European Court of Justice to support prescription sales on-line?

In a dispute between the German pharmacists' union and the Dutch on-line pharmacy, Advocate General Christine Stix-Hackl took exception to a German law requiring medicines to be sold through pharmacies.

She said that bans on internet and mail order sales and the advertising of such services can only be justified under the free movement of goods rules in respect of medicines that require national authorisation but have not been authorised.

Germany pharmacy trade body the Deutsche Apothekerverband complained that 0800DocMorris.com sells prescription and non-prescription medicines, in languages including German, for consumers in Germany.

The site is a registered pharmacy in the Netherlands. Its products include painkillers, immuo-stimulants and blood pressure treatments, some of which are authorised in Germany, and most of them in another Member State.

A particular medicine will be treated by 0800DocMorris.com 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.

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") forbid such activity.

The Advocate General delivered her Opinion in the case last week:

"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 the 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."

As regards the German prohibition on advertising medicines that are not authorised, or prescription-only medicines, 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.

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.

The Judges of the Court of Justice will now begin their deliberations and are expected to deliver their judgment in a few weeks.

Her conclusions are available in French only at this page