ECJ Allows National Restrictions on Pharmaceutical Advertising

Mar 28, 2025 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has ruled that Member States may, under certain conditions, allow or prohibit advertising for the purchase of prescription medicines.

The case arose from a complaint by a Dutch mail-order pharmacy which offered various discount promotions on prescription medicines in Germany. These included direct price reductions, rebates, and vouchers for the purchase of non-prescription medicines and health products. The Apothekerkammer Nordrhein (North Rhine Chamber of Pharmacists) requested that these promotions be prohibited.

However, as most of these injunctions were subsequently overturned, the mail-order pharmacy sought EUR 18.5 million in damages from the Chamber of Pharmacists before German courts.

The German Federal Court of Justice (Bundesgerichtshof) has now asked the ECJ whether a German law which allows advertising by means of discounts and payments of a certain amount, while prohibiting other forms of advertising, is compatible with Directive 2001/83 on medicinal products for human use.

As part of a complete harmonisation of the advertising of medicinal products, the EU Directive requires Member States to prohibit public advertising of prescription-only medicines. On the other hand, public advertising of non-prescription medicines is allowed under certain conditions and restrictions. However, not every advertising campaign for non-prescription medicines automatically falls within the scope of the Directive. For it to apply, such a campaign must be aimed at promoting the prescription, supply, sale, or consumption of medicinal products. If this is not the case, the Directive does not apply.

The ECJ has clarified:

Member States may allow discounts or rebates for the purchase of unspecified prescription medicines. Such promotions only affect the choice of pharmacy and not the consumption of the medicines themselves. Therefore, this type of advertising is not covered by EU Directive 2001/83, which harmonises the advertising of medicines.

Coupons for non-prescription medicines or health products may be banned. Such offers could induce consumers to buy medicines without medical necessity, which is what the Directive seeks to prevent.

ECJ C-517/23 (27 February 2025)