Free transport service of an eye clinic inadmissible?

Is an eye clinic permitted to offer a free transport service for its patients? Or does this violate the medicinal products advertising law prohibition on promotional gifts? The Federal Court of Justice (BGH) has addressed this question.

The operator of an eye clinic offers a free transport service in which patients who must visit the eye clinic for diagnostics or surgery are taken to the eye clinic for treatment and brought back home after treatment.

An ophthalmologist who operates his eye clinic department in this eye clinic and also performs inpatient eye surgery sought to obtain a court order via his lawsuit prohibiting the clinic operator from providing this transport service.

The lawsuit was successful before the competent Regional Court (LG). The clinic operator's appeal resulted in the dismissal of the lawsuit.

Decision of the court

By judgment of 12.02.2015 – Az. I ZR 213/13 (Press release) the First Civil Senate of the Federal Court of Justice (BGH), which is also responsible for competition law, has decided that a free transport service of an eye clinic for patients may violate the medicinal products advertising law prohibition on promotional gifts.

The Federal Court of Justice (BGH) has assumed that the disputed offer constitutes advertising related to specific services, which falls under the general prohibition of promotional gifts governed in the Medicinal Products Advertising Act (HWG).

There is a risk of improper influence on the consumer, because it cannot be excluded that patients may decide on treatment by the defendant eye clinic not with regard to the quality of the medical service, but because of the offered transport service.

Furthermore, the Federal Court of Justice (BGH) states that the transport service does not constitute a 'minor trifle' permissible under the HWG, because the pick-up and return transport of the patient over a longer distance represents a not insignificant asset value for him.

The Federal Court of Justice (BGH) therefore set aside the appellate judgment and remitted the matter to the court of first instance.

Conclusion

In the reopened appellate proceedings, the appellate court will now have to determine whether the disputed transport service may constitute an 'ordinary ancillary service' exceptionally permissible under the HWG. As 'ordinary' within the meaning of the HWG applies in particular a partial or complete reimbursement or assumption of transport costs for means of public passenger transport, which is appropriate in relation to the value of the goods or service and which is incurred in connection with the visit to the business premises or the place where the service is provided. Whether the transport service offered by the eye clinic can also be subsumed under this is now to be decided by the judges of the Higher Regional Court Cologne (OLG Köln).