A violation of the provisions of § 78 Abs. 2 Sentence 2 and 3, Abs. 3 Sentence 1 AMG, § 1 Abs. 1 and 4, § 3 AMPreisV is suitable, to prejudice the interests of competitors and other market participants felt, if the value of advertising gift granted for the purchase of a drug exceeds a euro (Supplement to Federal Court, Judgments 9. September 2010 I ZR 193/07, Wheat 2010, 1136 = WRP 2010, 1482 – OUR THANKS TO YOU and I ZR 98/08, Wheat 2010, 1133 = WRP 2010, 1471 Bonus-dithered).
JUDGMENT BGH I ZR 98/12 from 8. More 2013 – Bonus Recipe
UWG § § 3, 4 No.. 11; AMG § 78 Abs. 2 Sentence 2 and 3, Abs. 3 Sentence 1; § AMPreisV 1 Abs. 1 and 4, § 3; HWG § 7 Abs. 1 Sentence 1 No.. 1 Fall 2
…
The I. Civil Division of the Federal Court of the oral negotiation 8. More 2013 by the presiding judge Prof. Dr. Dr. h.c. Bornkamm and the judge Prof. Dr. Büscher, Prof.. Dr. Schaffert, Dr. Kirchhoff and Dr. Loeffler
hereby:
The appeal from the judgment of the 9. Civil Division of the Higher Regional Court of Naumburg 3. More 2012 is rejected on the basis of the defendant's costs, that the defendant for each of the case of violation of the obligation in no. 1 the judgment of the 3. Civil Division Commercial Chamber of the District Court of Dessau 12. August 2011 money up to an order- 250.000 €, substitute detention order is threatened up to two years and six months, and in case of recurrence.
By rights
Facts:
The defendant operates an Internet Pharmacy. In its website it advertises this under the heading
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with the following information:
Now it is worth it for you, Your prescriptions at m. redeem. You can now find 1.50 Euro as a customer bonus for each verschreibungspflichti-ge on your prescription drug.
In cash recipes, this amount is directly related to your payment or the purchase price of products ordered nonprescription (except books) charged or account for orders OTC products (except books) well-written. A cash payment is not.
For private prescriptions customer bonus of will 1.50 EUR your customer account credited for orders and not to comply with the order neter Products (except books) charged. A cash payment is not.
The applicant, the Central Office for Combating Unfair Competition, views this as a breach of the rules on fixed prices for prescription drugs and violating the advertising of medicines-law prohibition of promotional gifts improper conduct in competition.
The applicant has requested,
order the defendant, to refrain, in the course of trade in the dispensing of prescriptions received a bonus of 1,50 To announce € per rezeptpflichti gem-drug and / or to offset this bonus announcement according to or credited to the account.
In addition, the applicant pay 208,65 € demanded together with interest for the warning, the defendant.
The district court sentenced the defendant applicant in accordance with. The Court of Appeal dismissed the appeal of the defendant, with the proviso, that the injunction itself rather than on prescription prescription-
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refers prescription medicines (OLG Naumburg, WRP 2012, 840). With their revision approved by the Court of Appeal, their rejection of the plaintiff requested, pursuing its motion to dismiss, the defendant further.
Reasons:
I. The Court of Appeal has the conduct of the defendant in accordance with the district court as to the provisions of § 78 Abs. 2 Sentence 2 and 3, Abs. 3 Sentence 1 AMG, § 3 AMPreisV incompatible and thus anticompetitive viewed. In support, it stated:
On the basis of § 78 AMG issued regulations of medicinal neimittelpreisverordnung met no constitutional objections. A violation of the prohibition lies there certain discount even before, when a first payment made in any form will always repaid. Wherein “Bonus Recipe” from 1,50 € for each prescription drug-term Whether they are also no longer a low-value clothing nigkeit within the meaning of § 7 Abs. 1 Sentence 1 No.. 1 Fall 2 HWG. Measure of, if a trifle low-vorliege, is not the value of the drug, but, since most people, cashed the recipes, not have to pay the sales price, the maximum amount of 10 €, they would need to pay yourself. Thus given a discount of 15% is quite suitable, to influence the market behavior of consumers unfairly. Are also given de a not inconsiderable part of the drugs to people, which are exempt from co-payment, but nevertheless the defendant a bonus of 1,50 € per drug were. The costs associated with medication-tenbestellung the Internet drawbacks justify no other
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Evaluation. The shipping costs will come to fruition in a few cases.
