Under the Act on Strengthening Local Pharmacies (VOASG), which comes into force on 15 December 2020, pharmacies such as DocMorris which are based in the EU but outside Germany will again be forbidden to pay bonuses on prescription drugs to patients in Germany. This means German law is circumventing a ruling of the highest court in the European Union, the ECJ (case no. C-148/15). In this case the court decided in 2016 that pharmacies based in the EU outside Germany are not bound by German price fixing for prescription drugs and are allowed to grant their customers discounts to compensate for a competitive disadvantage.
“The ban on bonuses set out in Book V of the Social Security Code seeks to ensure that the European Union has no powers to originate social security legislation. But in this instance the same substance is simply being shifted into a new Act, apparently out of dislike for a decision on principle by the ECJ, in the hope that this will comply with EU law. In our view the Federal Republic of Germany, which currently holds the presidency of the Council of the European Union, is acting in a way that is clearly in breach of European law and causing financial disadvantage to millions of patients”, says Walter Hess, CEO of DocMorris.
As a result of the VOASG, pharmacies based in the EU outside Germany are at a disadvantage compared to German pharmacies when it comes to market access, because it was only bonuses that ensured competitive conditions were equal in the German market. While the Act was going through the legislative process DocMorris put forward several constructive proposals on the bonus arrangements and has already announced it will waive the bonus on prescription drugs on the DocMorris marketplace and in its various eRx cooperations.
The European Commission’s reaction to the renewed legal ban on bonuses remains to be seen. Infringement proceedings are still under way against Germany for breaching the principle of the free movement of goods; the European Commission can remit this suit directly to the ECJ (no. 2013/4075). As a pharmacy, DocMorris will pursue all legal options against the ban on bonuses.
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