German Federal Court Challenges DocMorris Business Model in Pharmaceutical Sales Dispute
The German Federal Court of Justice (BGH) has intensified the ongoing legal dispute surrounding the business practices of DocMorris, one of Europe's largest online pharmacies. The court has partially overturned a previous ruling by the Higher Regional Court of Düsseldorf (OLG) and mandated a renewed assessment of crucial points in the case, highlighting significant questions regarding the legality of pharmaceutical distribution models across European borders.
The central issue relates to several interim injunctions secured by the North Rhine Chamber of Pharmacists (AKNR) between 2012 and 2015, which targeted DocMorris's promotional campaigns that included discounts and vouchers for prescription medication. DocMorris contested these actions, seeking compensation on the grounds that restrictions had become obsolete following a 2016 European Court of Justice (ECJ) decision. This ECJ ruling invalidated Germany's fixed pricing on prescription drugs for EU-based mail-order pharmacies, arguing that such restrictions violated European Union principles of free movement of goods.
DocMorris's damages claims, at times reaching approximately 18 million euros, were largely dismissed by various courts. The BGH upheld three of the injunctions as legitimate, while two others were returned to the OLG Düsseldorf for further review. The aspects under renewed scrutiny involve bans on a 10-euro travel cost reimbursement for submitting prescriptions (2013) and a 5-euro discount for prescription orders (2015). The legal crux lies in whether such rebates, under previous price regulations, were permissible for foreign mail-order pharmacies, and whether German law could enforce these restrictions on cross-border operations.
The BGH's latest reasoning introduces a new legal dimension: the so-called 'transfer ban' as defined in Section 73 of the German Medicines Act (AMG). This regulation prohibits the dispatch of prescription medications from abroad to patients in Germany unless certain criteria are met. While the OLG previously relied on an official list from the Federal Ministry of Health, which deems Dutch pharmacy standards equivalent to those in Germany, the BGH found this approach insufficient to clear DocMorris of allegations that it operated solely as a 'border pharmacy' serving non-local patients.
According to Dutch law, pharmacies that deliver exclusively to patients residing in another EU member state must adhere to the pharmaceutical regulations of the patient's home country. DocMorris had cited administrative notifications to local Dutch authorities as evidence of compliance. However, the BGH determined that the OLG should have independently examined whether DocMorris's business model truly qualified under Dutch and German legal requirements for dispensing prescription medications to German patients. The BGH emphasized that as a court of last resort, it does not establish facts but ensures legal correctness. The case is now remanded to Düsseldorf for comprehensive fact-finding and legal evaluation.
This ruling has significant implications for the future of online pharmaceutical distribution within the European Union. The outcome could set a precedent for how national laws apply to cross-border pharmacy operations, particularly regarding discount practices and compliance with local healthcare regulations. The legal proceedings underscore the ongoing tension between EU market freedoms and national regulatory frameworks in the healthcare sector.
As the OLG Düsseldorf re-examines the facts, the broader debate on the balance between consumer access, competition, and patient safety in pharmaceutical supply continues to evolve. Industry observers and stakeholders across Europe are closely monitoring the case, recognizing its potential to reshape the online pharmacy market and the regulatory landscape for cross-border healthcare services.