Shipping pharmacies: BGH clarifies: mail order pharmacy was allowed to curl with premiums

A mail order pharmacy based in the EU countries may grant customers in Germany bonus premiums on prescription drugs. The Federal Court of Justice (BGH) in Karlsruhe decided that the regulations on the pharmaceutical price binding in this country in this country were not applicable for mail order pharmacies based in other EU countries. They would have violated the freedom of goods. (Az. I ZR 74/24)

Since the first civil senate saw no violation of the law of unfair competition here, according to the judgment, it does not matter whether the bonuses granted violated a new regulation in the Social Code. The risk of repetition is missing, said judge Thomas Koch. For this reason alone, the lawsuit must be dismissed.

So far, courts have been on the side of the Bavarian Pharmacist Association

In the specific case from 2012, it was about a mail -order pharmacy based in the Netherlands, which customers had promised a bonus of three euros per medication at a maximum of nine euros per recipe when redeeming a recipe. There were also premiums for people who took part in a drug check by form or phone call.

The Bavarian Pharmacists’ Association saw this a violation of competition law and the pharmaceutical price binding – and complained. He was still successful in the lower courts in Munich.

Controversial question unexplained for years

For prescription drugs, pricing – unlike over -the -counter – is regulated by law. The basic idea: The affected medicines should be offered in every pharmacy at the same price. The pharmacists’ associations explain that the pharmacies should protect the pharmacies from ruinous competition and the patients from a survival.

It has been controversial for years whether the price commitment also applies to shipping pharmacies in other EU countries – or whether this violates the free goods traffic of the EU. The Higher Regional Court (OLG) Munich had decided that the price commitment was not contrary to the Union rights. The legislator was able to assume that the regulation was a suitable means to ensure the supply of drugs in Germany. The OLG therefore gave the association’s lawsuit.

However, the BGH referred to standards of the European Court of Justice (ECJ). The plaintiff did not submit any sufficient data or other “hard facts” to prove that without the pharmaceutical price binding, a comprehensive pharmaceutical supply could not be maintained and the health of the population was therefore endangered, explained Koch.