Dispatch of medicines: Regional court lets third parties choose the pharmacy

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Pharmacies are not permitted to enter into agreements on "the preferential supply of certain medicinal products, the supply of patients, the allocation of prescriptions [...]" for the German market. This is stated in the Pharmacy Act (Paragraph 11 Para 1). Pharmacies are supposed to act independently and patients are free to choose. Now the Regional Court of Frankfurt am Main has surprised with a narrow interpretation of the provision that allows pharmacies to cooperate in a similar way. The Hamburg Regional Court may see things differently.

The reason for the Frankfurt decision (case no. 2-06 O 150/25) is the application by a telemedicine platform for an interim injunction against a Berlin pharmacy. The pharmacy cooperates with a British telemedicine platform that offers German patients advice, prescriptions and the dispatch of medication. The British provider urges its customers to pay for a "premium service". It charges total prices that also include the prescribed medicines and their delivery. The pharmacy is selected automatically; in the plaintiff's test purchases, it was the defendant pharmacy in Berlin.

Alternatively, patients can also use the "standard service". They choose the pharmacy themselves from a list of cooperation partners on the platform. The medicine can then be picked up or sent to them. However, the options "Premium" (without choice of pharmacy) and "Standard" (with choice of pharmacy from a list) are not presented in a non-discriminatory manner. Only medicines with premium service are advertised on the homepage, and these are also given preference in search results. The website gives the false impression that even selected pharmacies are allowed to refuse orders. In addition, certain discounts only apply to the premium version without a choice of pharmacy.

Competitor goes to court

Patients are therefore encouraged to use the premium version, which does not allow them to choose their pharmacy. The plaintiff considers this to be unlawful. If the Berlin pharmacy fulfills such guided "premium" orders, this is unfair competition and violates the above-mentioned section 11 para 1 of the Pharmacy Act.

However, the Frankfurt Regional Court rejected the application for an interim injunction against the Berlin pharmacy. According to the decision of May 28, there is no violation of the Pharmacy Act. Accordingly, the choice does not have to be non-discriminatory.

"The fact that the patient is offered the choice between 'premium service' and the option 'electronic prescription (without medication)' and the fact that the patient can select a specific pharmacy as part of the latter option (...) does not inadmissibly restrict the patient's right to free choice of pharmacy (Section 31 Para 1 S 5 SGB V)," writes the Frankfurt am Main Regional Court. The plaintiff may appeal and/or continue the main proceedings.

The rejection of the urgent appeal is clear, but there are also other views. The Frankfurt Regional Court itself refers to a decision in parallel proceedings against the British telemedicine platform before the Hamburg Regional Court. This court prohibited the British company from "directly allocating prescriptions to certain pharmacies in Germany" if this was done in the manner incriminated. However, it is not clear from the Hamburg ruling "on what basis the prohibition was issued". The Hamburg ruling is not yet public; heise online has requested a copy from the court.