Pharmacist advertising in medical practice permitted?

Operators of pharmacies may not conduct any legal transactions or agreements with physicians or other persons engaged in the treatment of diseases that have as their subject preferential supply of specific pharmaceuticals, the attraction of patients, or the assignment of prescriptions. The Federal Court of Justice (BGH) had to decide whether these regulations stemming from the Medicines Act are market conduct rules and whether advertising by pharmacies in medical practices is therefore anti-competitive.

An entrepreneur equipped medical practices under the designation 'TV-Waiting Room' with screens, which were placed in the waiting rooms of physicians. A programme was then broadcast on the televisions, which in particular also showed advertising films. The entrepreneur advertised his programme to pharmacists by telling them that they could book an advertising slot for a broadcast with a physician of the pharmacists' choice.

The Competition Association considered this to be anti-competitive, as in its view the promotion of pharmacies in medical practices violated the Medicines Act, which as a market conduct rule was suitable for materially impairing the interests of consumers and competitors.

Decision of the court

TheFederal Court of Justice (BGH) confirmed by judgment of 12.03.2015 (Az. I ZR 84/14) the lower courts insofar as it held that the provisions of the Medicines Act which prohibit legal transactions between physicians and pharmacists were indeed market conduct rules which were suitable to materially impair the interests of consumers and competitors.

However, liability as a direct perpetrator was excluded for the person who was not themselves an addressee of the professional group limited in the Medicines Act. Following the abandonment of the doctrine of indirect liability (Störerhaftung) in competition law, no unlawfulness could therefore be established against the entrepreneur and operator of the 'TV-Waiting Room' company.

However, the BGH further stated that while this meant that the entrepreneur, who is not an addressee of the Medicines Act, could initially not be pursued under competition law with any prospect of success, there was the possibility for the person who considered himself injured in his competition law protected interests to first notify the party acting of the legal position. Such a notice regularly led to the result that the recipient of the communication corrected his conduct subsequently or that, if the conduct continued, it could be assumed that the recipient was acting with intent to participate and the unreasonable party could then nonetheless be pursued.

Conclusion

Physicians and pharmacists may continue to not enter into mutually supportive contracts. As the BGH confirmed, this would also be anti-competitive. A third party may initially conclude such a transaction. However, if he is notified of the existing legal position, namely the circumstance of the prohibition on mutual promotion of physicians and pharmacists, he must nonetheless cease his unlawful advertising in order to avoid a competition law warning.