On 27/02/2025, the ECJ published its long-awaited judgment in Case C-517/23 – Doc Morris ./. Apothekerkammer Nordrhein and thus answered three questions referred by the German Federal Court (dated 13/07/2023 – I ZR 182/22).
The Court wanted to know whether advertising for a pharmacy’s entire range of prescription-only medicinal products falls within the scope of Directive 2001/83/EC, the so-called Community Code relating to medicinal products for human use.
In contrast to the Advocate General, the ECJ differentiates between individual case constellations when answering the question. The Community Code only applies to actions aimed at promoting the prescription, supply, sale or consumption of medicinal products. makes a distinction.If a pharmacy’s entire range of prescription-only medicines is advertised with discounts or payments of any other kind, this does not promote the consumption of prescription-only medicines. After all, once the customer has received a prescription, all that remains to him is for choose the pharmacy from which he obtains it. Such advertising is not subject to the provisions of the Community Code – and is therefore not inadmissible with regard to this set of regulations.
However, advertising campaigns relating to the entire range of prescription-only medicinal products may on the basis of other provisions of EU law be inadmissible, namely if the amount of the discount or other payment cannot be determined in advance, since such advertising would create the risk that consumers would overestimate the amount of the premium. In this respect, a national ban on such advertising measures is justified for reasons of consumer protection.
Promotions in which for the purchase of a prescription-only medicinal product a voucher for subsequent orders of non-prescription medicinal products or other health and care products is offered may also be classified as inadmissible. The Community Code is applicable to such advertising campaigns, as the voucher advertising is likely to promote the consumption of non-prescription medicines. Since consumers are free to decide whether to use the voucher obtained to purchase medicines or other products such as health and care products, vouchers equate non-prescription medicines and non-prescription health and care products and thus distract consumers from an objective examination of whether it is really necessary to take these medicines. Therefore, such advertising could be prohibited by national law – in Germany specifically by Section 7 German Health Advertising Act.
With the latter finding, the ECJ fortunately takes a different position than Advocate General Szpunar in his Opinion of 24/10/2024. The Advocate General took the view that advertising in the form of a cash discount, a voucher or a percentage discount for the subsequent purchase of other products such as non-prescription medicines or non-prescription health or beauty products does not constitute “advertising for medicinal products” within the meaning of Article 86(1) of Directive 2001/83.
