Pharmacy collection model for prescription medicines

In the view of the Higher Regional Court of Munich (OLG München), the ordering of prescription medicines which were ordered in a German pharmacy and delivered via a Dutch pharmacy is unlawful and must therefore be discontinued.

A Bavarian pharmacist had participated in the pharmacy collection model "Vorteil24" (which has since been discontinued). This model provided that prescription medicinesmedicineswere not supplied directly from the inventory of the German pharmacy, but rather the German pharmacy would order them from a Dutch pharmacy. The Dutch pharmacy would then deliver the ordered prescription medicine to the German pharmacy, where the customer could conveniently collect it (usually the next day).

In return, the customer received discounts on their co-payment or a merchandise voucher. The advantage for the pharmacist participating in the model was a turnover-dependent commission for mediating orders to the Dutch pharmacy.

Court's decision

By judgment of 26.06.2014 – Az. 29 U 800/13, the OLG München declared this collection model to be anti-competitive and ordered the Bavarian pharmacist to cease and desist.

The OLG München came to the conclusion, on the one hand, that the pharmaceutical price regulations also apply where a Dutch pharmacy supplies consumers not directly but through the intermediation of a German pharmacy.

Thus the judgment corresponds to the most recent case law of the Federal Court of Justice (BGH), which, byjudgment of 26.02.2014 – I ZR 77/09decided that such a construction constitutes an unlawful circumvention of German pharmaceutical price law.

Furthermore, in the present decision the OLG München stated that the freedom of decision of the participating pharmacists was inappropriately influenced in an non-objective manner through their participation in the model and therefore constituted a violation ofcompetition lawA pharmacist is subject to the special duty to safeguard (also) the interests of his customers. However, financial incentives such as commissions are suitable to breach this duty to safeguard interests.

Given that it would be economically more favourable for the German pharmacist to refer the customer to the Dutch pharmacy than to dispense the required medicine from his own inventory, the OLG München held that there is a risk that the pharmacist might in individual cases neglect the health interests of his customer and, with regard to the financial advantage, refer to the collection model.

Conclusion

The principles established in this decision by the OLG München demonstrate, in line with the case law of the Federal Court of Justice (BGH), that above all in the healthcare sector, which requires the protection of (also) the interests of customers or patients, limits must be set on the influence of third parties on the independence of German pharmacists.