In principle, over-the-counter medicines can be sold in the EU via online platforms that technically bring pharmacists and customers together. The European Court of Justice (ECJ) decided this on Thursday. Accordingly, member states may not prohibit such a service on the grounds that the company in question is involved in electronic trading of medicines without a pharmacist's license. However, the portal operator is only allowed to provide “its own brokerage service that is independent of sales”. The provider – unless he is a pharmacist – is not allowed to act as a seller of non-prescription medication. Otherwise, a ban could be imposed by the EU country in which the company is based.
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The case, which has already gone through several instances, concerns the French platform Doctipharma. The publishing house Lagardère founded this in 2014 and brought together around 60 pharmacies. The portal, which has now been taken over by the Swiss pharmaceutical mail order company DocMorris, initially made it possible to purchase pharmaceutical products and medicines available without a prescription via the websites of affiliated pharmacies.
The portal operator made the goods available via a pre-saved catalog. The customer could choose medications via it. His order was then forwarded to the pharmacies whose websites Doctipharma hosted. Payment was made via a unified payment system from a designated account.
National requirements to protect public health possible
The French pharmacists' association UDGPO questioned the legality of the platform. He accused Doctipharma of participating in electronic medicine trading and thus violating national regulations. In 2016, the Paris Commercial Court found that the plaintiffs were right on all points, as the publisher ultimately took over the ordering, payment and marketing and even coordinated discount campaigns. Since then, only nutritional supplements and cosmetics have been available via the portal. The appeal court saw it differently. The dispute first went to the Court of Cassation and from there back to the Cour d'Appel de Paris, which ultimately turned to the ECJ.
In their judgment in case C-606/21, the Luxembourg judges now made it clear that Doctipharma's brokerage offer is an “information society service”. It is therefore incumbent on Member States to ensure that the offer of medicinal products to the public for distance selling takes place under certain conditions. For example, guidelines can be set to protect public health. In principle, EU countries must also ensure that interested parties can purchase suitable medicines online via such a service. Platforms such as Amazon, Apotheker.de and Gesund.de, which also bring pharmacists and potential customers together, are also likely to benefit from the decision.
(mack)