OVG Münster: Medicinal law also prohibits gifts to a small extent
Pharmacies are not allowed to give any gifts or discounts to redeem a prescription. Also a pair of soft socks or a roll of wrapping paper are a “monetary advantage” for price-restricted medicines, judged on Friday, September 8, 2017, the Higher Administrative Court (OVG) North Rhine-Westphalia in Münster (Az .: 13 A 2979/15 and 13 A 3027/15).
Two pharmacists from the Coesfeld district wanted to attract customers to their pharmacies in 2013 and 2014 with vouchers. “When submitting a prescription”, customers should receive a pair of cozy socks or a roll of wrapping paper.
The Apothekerkammer Westfalen-Lippe saw this as a violation of the fixed price for prescription drugs and prohibited the vouchers.
The pharmacists complained against this. The Federal Court of Justice (BGH) in Karlsruhe allowed “low-value gifts” with a value of up to one euro (judgments of September 9, 2010, file number: I ZR 193/07 and I ZR 98/08).
As early as 2012, the state professional court for health care professions at the Rhineland-Palatinate Higher Administrative Court in Koblenz pointed out that this is only a competition law perspective; In terms of professional law, discounts and gifts are generally prohibited for price-related medicinal products (judgment of October 8, 2012, file number: LBG-H A 10353/12; JurAgentur announcement of October 15, 2012).
According to the judgments of the OVG Münster, drug price fixing is also legally binding. Pharmaceutical law knows "no trivial limit for permissible deviations". It does not matter that the value of the gifts here is less than 50 cents each.
The fixed price is also constitutional because it serves a uniform supply of pharmaceuticals throughout Germany.
The fact that the price fixing according to a judgment of the European Court of Justice (ECJ) in Luxembourg does not apply to mail order pharmacies in other EU countries (judgment and JurAgentur notification of October 19, 2016, ref .: C-148/15), does not change anything. The resulting competitive advantage for foreign mail-order pharmacies had "not yet had a serious impact on domestic pharmacies". It is up to the legislator to decide whether, when and how he wants to react "in order to eliminate national discrimination but still guarantee the nationwide supply of medicines to the population".
In any case, the pharmacy chambers are not required to refrain from taking measures in the event of violations of the fixed price for pharmaceuticals, the OVG Münster judged
In contrast, the Braunschweig Administrative Court in 2012 rejected a penalty payment from the Lower Saxony Pharmacy Chamber. Here the pharmacy had spent “Apotheken-Taler” worth 50 cents per prescription. Strictly speaking, this violates price fixing, but this is offset by the pharmacist's entrepreneurial freedom of decision granted by the BGH. The pharmacists' chambers would have to reconcile both in a “discretionary decision” and therefore tolerate small bonuses (judgment of May 23, 2012, ref .: 5 A 34/11; JurAgentur announcement of July 3, 2012). mwo