Federal Constitutional Court confirms price fixing for prescription medicine
Karlsruhe (jur). The Federal Constitutional Court in Karlsruhe has confirmed this with a decision published on Monday, April 18, 2016 (file number: BvR 929/14). It thus dismissed a complaint by the German mail order company Otto against a ban on its cooperation with the Dutch mail order pharmacy DocMorris.
Under the heading "Otto recommends DocMorris", the mail order company advertised the Dutch mail order pharmacy on its website at the end of April 2006. DocMorris promised customers various discounts. Statutory insured persons should receive an “immediate bonus” in the amount of the additional payment due in German pharmacies when they place their first order, and should then still save half the additional payment for further orders.
The Landesapothekerverband Baden-Württemberg sued Otto to refrain from promoting DocMorris. It violates the German price fixing for prescription drugs.
Upon presentation of the BGH, the Joint Senate of the Supreme Courts of the Federal Government had already decided in 2012 that the price fixing also applies to mail-order pharmacies in other EU countries (Az .: GmS-OGB 1/10; judgment of August 22, 2012, JurAgentur announcement from Following day).
As a result, the BGH declared discounts by the Dutch Europa Apotheke Venlo to be inadmissible and decided that the fixed price cannot be bypassed even through delivery through German pharmacies (decisions and JurAgentur notification of February 26, 2014, file number: I ZR 72 / 08 and Az .: I ZR 77/09). Accordingly, Otto was unsuccessful before the BGH (judgment of February 26, 2014, file number: I ZR 79/10).
With its decision of March 31, 2016, which has now been published in writing, the Federal Constitutional Court also dismissed the mail order dealer's constitutional complaint. Otto was not able to demonstrate that the interference to price freedom linked to price maintenance was disproportionate. European law was also not violated. The BGH has explained in detail why price fixing is also in accordance with EU law and the case law of the European Court of Justice (ECJ) in Luxembourg. A submission to the ECJ was therefore not necessary.
In a dispute over manufacturer discounts before the Federal Constitutional Court, DocMorris had unsuccessfully issued a warning to the ECJ (decision of March 24, 2016, ref .: 2 BvR 1305/10; JurAgentur notification of April 11, 2016). mwo / fle