Distance selling of non-prescription medicines

On April 27, 2017, the Chamber of Deputies passed a law allowing the sale of medicines not subject to prescription via the internet. This text can be considered as an advance, since it takes into account the recent evolutions of society. However, it is necessary to consider whether this law is in conformity with European Union law and in particular the provisions on freedom to provide services.

First, it should be noted that medicinal products which have, inter alia, a marketing authorization and a price to the public are included on a positive list of medicinal products authorized in Luxembourg. This list sets the price to the public that the pharmacist cannot exceed. The fixing of prices for medicinal products infringes Article 34 TFEU, which “must be interpreted as meaning that national legislation […], which provides for a system of fixed prices for the sale by pharmacies of prescription-only medicinal products for human use, constitutes a measure having equivalent effect to a quantitative restriction on imports […]” (CJEU, judgment of 19 October 2016 in Case C-148/15 Deutsche Parkinson Vereinigung eV v Zentrale zur Bekämpfung Unlauteren Wettbewerbs eV). It should be noted that this jurisprudential solution can be applied to non-prescription medicines.

It is therefore possible that the opening of the market for the sale of non-prescription medicinal products to pharmacies selling these products via an Internet platform on the territory of Luxembourg from abroad increases the risk of a conviction of Luxembourg for infringement of Article 34 TFEU because of the fixing of prices for medicinal products.

Secondly, the conditions imposed on pharmacies selling non-prescription medicinal products via the Internet are high, so that the distance selling of medicinal products offers the same security as he sale of medicines in a traditional pharmacy. Despite these demanding conditions, pharmacies selling medicines at a distance are not allowed to sell prescription drugs. It is not excluded that this restriction on the sale of medicinal products at a distance constitutes a measure having equivalent effect to a quantitative restriction on imports.
The opening of the sale of non-prescription medicines to the European market therefore harbors the risk that Luxembourg will soon be attacked for violation of EU law.