Germany, Federal Supreme Court of Germany , 30 April 2020 I ZR 122/19

Identification of the case

• § 43 I 1 AMG (Arzneimittelgesetz), § 73 I 1 Nr. 1a AMG, § 12 I 1 ApBetrO (Apothekenbetriebsordnung), § 48 I 1 AMG, § 17 V 4 ApBetrO

• Article 34, Article 36 TFEU

Summary of the case

The previous Court prohibited the sale of pharmaceuticals by DocMorris N.V. originated from the Netherlands via a drug administration machine located in Germany. In this process, the consumer received a pharmaceutical video-consultation and subsequently, they could take the drugs out of a machine. The defendant appealed to the Federal Supreme Court for review, however, the highest Court rejected the admission of the case. The defendant appealed against the non-admission.

• Civil judicial enforcement

Non-admission of the complaint

Upholding the judgment of the previous instance

Firstly, the Court dismissed the complaint that the case had not been referred to the CJEU for a preliminary ruling. It affirmed the ruling of the former instances that there was no infringement of Article 34 (prohibition of the quantitative restrictions between the Member States) and even if there had been one, it would have been justified by Article 36 for the protection of health and life of humans. Furthermore, the question about the justification of an infringement concerning the prohibition of the quantitative restrictions between the Member States in the context of the safety of pharmaceuticals has been answered within the jurisprudence of the CJEU (reference to the CFEU judgement Apothekerkammer des Saarlandes).

The lower Court rightly ruled that the national provisions regarding the national pharmacy-only requirement and the modalities of the catalog selling which are requiring a selling directly to the end-consumer and documentation duties for drugs aim to guarantee the pharmaceutical safety and securing a high level of protection of the end-consumer. These guarantees fall within the scope of Article 36 TFEU and are a valid justification for the prohibition. The defendant further argued that the system of sale they employed enabled less restrictions on the free sales of goods than the regular exclusion of non-pharmacy sales points. The Supreme Court generally held that the Member States enjoy a margin of appreciation when examining the principle of proportionality in the context of health protection (CJEU, Kommission/Deutschland). Within this margin of appreciation, it is valid to argue that the running of a pharmacy by a non-pharmacist – in contrast to a pharmacy run by a pharmacist – can constitute a danger to the health of the people since the money-making business is not restricted by moderate factors like education, professional experience and the responsibility of a pharmacist. This also applies to the catalogue selling of drugs.

Lastly, the complaint referred to a judgment of the CJEU (Deutsche Parkinson Vereinigung). However, the Court dismissed this argument. It eventually said that the requirement which the CJEU set in this particular decision regarding the principle of proportionality cannot be transferred to the present case. The national provisions in the latter case are directly connected to drug safety and therefore also immediately to the life and health of the population in the sense of Article 36 TFEU.

Role of the Charter and role of the general principles on enforcement

The CFREU was not used in this case. Instead, the Court referred to Article 36 TFEU to elaborate on the health protection of consumers.

An infringement of Article 34 TFEU because of the requirements regarding catalog selling of drugs set out by § 73 I 1 Nr. 1a AMG was denied since such an infringement is justified in the light of the protection of public health and the life of humans (Article 36 TFEU).

• Proportionality

The Supreme Court recalled the jurisprudence of the CJEU (Commission of the European Communities v Federal Republic of Germany, C-141/07) when stating that the principle of proportionality in the context of health protection is subject to a margin of appreciation. It further elaborated that it is within this margin of appreciation to make the assumption that the running of a pharmacy by a non-pharmacist – in contrast to a pharmacy run by a pharmacist – can constitute a danger to the health of the people since the money-making business is not restricted by moderate factors like education, professional experience and the responsibility of a pharmacist.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU Joined Cases C-171/07, C-172/07, Apothekenkammer des Saarlandes v Saarland, Ministerium für Justiz, Gesundheit und Soziales
• CJEU C-141/07, Commission of the European Communities v Federal Republic of Germany
• CJEU C-148/15, Deutsche Parkinson Vereinigung e.V. v Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V.

Conform interpretation with EU law as interpreted by the CJEU

Proportionality

The Court used the first CJEU judgments to decline requesting preliminary judgment of the CJEU by referring to its established jurisprudence in the matter concerned. Furthermore, it explained the principle of proportionality by referring to case law of the CJEU, especially with regards to the margin of appreciation. Lastly, it picked up on an argument of the complainant which was based on a CJEU judgement and therefore, the Court needed to deal with it.