Case C‑148/15

Deutsche Parkinson Vereinigung eV

v

Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

(Request for a preliminary ruling
from the Oberlandesgericht Düsseldorf)

(Reference for a preliminary ruling — Articles 34 TFEU and 36 TFEU — Free movement of goods — National legislation — Prescription-only medicinal products for human use — Sale by pharmacies — Setting of fixed prices — Quantitative restriction on imports — Measure having equivalent effect — Justification — Protection of the health and life of humans)

Summary — Judgment of the Court (First Chamber), 19 October 2016

1.        Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Meaning — National legislation providing for a system of fixed prices for the sale by pharmacies of prescription-only medicinal products for human use — Included

(Art. 34 TFEU)

2.        Free movement of goods — Exceptions — Protection of health and life of humans — National legislation providing for a system of fixed prices for the sale by pharmacies of prescription-only medicinal products for human use — Measure aiming to ensure a safe and high-quality supply of medicinal products — No justification

(Art. 36 TFEU)

1.      Article 34 TFEU must be interpreted as meaning that national legislation which provides for a system of fixed prices for the sale by pharmacies of prescription-only medicinal products for human use constitutes a measure having equivalent effect to a quantitative restriction on imports, within the meaning of that article, where such legislation has a greater impact on the sale of prescription-only medicinal products by pharmacies established in other Member States than on the sale of the same medicinal products by pharmacies established within the national territory.

Traditional pharmacies are, in principle, better placed than mail-order pharmacies to provide patients with individually-tailored advice given by the staff of the dispensary and to ensure a supply of medicinal products in cases of emergency. In so far as mail-order pharmacies cannot, given the limited services that they offer, adequately replace such services, price competition must be regarded as capable of providing a more important factor of competition for mail-order pharmacies than for traditional pharmacies, since price competition lays the basis for their potential to access the national market directly and to continue to be competitive in it.

Consequently, and in so far as sales by mail order constitute a more important means of accessing the national market directly for pharmacies established in Member States other than in the national territory, if not, given the particular characteristics of a national market, potentially the only means of accessing that market directly, the national legislation does not affect the sale of national medicinal products in the same way as it affects the sale of medicinal products originating in other Member States.

(see paras 24, 25, 27, operative part 1)

2.      Article 36 TFEU must be interpreted as meaning that national legislation which provides for a system of fixed prices for the sale by pharmacies of prescription-only medicinal products for human use cannot be justified on grounds of the protection of health and life of humans, within the meaning of that article, where that legislation is not appropriate for attaining the objectives pursued.

Although the objective of ensuring a safe and high-quality supply of medicinal products throughout a Member State comes, in principle, within the ambit of Article 36 TFEU, the fact remains that legislation which is capable of restricting a fundamental freedom guaranteed by the Treaty, such as the free movement of goods, can be properly justified only if it is appropriate for securing the attainment of the legitimate objective pursued and does not go beyond what is necessary in order to attain it.

In that regard, increased price competition between pharmacies would be conducive to a uniform supply of medicinal products by encouraging the establishment of pharmacies in regions where the scarcity of dispensaries allows for higher prices to be charged.

Similarly, price competition for prescription-only medicinal products does not adversely affect traditional pharmacies in performing certain activities in the general interest, such as producing prescription medicinal products or maintaining a given stock and selection of medicinal products. On the contrary, it may be that, faced with price competition from mail-order pharmacies, traditional pharmacies will be encouraged to improve such activities.

Lastly, price competition could benefit patients in so far as it would allow, where relevant, for prescription-only medicinal products to be offered at more attractive prices than those currently imposed by the abovementioned national legislation.

(see paras 34, 38, 40, 43, 46, operative part 2)