Setting a price for the delivery of medicinal products – a restrictive measure !
In a judgment of October 19, 2016, the Court of Justice of the European Union once again focused on the application of the principle of free movement of goods in the context of the sale of medicinal products.
The measure submitted for consideration by the Court set a fixed price for the sale of prescription medicinal products in Germany. This measure applies without distinction to pharmacies established in Germany and to those in other Member States.
According to Germany, the price fixing of prescription medicinal products is necessary to guarantee a uniform medicine supply across German territory, to ensure the quality of these drugs and to control the evolution of costs in the health sector.
In the light of the specificities of the German market the Court finds this statement inconsistent.
Indeed, the Court notes that as a result of a legislative amendment in Germany both pharmacies established in other Member States and those established in Germany can sell in Germany prescription medicinal products. Regarding the foreign pharmacies, this activity is nevertheless carried out necessarily by mail-order.
But according to the Court, the only way for these pharmacies to compete with the sale of prescription medicinal products by pharmacies established in Germany depends on the price level since the mail sale is made without individually-tailored advice.
Therefore, the system of fixed prices is, for the Court, a more restrictive measure for pharmacies established outside Germany because it does not allow mail vendors to play on prices, essential parameter for these pharmacies.
In addition, given that the Germany has chosen to allow the online sale of medicinal products, this regulation cannot be justified for the purposes of the protection of health and life of persons insofar as regulation is not able to achieve the desired objectives (Article 36 TFEU).
Associated areas of specialisation: Health and social security