A mail-order pharmacy based in another EU country is permitted to offer bonuses on prescription medications to customers in Germany. The Federal Court of Justice (BGH) in Karlsruhe ruled that the drug price control regulations in force in Germany until the end of 2020 do not apply to mail-order pharmacies based in other EU countries. They violated the free movement of goods.

The First Civil Senate found no violation of the Act against Unfair Competition. According to the ruling, it is irrelevant whether the bonuses granted violate a new regulation in the Social Code that has since come into force. Presiding Judge Thomas Koch stated that there is no risk of repetition. For this reason alone, the lawsuit should be dismissed.

Courts have so far been on the side of the Bavarian Pharmacists Association

The specific case from 2012 involved a mail-order pharmacy based in the Netherlands, which, according to information, promised customers a bonus of three euros per medication when they redeemed a prescription, up to a maximum of nine euros per prescription. Bonuses were also offered to people who participated in a drug check via form or telephone. The Bavarian Pharmacists' Association considered this a violation of competition law and fixed pharmaceutical prices and filed a lawsuit. It had been successful in the lower courts in Munich.

Unlike over-the-counter medications, pricing is regulated by law. The basic idea is that the affected drugs should be offered at the same price in every pharmacy. This is intended to protect pharmacies from cutthroat competition and patients from being taken advantage of, according to pharmacists' associations. Foreign mail-order pharmacies have long wanted to change this – because bonuses are a popular way to attract customers.

For years, it had been controversial whether the fixed price also applies to mail-order pharmacies in other EU countries – or whether this violates the free movement of goods within the EU. The Higher Regional Court (OLG) of Munich ruled that the fixed price was not contrary to EU law. The legislature had reason to assume that the regulation was an appropriate means of securing the supply of pharmaceuticals in Germany. The OLG therefore granted the association's lawsuit.

However, the Federal Court of Justice (BGH) referred to the standards of the European Court of Justice (ECJ). Koch explained that the plaintiff had not presented sufficient data or other "hard facts" to prove that without fixed pharmaceutical prices, a comprehensive supply of pharmaceuticals could not be maintained and that public health would therefore be at risk.

Within Germany, the regulations continue to be different. Pharmaceutical price control also fundamentally stipulates that pharmacies are not allowed to offer promotional gifts or vouchers for a next purchase when selling prescription drugs. In June 2019, the Federal Court of Justice ruled that even small gifts such as tissues or glucose tablets from pharmacies are prohibited. Previously, case law had permitted small gifts up to a value of one euro.