The Deutsche Apothekerverband e.V. is an association whose duties include the protection and
furtherance of the economic and social interests of the pharmacists' profession. Its members
are the regional associations of pharmacists, which in turn represent more than 19
000 pharmacies.
0800 DocMorris N.V. is a Netherlands pharmacy established in Kerkrade, Netherlands. Jacques Waterval
is a pharmacist and one of the legal representatives of DocMorris.
Since 8 June 2000, DocMorris and Mr Waterval have been offering for sale,
on the internet address "www.0800DocMorris.com", prescription and non-prescription medicines, in languages including German,
for consumers in Germany. Some of the medicines in question are authorised in
Germany, and most of them in another Member State.
DocMorris's internet portal is divided into headings as follows: "Pharmacy", "Health forum", "About
us", "Contact" and "Help". Consumers are able, amongst other things, to obtain health
advice from the advisory committee of experts at the "internet pharmacy". In addition,
they can contact DocMorris and Mr Waterval direct on a free telephone number
or by letter.
The individual medicines are divided into product groups on the internet site under
headings such as "Painkillers", "Blood pressure reduction", "Cancer treatment", "Immuno-stimulants", "Cholesterol reduction", "Urologics/potency"
and "Detoxification". Each heading first contains an introduction of a few sentences. The
medicines are then listed alphabetically under their product name, the contents of the
package is described and the price stated in Euros. Beside the indication as
to any prescription requirement there might be there is a box. By clicking
on that box, the relevant medicine is ordered. For further information about the
product itself, customers can click on the product name.
A particular medicine will be treated by DocMorris and Mr Waterval as subject
to prescription if it is so classified either in the Netherlands or in
the Member State in which the customer lives. Delivery of such medicines does
not take place until the original prescription is produced.
Delivery itself can take place in a number of ways. One possibility is
for the customer personally to collect the order from the DocMorris pharmacy in
Landgraaf, a town near the German/Dutch border. Another, at no extra cost, is
to use a courier service recommended by DocMorris.
By its application before the Landgericht Frankfurt, the Deutsche Apothekerverband objects to medicines
being offered to the public on the internet and their delivery by cross-border
mail order. It takes the view that the German Arzneimittelgesetz (Medicines Law or
"AMG") and the German Gesetz über die Werbung auf dem Gebiete des Heilwesens
(Law on Advertising in the Field of Medicine or "HWG") do not allow
such an activity.
It does not consider these prohibitions to contravene the provisions in the EC
Treaty on the free movement of goods. The relevant provisions are Paragraph 43
of the AMG, which prohibits trading by mail order in medicines that are
required to be sold through pharmacies, and Paragraphs 3(a) and 8 of the
HWG, which prohibit the advertising of medicines which require authorisation but have not
been authorised, and trading by mail order in medicines that are required to
be sold through pharmacies. Paragraph 10 of the HWG prohibits the advertising of
prescription-only medicines.
The Advocate General delivers her Opinion in this case today.
Opinions of the Advocates General are not binding on the Court. It is
the function of the Advocates General, acting in complete independence, to propose a
legal solution in cases before the Court.
In the Advocate General's view, a national prohibition on the import of medicines
that are required to be sold through pharmacies by mail order through authorised
pharmacies in other Member States on the basis of individual orders placed by
internet constitutes a barrier to the free movement of goods. The decisive factor
here is ultimately whether the measure ) in this case, the German prohibition
on trading in medicines by mail order ) significantly impedes access to the
market. It does for foreign pharmacies, as compared to German pharmacies, on the
German market. The prohibition is justified as being for t he protection of health
and life of humans, in so far as it relates to medicines that
require authorisation but have not been authorised either in the country of import
i.e. Germany, or at Community level. Such a prohibition is not disproportionate.
The position is different, however, for medicines that are authorised or do not
require authorisation. It is for the country concerned to prove that here too
the prohibition on mail order trade is consistent with the principle of proportionality,
in other words, that it is necessary and appropriate. In the Advocate General's
view, Germany has not proved this. Examples of less severe measures are controls
on ordering, dispatching, transporting and taking delivery of medicines. It is for the
national court to determine whether these conditions are met in an individual case.
The Advocate General goes on to examine whether a national prohibition on advertising
the possibility of sending for medicines which are required to be sold through
pharmacies, such as the one provided for under the German rules, contravenes the
principle of the free movement of goods. She concludes that a prohibition on
advertising the possibility of sending for medicines which require authorisation but have not
been authorised is, like the prohibition on mail order trade, both necessary and
appropriate, but that the same does not hold true for medicines that have
been authorised or do not require authorisation.
As regards the German prohibition on advertising medicines that are not authorised (Paragraph
3(a) of the HWG), or prescription-only medicines (Paragraph 10 of the HWG), the
Advocate General points out that this reflects the prohibition on advertising medicines, or
advertising them to the general public, in the Community directive on advertising of
medicinal products, and is simply a national implementing measure. The expression "advertising to
the general public" in the Directive includes DocMorris's internet presentation, as the expression
is to be interpreted widely. The crucial factor is the objective impression conveyed
to the consumer by the overall appearance of the homepage.
Lastly, the Advocate General observes that the Member States were not obliged to
transpose the Community E-Commerce Directive until 17 January 2002, and that that Directive
does not therefore apply to the facts in this case, which occurred in
2000.
Note: The Judges of the Court of Justice of the EC will now
begin their deliberations in this case. Judgment will be delivered at a later
date.
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Available in Dutch, English, French, German and Spanish. For the full text of the Opinion, please consult our Internet page www.curia.eu.int at approximately 3 pm today. For further information please contact Chris Fretwell Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731. Pictures of the hearing are available on "Europe by Satellite", European Commission, Press and Information Service, L-2920 Luxembourg, Tel: (352) 4301 35177; fax: (352) 4301 35249 or B-1049 Brussels, tel: (32) 2 296 4106; fax (32) 2 2926 5956 or (32) 2 230 1280 |