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March 2018

On 7 February 2018 the German political parties CDU, CSU and SPD agreed to form the new German government by concluding a coalition agreement. One important provision of this agreement contains the announcement of strengthening the local pharmacies by banning the mail-order of prescription-only medicinal products (RX medicinal products).

The reason for this ban is the judgment of the Court of Justice of the European Union dated 19 October 2016 (ref.: C-148/15). The Court stated that price maintenance for RX medicinal products can be considered as a restriction on the free movement of goods in terms of Article 34 TFEU in relation to mail-order pharmacies located in other Member States of the European Union. As a result, these foreign pharmacies are, in principle, no longer bound by the price maintenance for Rx medicinal products.

The misbalance between the foreign mail-order pharmacies and the German pharmacies which are still bound by the price maintenance for Rx medicinal products are the subject of intensive discussions in Germany in view of the issue that particularly pharmacies in the country which are less profitable might not be in the position to stay in competition with the foreign mail-order pharmacies. The German courts also dealt with this issue (cf. Federal Court of Justice, judgement of 24 November 2016, ref.: I ZR 163/15).

In any event, a mail-order ban for Rx medicinal products as provided for by the coalition agreement would not be free from legal concerns and subject of further discussions as well as legal disputes as it might not comply with the law of the European Union.

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