1. Background of the legal dispute
The North Rhine Chamber of Pharmacists (Apothekerkammer Nordrhein – “AKNR”) and the Dutch operator of the pharmacy platform DocMorris have been in dispute since 2021 about the permissibility of charging a monthly basic fee for using the online platform and a sales-related transaction fee for redeemed prescriptions.
a) The DocMorris business model
By concluding a partner agreement, pharmacies in private practice and online pharmacies can sell pharmacy-only but non-prescription products such as cosmetics and food supplements on the online platform. They can also offer to redeem e-prescriptions and patients can receive prescription drugs via the platform. DocMorris charges a monthly basic fee of EUR 399 for using the platform and a transaction fee of 10% on the net sales price for non-prescription (but pharmacy-only) products when an e-prescription is redeemed.
b) The accusation: violation of pharmacy law
In September 2021, AKNR issued DocMorris with a warning letter on the grounds that the platform model was inadmissible due to a breach of the prohibition on prescription brokering set out in Section 11 (1a) ApoG. In addition, the charging of a transaction fee for the redemption of e-prescriptions for pharmacy-only medicines allegedly constitutes a breach of the prohibition on third-party ownership set out in Section 8 sentence 2 ApoG, as DocMorris thereby participates in the pharmacy’s sales of non-prescription medicines.
c) From one instance to the next
DocMorris responded to the warnings with an action for a declaratory judgment before the Regional Court of Karlsruhe – and lost: the Regional Court of Karlsruhe considered the charging of the basic fee and the sales-related transaction fee be a violation of pharmacy law. It also upheld the AKNR’s counterclaim, according to which it was entitled to have such infringements prohibited under competition law (LG Karlsruhe, 08.12.2022, 13 O 17/22 KfH).
The Higher Regional Court of Karlsruhe changed this decision in favor of DocMorris in the appeal instance: the provision of a digital marketplace infrastructure, where participating pharmacies could also redeem e-prescriptions for prescription drugs in return for payment of a monthly basic fee, does not fundamentally conflict with the prohibition of prescription brokering under Section 11 (1a) ApoG. However, the 10% transaction fee charged under the partner agreements is inadmissible: the provision of the digital infrastructure for the distribution of non-prescription medicines constitutes an “other asset” within the meaning of Section 8 sentence 2 ApoG, which is provided in return for a turnover-based fee (OLG Karlsruhe, decision of 13.03.2024, 6 U 418/22). Both parties made use of the right to file for revision.
2. The ruling of the BGH
a) No violation of the prohibition of prescription brokering
The BGH confirmed the opinion of the Higher Regional Court of Karlsruhe that the operation of the internet marketplace did not constitute a breach of the prohibition on prescription brokering under Section 11 (1a) ApoG. The monthly basic fee of €399 was not promised or granted precisely for the actions in which the AKNR saw a “forwarding” or “brokering” of electronic prescriptions. There is a lack of the necessary connection relevant to the purpose of protection between the acts specified in Section 11 (1a) ApoG and the promised or granted benefit (“in exchange for”).
b) No restriction on the free choice of pharmacies
The marketplace model does not affect customers’ freedom to decide from which pharmacy they wish to obtain a prescribed medication: customers can decide for themselves which parameters they use to select a pharmacy. They are merely given an additional way to redeem electronic prescriptions.
c) No threat to the nationwide supply of pharmaceutical products
The BGH was also unable to identify a threat to the nationwide supply of medicines by pharmacies close to home, as claimed by AKNR: DocMorris offers the use of its marketplace for a monthly basic fee that is independent of turnover. This alone argues against the fact that the fee is paid precisely for the brokering of an e-prescription.
d) Illegal shareholding resulting from charging a transaction fee?
DocMorris finally prevailed with its revision, insofar as it challenged the ruling to refrain from charging the transaction fee: remuneration which – as in the case of the transaction fee – is based on the turnover or profit of individual transactions can only be regarded as being based on the turnover or profit of the pharmacy within the meaning of Section 8 sentence 2 ApoG if these are based to a significant extent on the transactions carried out in this way. Specific findings would have to be made to demonstrate that the contractual arrangement is likely to jeopardize the economic independence of the participating pharmacies. In this respect, the case was referred back to the Court of Appeal due to lack of maturity for decision.
Using the example of individual business practices of online marketplaces such as DocMorris, a shift in boundaries by the courts can also be observed in the highly regulated sector of pharmaceutical sales: what was technically possible but legally impermissible yesterday is no longer so today in view of the assessment of all the circumstances that now apply.
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