The French rules governing advertising by pharmacists established in other Member States for their on-line non-prescription medicine sales services are not in conformity with European Union law, Advocate General Henrik Saugmandsgaard Øe said in a Opinion delivered on Thursday 27 February (Case C-649/18 A).
Company A operates a dispensing pharmacy in the Netherlands and a website specifically for French customers. This website displays a sales portal on which medicines not subject to compulsory medical prescription as well as parapharmaceutical products are offered.
Several operators of dispensing pharmacies and associations representing the professional interests of pharmacists established in France complain that A engaged in acts of unfair competition by promoting that internet site to French customers by means of a wide-ranging and multi-platform advertising campaign. Company A also allegedly disregarded the obligation, required under French regulations, to have each patient fill in a health questionnaire before confirming his or her first order.
Company A considers that these regulations do not apply to it, as it is regularly established in the Netherlands as a retail pharmacy and sells its products to French consumers via electronic commerce.
The Paris Court of Appeal asks the Court of Justice of the EU to clarify to what extent a Member State is entitled to regulate, on the one hand, the advertising by pharmacists established in other Member States of their online sales services for non-prescription medicines and, on the other hand, the online ordering process for such medicines.
In his Opinion delivered today, the Advocate General points out that the conditions governing the exercise of the profession of pharmacist fall within the competence of the Member States. Thus, where a pharmacist pursues his activities on a cross-border basis by selling medicines on the internet, the question arises whether he must comply with the requirements in force in the Member State in which he is established and/or with the requirements laid down by the Member State of destination.
The Advocate General also considers that the prohibitions on a pharmacy posting promotions for medicines on its internet site and on the use of search engine advertising fall within the scope of the directive on electronic commerce.
Such prohibitions emanating from the Member State of destination of an Information Society service and restricting the free movement of that service are therefore allowed only under strict conditions. The Directive provides that the Member State of destination of the service in question must ask the country of establishment of the service provider to take measures. If the latter does not comply with this request or fails to adopt sufficient measures, the first Member State must notify the European Commission and the second Member State of its intention to take a restrictive measure against that provider.
Thus, according to the Advocate General, the Member State of destination of a service for the on-line sale of medicines may not impose on the provider of that service established in another Member State : - a prohibition on displaying promotions on its website consisting of offering price reductions when the order exceeds a certain amount; - a prohibition on using paid search engine advertising and price comparison sites; - an obligation to make the confirmation of a patient's first order for medicines conditional on the prior completion of a health questionnaire.
However, the Advocate General states that it is for the national court to verify whether the first Member State has not notified the second Member State and the Commission of its intention to apply the rules in question to said provider.
See the conclusions (in French): http://bit.ly/32vkuGG (Original version in French by Mathieu Bion)