An Amazon for pharmaceuticals is not lawfully
In its judgement (decision of 8.12.2022 – 13 O 17/22 KfH), the Regional Court of Karlsruhe ruled that the provision of an online platform for pharmacies is not permitted, if the marketplace operator charges pharmacies a basic fee or a transaction fee. The court granted the pharmacy association, acting as plaintiff, the right to prohibit the operation of such an online marketplace.
Online marketplaces are convenient. And thus also very popular. Hardly anyone can claim never to have bought a product via Amazon or E-Bay. Therefore, the idea – to provide online marketplaces offering health products and services as well – seems quite obvious. Especially in view of the gradual introduction of the e-prescription in Germany, which has already been initiated on 1 September 2022, providing an online marketplace for pharmacies sounds more like a necessity than an innovation.
However, this should not be done on any terms, according to the Karlsruhe Regional Court. In the present case, the plaintiff intended to charge a monthly basic fee for use of its platform as well as 10 % of the net sales price for products that were not purchased on a prescription. The Chamber of Pharmacies had issued a warning to the plaintiff and demanded that it cease and desist from this construct.
The Karlsruhe Regional Court gave the Chamber of Pharmacies the right to demand that the marketplace operator cease and desist. The decision is based on §§ 8, 3a UWG in conjunction with § 11 para. § 11 para 1a ApoG. The judges ruled that the marketplace operator acted unfairly because it brokered prescriptions to pharmacies and accepted or was promised an advantage in return.
According to the judges, the decisive factor is that the online marketplace operator can display the products and services in a self-selected order to a buyer who enters a search term. Through this, the marketplace operator would “broker prescriptions”. For this service, the marketplace operators contractually insured the payment of the basic fee, which violates Section 11 (1a) ApoG.
The court’s decision was supported by the protective purpose of the provision. In this context, the judges referred to the legal justification of Section 11 (1a) ApoG and explained that the primary purpose was to protect the “general interest in ensuring a proper supply of pharmaceuticals to the public”. 1a ApoG und erläutern, dass es primär darum ginge, das „Allgemeininteresse an der Sicherstellung einer ordnungsgemäßen Versorgung der Bevölkerung mit Arzneimitteln“ zu schützen. For this purpose, a network of pharmacies close to the place of residence is necessary. This network could also be endangered if the established pharmacies were under pressure to offer the products for sale in an online marketplace. This could potentially threaten local sales.
On the other hand, paying 10% of the net purchase price of the products to the marketplace operator violates § 8 ApoG. In the second sentence of the provision, it is stated, among other things, that rental agreements based on turnover or profit sharing are not permitted. This is exactly what the court saw in the 10% agreement. According to the court, a classical rental agreement is not necessary to violate the provision. Rather, it was sufficient that the contract concluded resembled a tenancy agreement. In the contract between the pharmacies and the online marketplace operator, the judges saw a contract with elements of a rental agreement, because a digital sales space was made available. And for this, money had to be paid, which is prohibited by the norm.