Setback for pharmacies - triumph for DocMorris?
The Federal Court of Justice (BGH) has ruled: Fixed prices for prescription drugs do not apply to foreign mail-order pharmacies - for the time being. The action brought by the Bavarian Pharmacists' Association (BAV) against DocMorris and its subsidiary Taminis was dismissed. This means that the ECJ has the last word - at least in the current case.
The ruling from Karlsruhe brings movement to an ongoing conflict between bricks-and-mortar pharmacies in Germany and large mail-order companies from other EU countries. Pharmacists see their existence threatened, while mail-order companies are celebrating the ruling as a victory for competition and freedom of choice for patients. But what does this mean in concrete terms - and was this really the final chapter?
What exactly did the BGH decide?
In its recent ruling, the BGH evaluated the old regulation of Section 78 of the German Medicinal Products Act (AMG). This was already overturned by the European Court of Justice (ECJ) in 2016 - due to a breach of EU law. However, the BAV wanted to revisit precisely this ruling. The hope: new arguments, new facts, new opportunity.
But nothing came of it. The BGH ruled dryly: The information submitted was not sufficient to shake the ECJ requirement. There was a lack of "hard facts" - such as meaningful statistics on nationwide supply or the threat posed by mail order discounts. According to the ECJ, a mere presumption or "validity test" is not sufficient. This also means that there is no risk of repetition - and without this, no claim.
Why the ruling is still only a stage victory
Despite the clear decision, the BGH leaves a door open: It was exclusively about the old legal situation. The new regulation under Section 129 SGB V, introduced after the ECJ ruling in 2016, was not reviewed in these proceedings. The presiding judge, Professor Dr. Thomas Koch, emphasized: "With new, reliable data, the debate could go back to Luxembourg.
The ball is therefore back in the politicians' court - and in the pharmacies' court. If they manage to prove with empirical evidence that price maintenance is actually essential for healthcare provision in the area, the ECJ could reconsider its assessment.
The next battle is already imminent
Anyone who thinks this is the end of the conflict is mistaken. On July 30, the BGH will decide on a claim for damages brought by DocMorris against the North Rhine Chamber of Pharmacists. The claim: 18.5 million euros - for allegedly unlawful bans on earlier advertising campaigns. Although the ECJ has clarified that Rx bonuses are not permitted across the board, the question remains: Was the mail-order company unjustly thwarted - and if so, who pays?
Mail order is not (yet) the law - but pharmacies urgently need plan B
This ruling is a classic example of how formal loopholes can prevail over substance. The BGH did not say that price fixing is generally wrong - it just said: Please provide evidence!
And this is precisely where the problem lies: pharmacies have been complaining for years about the threat posed by mail order - but have delivered too little to convince EU lawyers. Emotions are no substitute for statistics. The ECJ ruling from 2016 is therefore not unassailable - but hard arguments are finally needed, not just loud voices.
Competition yes - but not on the back of security of supply. If DocMorris & Co. are to save rural care, then they have to prove it. And if pharmacies want to survive, it's not enough just to complain - they need new, future-proof models that can withstand digital pressure.
Take the opportunity now to find out all you need to know about the implications of the BGH ruling. Book a consultation with our legal experts!
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