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Case detail



Directive article National ID I ZR 193/07
Country Germany Decision date 09/09/2010
Common name UNSER DANKESCHÖN FÜR SIE Decision type Supreme court decision
Court Bundesgerichtshof - BGH (Karlsruhe) Plaintiff(s) Zentrale zur Bekämpfung des unlauteren Wettbewerbs e.v. (Registered Association for the fight against unfair competition)
Court translation Federal Court of Justice (Karlsruhe) Defendant(s) Pharmacy - name not disclosed
Subject Scope of the UCP Directive – Full harmonisation
Keywords health and safetyinternal marketpharmaceuticalsprice reductionsvouchers

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Headnote

Granting bonus points on price-fixed pharmaceuticals violates German medical law, and can be prohibited, even when such a system would be allowed in other Member States. From the perspective of the UCP Directive, health interests can justify differences in national competition rules.

Facts

A pharmacy issued vouchers in the amount of 5 EUR for each purchase of price-fixed  pharmaceuticals, which the customers could redeem with their next purchase of non-prescription products.

The plaintiff requested the defendant to terminate the awarding of bonus points. In the decision in first instance (Landgericht Schweinfurt - 5 HKO 30/60), the court had granted the plaintiff's request, whereas in the decision in second instance (Oberlandesgericht Bamberg - 3 U 24/07), the court had declined the plaintiff's request.

Legal issue

Does a reward system for purchasing price-fixed pharmaceuticals violate the price-fixing principle for prescription drugs?

Decision

 

The court considered that awarding vouchers for the purchase of price-fixed pharmaceuticals infringes § 78 para. 2 and para. 3 of the German Medicines Law (AMG) and § 1 para. 1 and 4, § 3 of the Medicines Price Regulation Ordinance (AMPreisV), which constitute market behaviour rules in the sense of § 4 Nr. 11 of the German Unfair Competition Act (UWG). (Note: according to this §4 Nr. 11, the violation of a market behaviour rule is considered an unfair act.)

The court found that the behaviour of the defendant constitutes a commercial practice according to § 2 I Nr. 1 UWG.

§ 4 Nr. 11 UWG has not been amended when the UCP Directive was implemented in German law, but is still applicable, as article 4 of the UCP Directive only imposes a full harmonisation with respect to commercial practices as far as the economic interests of consumers are impaired. According to article 3.3 of the UCP Directive the national laws with respect to health and security remain unaffected thereby.    

The applicability of § 4 Nr. 11 UWG therefore complies with the UCP Directive as long as market behaviour rules concern the protection of health and security of consumers.

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Result

The plaintiff's request was granted.

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