Keywords
Summary

Keywords

1. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Definition — Prohibition on the sale by mail order of medicinal products the sale of which is restricted to pharmacies — Whether included — Justification limited to medicinal products subject to prescription — Reimportation of medicinal products into the Member State concerned — Not relevant — (Arts 28 EC and 30 EC )

2. Approximation of laws — Proprietary medicinal products — Advertising — Prohibition on advertising the sale by mail order of medicinal products the sale of which is restricted to pharmacies — Permissible only in respect of medicinal products subject to prescription — (Directive 2001/83/EC of the European Parliament and of the Council, Art. 88 )

Summary

1. Commercial rules which govern the arrangements for the sale of products constitute measures of equivalent effect for the purposes of Article 28 EC if they do not apply to all relevant traders operating in national territory and if they do not affect in the same manner, in law and in fact, the marketing of both domestic products and those from other Member States.

A national prohibition on the sale by mail order of medicinal products the sale of which is restricted to pharmacies in the Member State concerned is in that regard a measure having an effect equivalent to a quantitative restriction where the prohibition has a greater impact on pharmacies established outside the national territory and could impede access to the market for products from other Member States more than it impedes access for domestic products.

Article 30 EC may, however, be relied on to justify such a national prohibition on the sale by mail order of medicinal products in so far as the prohibition covers medicinal products subject to prescription. Given that there may be risks attaching to the use of these medicinal products, the need to be able to check effectively and responsibly the authenticity of doctors' prescriptions and to ensure that the medicine is handed over either to the customer himself, or to a person to whom its collection has been entrusted by the customer, is such as to justify a prohibition on mail-order sales. However, Article 30 EC cannot be relied on to justify an absolute prohibition on the sale by mail order of medicinal products which are not subject to prescription in the Member State concerned.

Those findings do not need to be assessed differently where medicinal products are imported into a Member State in which they are authorised, having been previously obtained by a pharmacy in another Member State from a wholesaler in the importing Member State.

see paras 68, 74, 76, 112, 119, 124, 134, operative part 1

2. Article 88(1) of Directive 2001/83 on the Community code relating to medicinal products for human use, which prohibits advertising for prescription medicines, precludes a national prohibition on advertising the sale by mail order of medicinal products which may be supplied only in pharmacies in the Member State concerned in so far as the prohibition covers medicinal products which are not subject to prescription.

Article 88(2) of the Community Code, which allows medicinal products not subject to prescription to be advertised to the general public, cannot be interpreted as precluding advertising for the sale by mail order of medicines on the basis of the alleged need for a pharmacist to be physically present, since the prohibition on the sale by mail order cannot itself be justified, in relation to non-prescription medicines, by that alleged need.

see paras 143-144, 148, operative part 2