 in the preamble to Directive 2001/83, that concept may include the dissemination on the internet of information relating to medicinal products (see, to that effect, Case C‑421/07 Damgaard  [2009] ECR I‑2629, paragraph 28).
30. As regards, in particular, medicinal products which, like those at issue in the main proceedings, are available only on prescription, that broad conception of advertising is supported by the essential aim of Directive 2001/83, which is to safeguard public health (see Damgaard , paragraph 22) and which, in light of the serious consequences for health which may arise from improper use or overconsumption of such medicinal products, justifies a broad interpretation of the prohibition on advertising those products.
33. The question whether a dissemination of information has a promotional objective must be determined by undertaking a detailed examination of all the relevant circumstances of the case, which is for the national court (see, to that effect, Damgaard , paragraph 23).
34. As regards the identity of the person disseminating information relating to a medicinal product, although it is undeniable that the manufacturer of that medicinal product has a financial interest in marketing its product, the fact that the manufacturer disseminates such information itself cannot, as such, lead to the conclusion that it has an advertising purpose. It is also necessary, for such a fact to be a conclusive factor in favour of the classification of that dissemination as advertising, that the conduct, action and approaches of the manufacturer disclose its intention to promote, via such dissemination, the prescription, supply, sale or consumption of that medicinal product (see, by analogy, Case C‑219/91 Ter Voort  [1992] ECR I‑5485, paragraph 26).
37. It is admittedly possible that, because of a request by an informed patient, the doctor is led to prescribe a medicinal product other than that which he initially preferred and that, consequently, the factual information contributes, even marginally, to increasing sales. However, such a possibility is not sufficient to show promotional intent on the part of the manufacturer of the medicinal product. Furthermore, in principle it does not represent a specific danger to the health of the patient if the doctor takes the view that the prescription of one or other of the medicinal products may be envisaged and cannot compromise the objectivity with which, as noted in recital 50 in the preamble to Directive 2001/83, a doctor must act when issuing a prescription for a given patient. A prescribing doctor is required, from the point of view of professional conduct, not to prescribe a given medicinal product if it is not fitting for the therapeutic treatment of his patient (see, to that effect, Case C‑62/09 Association of the British Pharmaceutical Industry  [2010] ECR I‑0000, paragraphs 39 and 40).