The Court of Justice of the European Union has clarified the conditions for cross-border online sales of medicines not subject to medical prescription in a judgment handed down on Thursday 1 October (Case C-649/18).
The Dutch company A operates a pharmacy in the Netherlands as well as a website targeting French customers for the cross-border marketing of medicines authorised in France and not subject to prescription.
Invoking French regulations governing the sale and advertising of medicines online, several French pharmacy operators consider that they are subject to unfair competition from company A. They contest the company’s “iniquitous” promotional activities by means of a multifaceted and large-scale advertising campaign, via: - insertion of advertising leaflets in parcels sent by other distance sellers; - sending of advertising mail; - promotional offers granting a discount on the total price of the order from a certain amount; - purchase of paid referencing on search engines.
Referred by the Paris Court of Appeal, the Court of Justice of the EU interprets the Directives (2001/83) establishing a Community code relating to medicines for human use and (2000/31) regulating information services, in particular electronic commerce.
In the present case, since the advertising of company A is inseparable from the on-line sales service, the European Court is of the opinion that the Member State of destination cannot, in principle, restrict the free movement of information of a company’s services from another EU country, unless such a restriction is justified by certain general interest objectives and is proportionate.
For example, national regulations that absolutely prohibit any form of advertising by health professionals to promote their activities go beyond what is necessary to protect public health and the dignity of a regulated profession, the Court adds.
As regards the obligation in France to fill in an on-line health questionnaire to validate the first order of medicines, the Court is of the opinion that, although that measure certainly has a deterrent effect, it does not appear to go beyond what is necessary to guarantee a public health objective.
The Court also considers contrary to EU law any prohibition, imposed by a Member State of destination on non-national pharmacies selling non-prescription medicines, of the use of paid listings in search engines and price comparators. It rejects France’s argument that this measure is intended to ensure a balanced distribution of pharmacies on its territory.
See the judgment (in French): https://bit.ly/3lgAftx (Original version in French by Mathieu Bion)