European Commission

 

Case detail



Directive article National ID I ZR 160/07
Country Germany Decision date 12/02/2009
Common name Douglastaler Decision type Court decision in appeal
Court Oberlandesgericht Karlsruhe Plaintiff(s) Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. (Registered Association for the fight against unfair competition)
Court translation Higher Regional Court 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, the health interests can justify differences in national competition rules.

Facts

A pharmacy issued bonus points for each purchase of price-fixed  pharmaceuticals. The customers could redeem these bonus points at their next purchase of non-prescription products. The plaintiff requested to terminate the awarding of bonus points.

Legal issue

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

Decision

 

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

The internal market clause of article 4 of the UCP Directive does not preclude the application of § 78 AMG and §§ 1,3 AMPreisV, even if the defendant claims that the use of bonus point systems is allowed in other countries of the European Union. From the perspective of the UCP Directive, the interests of health can justify differences in national competition rules.

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Result

The plaintiff's request was granted.

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