ECJ: Pharmacists may not simply sell medicines via Amazon

The current practice of the operator of the Linden pharmacy in Gräfenhainichen to sell pharmacy-only medicines such as Aspirin, Grippostad and Canesten via Amazon is unlawful. This was ruled by the European Court of Justice (ECJ) on Friday following questions referred by the Federal Court of Justice (BGH).

The bone of contention: Michael Spiegel, owner of Linden-Apotheke, has been selling pharmacy-only medicines via Amazon since 2017 and now also partly via the Prime express service, which can then be delivered within an hour. Customers have to enter various personal details when ordering these medicines online.

Competitor fights back

Because of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG), a competitor of Spiegel, the operator of the Munich-based Winthir pharmacy Hermann Vogel Jr., first applied to a lawyer for a warning letter and then to the German courts to prohibit the competitor from carrying out this activity.

It must first be ensured that customers can consent to the processing of health data in advance. The courts of first and second instance also took the view that this distribution was an unfair and unlawful practice.

Conclusions on health status possible

In its judgment in case C-21/23, the ECJ has now ruled that the information entered by customers when ordering pharmacy-only medicines online constitutes particularly sensitive health data within the meaning of the General Data Protection Regulation (GDPR), even if the sale of these medicines does not require a doctor's prescription. This information can be used to draw conclusions about a customer's state of health.

The seller must therefore inform customers clearly, completely and in an easily understandable manner about the specific circumstances and purposes of data processing and obtain their express consent. The Luxembourg judges also expressly recognized the possibility of issuing a warning because of the GDPR.

(vbr)