Judgment in the pharmacist dispute: Are medication now cheaper?

Actually, you can be sure: If a doctor issues a recipe for a pharmacy, the drug is equally expensive throughout Germany. For this, the legal price commitment of medicinal products ensures.

With a view to a discount campaign by a foreign online pharmacy, the Federal Court of Justice (BGH) in Karlsruhe has now clarified a long controversial legal question. What the judgment means and what consequences it could have:

There is no legal price commitment for medication that can be bought from the doctor in the pharmacy without a prescription. Each pharmacy therefore decides how expensive it sells it. For prescription drugs, however, the prices are regulated by law – via the Medicinal Prize Prize Ordinance. The basic idea behind it is that the medication should be offered in every pharmacy at the same price. This should protect the pharmacies from ruinous competition and the vulnerable patients from a survival.

First, the pharmaceutical company sets the sales price for its medicine itself. Wholesale and pharmacies raise surcharges, which in turn are regulated by law. The wholesale may initially be a maximum of 3.15 percent plus a fixed surcharge of 73 cents per pack, but at most 37.80 euros. The pharmacies can again raise a three percent surcharge of EUR 8.35 per package. There are also 21 cents for ensuring the emergency service and 20 cents for the promotion of additional pharmaceutical services.

For years it was argued whether the price binding also applies to mail order pharmacies based in the EU foreignland. That was now a topic at the BGH. The Bavarian Pharmacists’ Association had sued the Vailor pharmacy Tanimis Pharma from the Netherlands in Karlsruhe, which more than ten years ago also promised German customers bonus premiums when buying prescription medication. It is a daughter of DocMorris that is now integrated in the company.

In 2016, the European Court of Justice (ECJ) decided in a pioneering judgment that the price regulations of the Medicines Act (AMG) do not apply to pharmacies based in other EU member states. Because that would restrict free goods traffic and thus violate EU law. Although a restriction of free goods traffic could generally be justified with the protection of health and life – but the price commitment is not suitable for this purpose.

The Munich lower courts had nevertheless granted the pharmacist association’s lawsuit. They said the ECJ judgment could not be applied here, since the doubt about the suitability and proportionality of the price regulation, for example, was cleared by the Federal Government’s information.

In Karlsruhe, however, the mail order pharmacy was now successful: According to the ECJ, “hard facts” should be available for justification for the price commitment, the first civil senate judged. However, the plaintiff was unable to present data or other means to prove his assertion that without the pharmaceutical price binding, the maintenance of a secure and comprehensive pharmaceutical supply and therefore the health of the population was endangered, explained the chairman Thomas Koch.

However, the judgment explicitly only refers to previous regulations according to the AMG in the version valid until December 14, 2020. (Az. I ZR 74/24)

To implement the ECJ decision, the passage was lifted in the AMG, according to which the Medicinal Prize Prize Ordinance also applied to drugs that came to Germany by means of mail order. Changes were made via the law to strengthen the on-site pharmacies in the Social Code. Accordingly, the same price for prescription drugs should apply for legally insured persons-regardless of whether they are obtained from a pharmacy on site or an EU shipping pharmacy.

Here the interpretations differ significantly: DocMorris announced that it was again a financial bonus on the basis of the judgment Customers for online orders for all medication “from now on”.

The Federal Association of German Pharmacists’ Associations (ABDA), on the other hand, emphasized that the price bond was legally defined in the Fifth Social Code. Subject to the examination of the written reasons, the associations assumed that it would remain. “Medicines are not a simple merchandise, they are highly advisable products with extensive risk profiles- discounts and bonuses do not belong in the pharmaceutical and health care,” said ABDA President Thomas Prize according to the announcement.

“If the price binding in the event of prescription drugs is questioned, politics would be required to develop solutions with us as soon as possible,” said Prize. Then the legal regulations would have to be revised. It could also be that courts deal with the question: In a separate procedure, it would have to be clarified whether the current regulations also violate the criteria specified by the ECJ.