Bonus schemes of mail-order pharmacies in the European context – New clarity from the Federal Court of Justice
On July 18, 2025, the Federal Court of Justice (BGH, Ref. I ZR 74/24) delivered a landmark ruling at the intersection between German pharmaceutical pricing law and the internal market principles of the European Union. At the center was the question of whether a mail-order pharmacy based in another EU country may grant vouchers or other economic advantages when selling prescription medicines to German end customers. This ruling provides greater clarity regarding the current legal situation, particularly with respect to the differing legal frameworks for domestic and foreign providers.
Facts of the case and procedural developments
A Dutch mail-order pharmacy repeatedly issued vouchers as bonuses to customers in Germany when they purchased prescription medicines. German competitors viewed this as a violation of the mandatory pricing system for medicinal products (§ 78 German Medicines Act in conjunction with the Pharmaceutical Price Ordinance), which requires uniform pricing for prescription-only medicines. The lawsuit filed against the Dutch pharmacy sought injunctive relief on the basis of national price-binding rules; the court of appeal had upheld these claims.
On appeal, the BGH overturned this judgment and pointed to the EU law dimension of the dispute. The court clarified that German pricing rules do not automatically apply to pharmacies based outside Germany which supply medicines to German consumers via mail order.
EU law requirements and national particularities
Pharmaceutical price regulation in Germany
In principle, German pharmaceutical law (§ 78 para. 1 sentence 1 of the Medicines Act in conjunction with the Pharmaceutical Price Ordinance) requires that prescription medicines be dispensed at fixed prices. Domestic pharmacies are therefore strictly bound by legally set prices – discounts and bonuses are excluded. The main purpose of this regulation is to ensure nationwide provision of medicines and to prevent ruinous price competition.
Significance of the EU fundamental freedoms
The harmonized internal market law of the European Union—in particular, the free movement of goods, Art. 34 et seq. TFEU—limits the scope of national price regulations in cross-border situations. As early as 2016, the European Court of Justice (ECJ, decision of 19.10.2016, Case C-148/15 – “DocMorris”) ruled that national price-binding provisions may not be applied to mail-order pharmacies in other EU member states. In such cases, the German regulation is superseded due to the primacy of European law.
The BGH follows this approach: The disputed bonuses granted by the Dutch mail-order pharmacy are permissible under applicable EU law. The extension of German price regulations to foreign pharmacies constitutes an unlawful restriction of the free movement of goods and violates the prohibition of discrimination within the internal market.
Impacts on the pharmacy market and consumer protection
Competition between domestic and foreign providers
As a result of this decision, a legally induced competitive disparity arises between German brick-and-mortar pharmacies and mail-order pharmacies based in other EU member states. While German pharmacies remain bound to the strict price-binding system, foreign mail-order pharmacies are permitted to offer incentives such as vouchers. This may significantly impair the competitiveness of pharmacies within Germany in the context of cross-border pharmaceutical trade.
Implications for consumers
For consumers, the highest court’s clarification means that when purchasing prescription medicines from EU-based mail-order pharmacies, they may benefit from additional advantages such as bonuses or discounts—a possibility unavailable when purchasing from a domestic pharmacy. However, regulatory requirements—such as those concerning drug safety and shipping conditions—continue to apply.
Political and legal debates
The BGH’s decision is based on applicable law and previous EU court guidelines. Nevertheless, it should be considered that legislators may seek to further develop the legal framework through new regulations or bilateral agreements. The debate regarding the principle of equal treatment, competitive equality, and the protection of public health thus remains relevant both politically and legally.
Assessment and outlook
The judgment underlines the complexity and dynamics of the European pharmacy law sector. Companies, investors, and private individuals operating or planning to invest in cross-border pharmaceutical trade face a complex interplay of national regulatory requirements and European market principles. Careful analysis and ongoing monitoring of the evolving legal landscape is essential to avoid risks and to recognize opportunities at an early stage.
The BGH’s decision highlights the urgency of remaining attentive to legal developments at the intersection of national pharmaceutical market law and the European internal market regime. If you have further questions about the legal framework for cross-border distribution of medicinal products or the implications of this judgment, the Rechtsanwalt at MTR Legal will be pleased to assist you.
