Federal Court of Justice (BGH) decision: Former pharmaceutical price binding cannot be applied to EU mail-order pharmacies – mail-order pharmacies are permitted to grant bonuses

BGH on former pharmaceutical price binding – no injunction claim against foreign mail-order pharmacies on account of bonuses!

How is pharmaceutical price binding connected with the EU?

By judgment of17. Juli 2025(Az.I ZR 74/24), of which only apress release of the courtis available so far, theFederal Court of Justice (BGH)has issued a long-awaited decision on pharmaceutical price binding. At the centre of the case was the question of whether mail-order pharmacies established inanother EU Member Stateare bound by theGerman pricing provisionsfor prescription-only medicinal products – in particular when they grant German patientsbonusesorincentives.

Clear statement by the BGH: Theold pharmaceutical price binding pursuant to § 78 AMG a.F.isnot applicable to foreign EU mail-order pharmacies–on account of infringement of the free movement of goods pursuant to Art. 34 AEUV.

Background of the case

A Bavarian pharmacists' association sueda Dutch mail-order pharmacywhich in the years 2012 and 2013 offered patients bonus payments of up to €9 per prescription when redeeming prescriptions. The patients received the bonus either as adirect price reductionor as anincentive for a medication check.

The association considered thisanticompetitiveas such bonuses violated German pharmaceutical price binding. Before the Regional Court (LG) Munich I and the Higher Regional Court (OLG) Munich, it initially succeeded – but the BGH has now overturned these decisions.

The decision in detail

The First Civil Senate of the BGH responsible for competition law first clarified:
The grant of bonuses would haveformallyinfringed the then applicable price binding provisions (§ 78 AMG a.F., AMPreisV).
Howeverthese provisions arenot applicableto mail-order pharmacies established in another EU Member State,because they infringe Art. 34 AEUV(prohibition of quantitative restrictions on imports).

The BGH expressly refers to the decision of theCourt of Justice of the European Union (EuGH) in the case 'Deutsche Parkinson Vereinigung'(Judgment of 19.10.2016 – C-148/15). In that case, the Court of Justice of the European Union (EuGH) had established that the German price bindingconstitutes an impermissible restriction on the free movement of goodsinsofar as it applies to foreign pharmacies.

Also in the present case, the plaintiff failed to demonstrate empirically that price binding was necessary to ensurenationwide, secure pharmaceutical supplyNeither studies nor expert opinions provided reliable evidence for the period in question – an infringement of Art. 34 AEUV therefore exists.

Legal consequences

The judgment concerns the legal position valid until 14 December 2020 (§ 78 AMG a.F.) on pharmaceutical price binding. Since then,new regulation of § 129 Abs. 3 Satz 3 SGB V, introduced by the Vor-Ort-Apotheken-Stärkungsgesetz (VOASG).

This provision reads as follows:

"Pharmacies to which the framework agreement has legal effect, […] shall not grant any benefits to insured persons."

Thus, for insured persons of the statutory health insurance funds (GKV), a bonus ban applies today – however, it remains unclear whether this regulation is also compatible with EU law vis-à-vis mail-order pharmacies based outside the EU.

For Articles 34 and 36 TFEU continue to require that restrictions on the free movement of goods be proportionate. Whether the new provision of SGB V meets this criterion – for instance by means of reliable data on supply security – has so far been reviewed neither by the Court of Justice of the European Union (EuGH) nor by the Federal Court of Justice (BGH).

It thus remains legally unclear whether the new § 129 Abs. 3 SGB V would withstand cross-border mail-order trading with pharmacies in the European Union. We will continue to monitor further developments in this matter.

Recommendations from AVANTCORE Rechtsanwälte

For mail-order pharmacies, pharmaceutical wholesalers, pharmacy cooperatives or health platforms with EU involvement, important consequences arise from this judgment:

• Greater legal certainty for EU mailers regarding legacy claims
• Options for bonus and customer loyalty models to be examined and structured in a legally compliant manner
• Current provisions of SGB V and the framework agreement to be critically assessed for compatibility with EU law
• Defence in ongoing competition law proceedings regarding past infringements with new Federal Court of Justice (BGH) case law

Do you operate in cross-border pharmaceutical distribution or run a mail-order pharmacy?
Our law firm pharmaceutical law and competition law specialising in AVANTCORE Rechtsanwälte in Stuttgart supports you with legally compliant structuring of distribution models, defence against competition law claims and examination of EU law risks.

Contact us – we advise you comprehensively and with practical orientation.

Note:
This article is based on the Pressemitteilung Nr. 134/2025 des Bundesgerichtshofs dated 17.07.2025. The full reasoned judgment is still pending.