by Hélène Mauduit
BERLIN, Oct 19 (APM) - Germany's uniform pricing for prescription-only drugs, which forbids cheaper prices from foreign-based mail order pharmacies, is contrary to European legislation, the European Court of Justice (ECJ) concluded on Wednesday.
The German legislation which imposes a "uniform retail price" for pharmacies constitutes an unjustified restriction of the free movement of goods, ruled the Court, following conclusions from the advocate general given in June (APMMA 48126).
"The imposition of fixed sales prices has a greater impact on pharmacies established in other member states, a fact which could impede access to the German market for products from other member states more than it impedes access for domestic products," said the Court in its ruling.
The case was taken to the ECJ by the higher regional court of Düsseldorf in light of a case involving self-help organisation the German Parkinson Association (DPV). The Düsseldorf court will have to take ECJ's ruling into account in its coming judgement.
In July 2009, DPV had promoted Dutch mail order pharmacy DocMorris's discount system for certain prescription-only Parkinson's disease medicines available only through pharmacies.
A German association combating unfair competition (ZBW) considered the promotion as unfair, as the discount system was contrary to the "uniform retail price" to be observed by pharmacies in Germany.
The uniform retail price appears in paragraph 78 of the German law on medicinal products (AMG) and the regulation on the pricing of medicinal products (Arzneimittelpreisverordnung).
"For foreign pharmacies, sale by mail order constitutes a more important - if not the only - means of accessing the German market directly," ruled the ECJ.
For mail-order pharmacies, "price competition is liable to constitute a more significant factor of competition than for traditional pharmacies," the ECJ said. Traditional pharmacies are "better placed to offer patients individually-tailored advice provided by dispensary staff and to ensure the supply of medicinal products in cases of emergency".
The ECJ considered that it has not been demonstrated how setting fixed prices makes it possible to ensure a better geographical distribution of traditional pharmacies in Germany.
"On the contrary", it said, increased price competition between pharmacies could "encourage the establishment of pharmacies" in regions where there is a deficit, since they could then charge higher prices.
No evidence has been provided that the competition of mail order pharmacies would lead to a "consequential fall in the number of dispensing pharmacies in Germany" and would endanger essential services such as emergency care, the ECJ said.
Offering patients individually-tailored advice provided by dispensary staff is a competition factor that "could potentially allow traditional pharmacies to remain competitive".
Price competition would also benefit patients because it would allow "more attractive prices than those currently imposed" for prescription-only medicinal products, the ECJ ruled.
DocMorris CEO Olaf Heinrich welcomed the ruling. "DocMorris has always stood for more competition in the pharmacy market," he said in a statement.
DocMorris has "always given bonuses to (its) customers at the expense of (its) own margin" and will continue to do so.
"Chronically ill people with high and regular drug requirements are thus spared several hundred euros annually. Patients save money, and there is no burden on the health system," Heinrich said.
In response to the ruling, the association of German pharmacists (ABDA) asked lawmakers to ban mail order pharmacies in Germany.
"It is clear that the German regulation on the pricing of medicinal products continues to apply," said ABDA chair Friedemann Schmidt in a press release.
The ECJ "has undermined the clear will of the German legislator and negated the decisions of the highest German courts" and has "revised its long-standing jurisprudence on the latitude of EU member states in health care legislation", he said
"German lawmakers must restore their own scope for action" and may vote "a ban on mail order sales of prescription medicines in Germany", which is allowed under European legislation.
"It is worth considering a ban of mail order pharmacies in Germany," said the health spokeswoman for the conservative CDU party, Maria Michalk, in a short statement.
Pharmacists must not suffer from any "competitive disadvantages" due to the ECJ ruling, she added.
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