Action brought on 9 March 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-141/07)

(2007/C 117/24)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima)

Defendant: Federal Republic of Germany

Form of order sought

Pleas in law and main arguments

Under Article 28 EC, all quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. All trading rules of the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered to be measures having an equivalent effect to quantitative restrictions. The fact that, as Community law currently stands, the rules relating to the distribution of medicinal products have been harmonised only in certain limited fields does not release a Member State from its obligation to comply with the provisions concerning the free movement of goods.

According to Paragraph 14 of the German Apothekengesetz (Law on Pharmacies), German hospitals may be supplied with medicinal products by an external pharmacy instead of setting up their own pharmacy inside the hospital. According to this provision, contracts for the supply of medicinal products must however satisfy cumulative requirements which make it impossible in practice for pharmacies in other Member States to supply them to a hospital on a regular basis, given that certain duties stipulated under the contract are capable of being fulfilled only by pharmacies established in the vicinity of the hospital which is to be supplied.

According to the case-law of the Court, national provisions restricting or prohibiting certain selling arrangements do not fall under Article 28 EC provided that two requirements are met: first, the provisions concerned must apply to all affected traders operating within the national territory and, second, they should affect the marketing of domestic products and those from other Member States in the same manner, in law and in fact. In this case only the first condition is however met, whereas domestic and foreign products are not affected in the same manner, in law and in fact, by the legislative requirement that all duties under the contract be met by a single supplier. This rule impedes access to the market more for foreign goods than for domestic products. In that regard it is immaterial according to the case-law of the Court that domestic pharmacies which are not situated in the vicinity of the hospital are also confronted by the same problems. A national provision which does not favour all domestic products and which also adversely affects domestic and not only foreign products is still capable of being regarded as a restriction on trade between Member States.

Restrictions on intra-Community trade may be justified on overriding grounds of public interest, in particular relating to public security or public health requirements. The national rules in question should be suitable, necessary and proportionate. There is no requirement on grounds of public health for the bundling mandated by national legislation of the contractual duties referred to. It should on the contrary be possible for a pharmacy situated at some greater distance from the hospital which is to be supplied and also in another Member State to supply it with medicinal products on a regular basis.