Setback for DocMorris: ECJ upholds German ban on discounts for online pharmacies

Legal defeat for DocMorris: The European Court of Justice (ECJ) has declared broad German discount bans for online pharmacies to be essentially compatible with EU law. According to a ruling by the Luxembourg judges on Thursday, member states may prohibit advertising campaigns by the Dutch mail-order pharmacy for the purchase of prescription medicines if they are linked to vouchers for subsequent orders of non-prescription medicines and health and care products.

The ECJ justified this as follows: as a consumer can choose between the purchase of non-prescription medicines and other goods during such a discount campaign, the vouchers put both types of product on an equal footing and thus distract the consumer “from an objective examination of whether it is necessary to take these medicines”.

The dispute has been dragging on for some time. DocMorris has been running various advertising campaigns for the purchase of prescription medicines since 2012, targeting customers in Germany. These included the vouchers commonly known as Rx bonuses.

At the request of the North Rhine Chamber of Pharmacists, the Cologne Regional Court issued temporary injunctions prohibiting such discount campaigns by DocMorris. However, as most of these court orders were subsequently overturned, DocMorris applied to the German courts for damages from the Chamber of Pharmacists in the amount of around 18.5 million euros. In DocMorris' opinion, the injunctions were unjustified from the outset.

Discounts of unspecified amounts can be prohibited

The case ended up at the Federal Court of Justice (BGH), which referred the matter to the ECJ. Discounts and payments by DocMorris of an exact amount for ordering unspecified prescription drugs and a bonus of between €2.50 and €20 are also disputed. The BGH wanted to know whether German law, which at most allows promotions with discounts and payments of a certain amount, is compatible with the Directive on the Community code relating to medicinal products for human use. In case C-517/23, the ECJ has now also clarified that this law does not prevent the Federal Republic of Germany from allowing such promotions in the form of a specific amount of money or an amount to be calculated in a specific way under German law.

However, according to the ruling, a member state may also prohibit advertising campaigns for the purchase of unspecified prescription drugs, which offer a premium whose amount is not precisely recognizable to the customer in advance, for reasons of consumer protection. Such a prohibition, as practiced by Germany, could prevent customers from overestimating the amount of the premium. The case now goes back to the BGH, which must also decide on possible damages for DocMorris and take the guidelines from Luxembourg into account. DocMorris assured that it would “continue to exploit the opportunities of digitalization and e-prescription growth in Germany”.

(mho)