The Legal 500

Twitter Logo Youtube Circle Icon LinkedIn Icon

GRP Rainer LLP

AUGUSTINERSTRAĂźE 10, 50667 COLOGNE, GERMANY
Tel:
Work +49 221 272 27 50
Fax:
Fax +49 221 272 27 52 4
Email:
Web:
www.grprainer.com
Berlin, Bonn, Cologne, Dusseldorf, Frankfurt, Hamburg and 3 more

Show all Press releases

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

November 2017

Pharmacies are not allowed to offer their customers promotional gifts when the latter are purchasing prescription medicinal products. That was the verdict of the Oberverwaltungsgericht (OVG) NRW, North Rhine-Westphalia’s Higher Administrative Court, in two rulings from September 8, 2017.

Consumers in Germany are accustomed to prescription pharmaceuticals being the same price in every pharmacy. We at the commercial law firm GRP Rainer Rechtsanwälte note that German pharmacies are not allowed to deviate from this pharmaceutical pricing regulation and therefore cannot grant price reductions or discounts in the case of prescription or other fixed-price medicinal products or promote these products on this basis. Moreover, the uniform selling price cannot be circumvented by having the customers receive vouchers or other material assets when purchasing medications. That was he verdict of the Oberverwaltungsgericht NRW in two judgments from September 8, 2017 (Az.: 13 A 2979/15 and 13 A 3027/15).

Both rulings stem from the following set of facts: Two pharmacists had promoted vouchers that could be redeemed by submitting a prescription. After presenting the voucher, the customers would receive a pair of cosy socks or wrapping paper. The competent pharmaceutical society viewed this as a violation of the pricing controls for prescription medicinal products and prohibited these types of vouchers from being issued. The legal action brought by the pharmacists against this decision was unsuccessful.

The OVG held that the promised non-cash benefits such as the cosy socks and wrapping paper gave consumers the impression that the medication was cheaper in these pharmacies than in others. This was a violation of the pharmaceutical pricing regulation, as customers were receiving everyday goods for redeeming the voucher. The Court went on to say that the fact that these were material assets of little value was insignificant, because no de minimis limit applies to the price controls.

The OVG also noted that a ruling of the Court of Justice of the European Union finding that these price-fixing regulations do not apply to foreign mail-order pharmacies does not affect the price controls. The Court clarified that this competitive advantage that foreign mail-order pharmacies have has yet to seriously impact domestic pharmacies negatively.

There is often a fine line that needs to be tread when it comes to advertising for pharmacies as well as other health organisations. Violations of competition law can be met with severe penalties. Lawyers who are experienced in the field of industrial property can offer advice and take appropriate legal measures in the event of violations.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

Legal Developments by:
GRP Rainer LLP

Legal Developments in Germany

Legal Developments and updates from the leading lawyers in each jurisdiction. To contribute, send an email request to
  • LAG DĂĽsseldorf: Dismissal with immediate effect valid in response to threat

    Anyone who seriously threatens their employer or superior should expect to be dismissed with immediate effect. This was confirmed by a ruling of the Landesarbeitsgericht (LAG) DĂĽsseldorf [Regional Labour Court of DĂĽsseldorf] from June 8, 2017 (Az.: 11 Sa 823/16).
  • Tax evasion: Only voluntary disclosure affords protection from severe penalties

    Anyone who has been caught for tax evasion should expect to be faced with severe penalties. Voluntary disclosure is the only way of returning to a state of normal tax affairs and avoiding penalties.
  • GSK Update: AIFM Marketing in Germany - The clock is ticking for U.S. and other non-EU fund managers

    Our GSK Update informs about the impact of recent German investment fund legislation (UCITS V Implementation Act) for AIF managers, who are not domiciled in the EU (“non-EU-AIFM”) and who seek to market AIF shares in Germany in accordance with applicable German investment fund law under the EU-AIFM Directive (2011/61/EU).
  • GSK expands Luxembourg presence with a new tax partner

    Opened at the beginning of March 2016, GSK Stockmann + Kollegen continues to expand its Luxembourg office. Mathilde Ostertag recently joined the Luxembourg team of Equity Partners Dr. Marcus Peter, Andreas Heinzmann and Dr. Philipp Mößner as Local Tax Partner.
  • EIA - Strengthening the role of the public

    Among other things, the recent amendment to the Environmental Impact Assessment Act has broadened the rights of (what is termed) the "affected public". The affected public consists primarily of various citizens' initiatives pursuing environmental or public-health purposes. It may for instance file an appeal against a negative decision at the screening stage (i.e., a decision according to which the given project does not require the issuance of an EIA report), and seek its annulment in court. The affected public has been granted a stronger voice also in subsequent procedures in which the fate of a building project is being decided: zoning proceedings and the proceedings on the issuance of a building permit. Taken together, these legislative changes may make it more difficult to implement projects which require an EIA report; in particular, the length of permission proceedings may be substantially extended.
  • New Top Level Domains – Noerr expert warns against trademark infringements

    On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN) published the names of those who have applied for a new top level domain the ending of which may be geographic, such as "munich", industry identification such as "insurance" and even all trademark names and company descriptions such as "canon" and "adidas".
    - Noerr
  • No obligation to set up filtering systems in order to prevent copyright violations

    ECJ, decision of February 16th, 2012, ref. C-360/10 – SABAM
  • Further ECJ Ruling concerning NGO’s right of action under German environmental law

    For the second time within a short period of time, the non-governmental organisations right to challenge administrative decisions under German law is going to be subject to the jurisdiction of the European Court of Justice (ECJ). In January 2012, the German Supreme Administrative Court (Bundesverwaltungsgericht) referred a case to the ECJ for a preliminary ruling concerning the NGO’s right of action.
  • Lessons in Cross-Border M & A Transactions

    The fundamental advice for international business transactions is obvious and easy to understand: different countries have different laws, business habits and cultures. These differences may range from minor nuances, such as lengthy French business lunches or unusual Spanish office hours, to significant legal roadblocks, such as strict European employment laws.
  • Priority rental rights in insolvency

    Parties to rental contracts for commercial premises often agree priority rental rights. In practice, this concept is used to cover a whole series of legal structures. These range from fixed options for the tenant to a promise made by the landlord as a business policy that if any additional premises become available, they will be offered to the tenant. In 2010 the Berlin Court of Appeal issued a ruling on such priority rental rights in insolvency; the decision has recently been published.