With its ruling in Apothekerkammer Nordrhein v. DocMorris (Case C-517/23), the Court of Justice of the European Union (CJEU) provided further clarity on the interpretation of EU law concerning the advertising of medicinal products, with a particular emphasis on prescription-only (Rx) medicinal products. Most importantly, the CJEU ruled that advertising unspecified Rx medicinal products by offering price reductions (cash discounts) and payments falls outside the EU law concept of medicinal product advertising. Recently, in a ruling delivered on 17 July 2017, the highest German court confirmed the legality of DocMorris’s practice of granting cash discounts on cross-border sales to German patients, even if these discounts undercut the fixed uniform retail prices for prescription drugs.
In more detail
Factual background
DocMorris, one of Europe’s largest online pharmacies, is a regular at the CJEU, with cases dating back to 2000 (Case C-322/01). This means that the CJEU’s ruling in February 2025 is only the latest in a line of DocMorris cases.
This latest case concerned DocMorris’ marketing campaigns aimed at boosting the sales of both Rx and over-the-counter (OTC) medicinal products, offering price reductions and payments for uploading prescriptions. These campaigns have been ongoing since 2012. Through these advertising campaigns, DocMorris sought to increase prescription upload rates and expand its customer base. The campaigns can be broken down into the following categories:
- In one campaign, customers that uploaded a prescription were eligible to receive a cash reward ranging from EUR 2.50 to EUR 20, randomly assigned. This approach introduced an element of chance.
- In another campaign, DocMorris introduced a referral system. Under this scheme, an existing customer received a non-medicinal reward (e.g., a discount on accommodation services) if their referred friend uploaded a prescription. Simultaneously, the referred friend was granted a discount applicable to OTC medicinal products.
- Some campaigns also included fixed-value discounts. In certain cases, a EUR 10 discount was offered in exchange for uploading a prescription, which could be redeemed for OTC medicinal products or non-medicinal health products.
- In other instances, the discount was directly applicable to Rx medicinal products, either EUR 5 or EUR 10.
These commercial practices have triggered several legal disputes between DocMorris and the Professional Association of Pharmacists of North Rhine (Apothekerkammer Nordrhein). As a result of these disputes, German courts imposed restrictive interim measures on DocMorris.
However, DocMorris challenged these interim measures as unfounded and filed a claim for damages against Apothekerkammer Nordrhein. In the second instance, the court ruled in favor of DocMorris, prompting Apothekerkammer Nordrhein to initiate a judicial review before the Bundesgerichtshof (Federal Court of Justice, Germany). During this judicial review, the German court submitted a request for a preliminary ruling to the CJEU.
German law
To fully understand the case, it is necessary to briefly mention the relevant provisions of German law. The key legal source governing pharmaceutical advertising in Germany is the Heilmittelwerbegesetz (HWG), (Law on the advertising of medicinal products). Section 7(1) of the HWG strictly prohibits offering, announcing or granting monetary advantages and other promotional gifts (goods or services), or accepting them as a healthcare professional.
However, the law sets out several exceptions to this general prohibition, one of them providing that cash discounts (i.e. a specific sum of money or a sum of money to be calculated in a specific way) are permitted. However, this exemption only captures OTC drugs, whereas for Rx drugs eligible for reimbursement the uniform fixed retail prices must not be undercut. Only in case of cross-border commerce (e.g. from the Netherlands to Germany) may Dutch online pharmacies grant cash rebates as a result of CJEU’S 2016 landmark ruling (C-148/in re Deutsche Parkinson Vereinigung). Nevertheless, the German court that referred the case to CJEU was uncertain whether promotional gifts in the form of price reductions with immediate effect, i.e. cash discounts, are compatible with Directive 2001/83.
The CJEU’s decision
Taking the above into consideration, the CJEU found the following:
Regarding the first advertising method, the CJEU found that a national law prohibiting pharmacies from offering a random monetary reward is compatible with EU law (in particular, Article 34 of the Treaty on the Functioning of the European Union (TFEU) and the Directive on electronic commerce (2000/31/EC)). Therefore, based on consumer protection considerations, Member States may prohibit pharmacies from offering rewards with an element of chance.
As for the second and third advertising methods, the CJEU found that offering a voucher redeemable for unspecified OTC medicinal products falls within the EU law concept of “advertising of medicinal products,” in accordance with the CJEU’s previous Euroaptieka ruling (Case C‑530/20) which we previously discussed here. Furthermore, the CJEU found that a national law prohibiting advertising measures that promote the purchase of unspecified Rx medicinal products by offering promotional gifts — namely vouchers corresponding to a certain sum of money or a percentage reduction for the subsequent purchases of other products, such as non-prescription medicinal products — is not incompatible with EU law (in particular, Article 87 (3) of Directive 2001/83/EC of the European Parliament and of the Council on the Community code relating to medicinal products for human use).
Regarding the fourth advertising method, the CJEU additionally found that a commercial practice encouraging the purchase of unspecified Rx medicinal products through discounts or payments falls outside the concept of “advertising of medicinal products,” as set out in Article 86 (1) of Directive 2001/83/EC. In this context, the CJEU highlighted that the decision to prescribe an Rx medicinal product lies exclusively with the treating physician. When the patient receives a medical prescription, the only choice to be made is which pharmacy they will buy from. Since commercial practices aimed at encouraging consumers to purchase unspecified Rx medicinal products have no influence on the decision to prescribe, only the choice of pharmacy, these commercial practices should not be considered advertising of medicinal products.
This case shows that, in addition to the various ongoing legislative efforts at the EU level (such as the pharmaceutical reform package, the European Health Data Space Regulation and the Critical Medicines Act), the pharmaceutical industry must also keep up to date on the evolving interpretation of the currently effective EU law.
Highest German court recently confirmed legality of DocMorris’ cash discounts
Procedurally unrelated to the CJEU ruling C-517/23 discussed above, in a separate DocMorris case, the highest German civil court effectively confirmed the legality of DocMorris’s business model which relies on cash discounts granted to patients who send their prescriptions to the Netherlands. According to the court’s judgment delivered on July 17, 2025 (docket no. I ZR 74/24), there was no factual evidence that any interests related to the “protection of health” (Art. 36 TFEU) —associated with a dense network of on-site pharmacies— could override the principle of free movement of goods (Art. 34 TFEU). This principle provided the legal basis for cross-border cash discounts that undercut the fixed, uniform pharmacy retail prices for prescription drugs, which German pharmacies are otherwise required to follow.
Notably, following CJEU’s landmark 2016 DocMorris ruling, which found the traditional prohibition on cash discounts established by German drug law to violate Art. 34 TFEU, the German legislature “cunningly” transferred the cash discount prohibition, specifically targeting mail-order pharmacies outside Germany, from drug regulatory law to the German social security code (‘lex DocMorris’). Social security law falls outside the harmonized sectors of EU law though.
While both the CJEU and German courts have so far remained silent on the compatibility of the ‘lex DocMorris’ with EU law, pharmaceutical entrepreneurs and wholesalers may grant cash discounts that undercut uniform fixed prescription prices when selling cross-border to Dutch pharmacies, at least as long as the prescription drugs concerned are not subject to social security reimbursement (for example, lifestyle medications).
