The European Court of Justice is expected to deliver a ruling in the spring of 2025 regarding the classification of prescription drug discounts as a purchase incentive. The current Advocate General’s opinion serves as a non-binding assessment for the judges of the Fifth Chamber. It is uncertain whether they will follow the Advocate General’s proposal. The EU Commission argued that the categorization of specific advertising measures should be left to national courts to determine potential purchase incentives related to medications. It was highlighted that vouchers could potentially encourage repeat purchases. Additionally, it was noted that promotional activities targeting patients should be legally distinguished from purely factual price information.
The issue of the influence of prescribing physicians on their professional ethics raises questions about the claimed impartiality by the Advocate General. The emergence of online “prescription platforms” demonstrates that prescription issuance is not always rigorously monitored and may be influenced by sales interests. If the European Court of Justice were to apply fundamental freedoms rather than the Pharmaceutical Directive as a benchmark, the German Federal Court would need to consider the recent developments in the national pricing regulations. The German legislature has shifted from pharmaceutical to social law in the Pharmacy Strengthening Act (VOASG) while largely reaffirming price controls.
Moreover, the Higher Regional Court (OLG) in Munich ruled that the previous pharmaceutical price regulations could be justified under EU law based on criteria established by the European Court of Justice in 2016. This case is currently under review by the Federal Court of Justice (BGH). It is evident that the current Advocate General’s opinions may not be conclusive on this complex issue. The evolving landscape of prescription drug marketing and pricing regulations necessitates a comprehensive legal examination to ensure consumer protection and fair competition in the pharmaceutical industry.