Shipping pharmacies: mail order pharmacy was allowed to lure with premiums

A mail order pharmacy based in the EU foreigner was able to grant customers in Germany more than ten years ago 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)

The company DocMorris, whose now integrated daughter Tanimi Pharma was affected in the case, announced that it is now a financial bonus due to the judgment. “We have always granted our customers recipe bonuses at our loads and will now do so again,” said CEO Walter Hess, according to the announcement. The average additional payment of patients per pack has increased by ten percent to 3.30 euros since 2019. “The bonus reduces this load.”

BGH established requirements of the European Court of Justice

The judgment of the first civil senate refers to regulations of the Medicinal Products Act in a version valid until December 14, 2020. The BGH established requirements of the European Court of Justice (ECJ). This had set up hurdles for measures that act like a quantity of import restrictions. A new regulation in the Social Code only refers to legally insured, said the presiding judge Thomas Koch.

The Federal Association of German Pharmacists’ Associations (ABDA) regretted the judgment. “Subject to the examination of the written reasons for the decision, however, we assume that the social law price commitment introduced by the on-site pharmacy strengthening law will remain,” said ABDA President Thomas Prize. “In the fifth social code, price binding is legally determined.” If the price is questioned in the event of prescription drugs, politics would be required to develop solutions with us as soon as possible.

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

In 2012, the mail order pharmacy Tanimis Pharma, based in the Netherlands, had promised customers 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 the standards of the 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 that the health of the population is therefore at risk, explained Richter Koch.

Since the Senate, on the basis of the old regulation, did not see any violation of the law of unfair competition, the judgment does not matter whether the bonuses granted violated a new regulation in the Social Code. The risk of repetition is missing, said Koch. For this reason alone, the lawsuit must be dismissed.