The district court injunctive relief is, however, to correct it in terms, that the defendant customer bonus of 1,50 € not for each prescription drug, but have been announced for verschreibungspflichti-ge drugs.
II. This assessment withstands legal scrutiny of the audit.
1. The revision takes out the assessment of the appeal court, the relevant provisions in case of dispute the drug price regulation meet th no constitutional objections, because it has its basis in the in § 78 AMG had statutory authorization contained. The provided there, and on the basis of § 78 Abs. 1 AMG in the drug price regulation is more detail under price regulation, because it serves the security of supply, in constitutional law, as an economic counterweight to the pharmacy kenmonopol of § 43 Abs. 1 AMG basically justified (vgl. Kloesel/Cyran, Drug Law, 122. Delivery. 2012, § 78 AMG ANM. 3; Hofmann Kügel / Müller / Hofmann, AMG, 2012, § 78 RN. 28 mwN). Contrary to the arguments of the defendants in the lower courts and there is no evidence, that the Federal Minister of Economics and Technology in § 78 Abs. 1 AMG granted authorization or regulation adopted on the basis of drug price regulation does not correspond to existing constitutional requirements in this regard. The Federal Constitutional Court has dealt repeatedly with these regulations, without far to see reason for concern (vgl. BVerfG, Appeal decision of 20. December 1990 1 BvR 1418/90 and 1 BvR 1442/90, PharmR 1991, 121; Decision of 22. More 1996 1 BvR 744/88, 1 BvR 60/89 and 1 BvR 1519/91, BVerfGE 94, 372 = Grain
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1996, 899 = WRP 1996, 1087; Appeal decision of 19. September 2002 1 BvR 1385/01, NJW 2002, 3693).
The application of the German pharmaceutical price is also right in line with European Union law (GmSOGB, Decision of 22. August 2012 GmS-OGB 1/10, BGHZ 194, 354 RN. 34 ff.).
2. Unsuccessfully turns to appeal against the judgment of the appellate court, a violation of the drug price regulation lie even before, when a first payment made will be refunded in any form or repeatedly, because any discount undermines the uniform delivery price for prescription drugs and in particular the recognition of an additional payment not covered by this Regulation constitutes price advantage.
A) The view of the court with the case law of the Senate recognized in accordance, whereby a breach of the medicinal telrechtliche prices have been not only, when the pharmacist gives an award-bound drug to another as the after medicinal telpreisverordnung to calculate price, but also, when the price-controlled medicines, although the correct price will be stated, but the customer coupled advantages granted with the purchase of the drug, allow the purchase appear economically more favorable for him (BGH, Judgment of 9. September 2010 I ZR 193/07, Wheat 2010, 1136 RN. 17 = WRP 2010, 1482 OUR THANKS TO YOU, mwN). In particular, a par over a certain amount of money coupon is basically a corresponding advantage which; because with him freed from the obligation to charge private patients and private insurance can actually make money “Earn” after all, save cash and a portion of the patient's co-payment, by using
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vouchers to purchase everyday goods in the pharmacy (BGH, Wheat 2010, 1136 RN. 18 and 20 OUR THANKS TO YOU). Can at best be considered deviant, when redeeming the voucher preclude significant obstacles or advantages not only for the acquisition of the price-controlled drug, be granted but also from other occasion, about because the customer must take the acquisition inconveniences (BGH, Wheat 2010, 1136 RN. 18 OUR THANKS TO YOU). Based on the measures taken by the Court of Appeals and not challenged by the re-vision with procedural objections findings, however, can not be assumed, that such an exceptional case here.
B) The audit alleges vain, this argument will CMPFIL-hen, that (anyhow) of the private patient preisgebunde-ne medicines do not get cheaper by the voucher, because he only aloe vera-sen then the voucher could, if he does not acquire prescription products, and therefore only appeared to him a future purchase of non-prescription products cheaper th. It disregards, that many of the consumers offered in pharmacies over the counter products can be bought in everyday life need anyway, so that the payment of a certain sum of money preclude any substantial obstacles. The distinction made by the revision to the reasoning of their opposite view distinction between business from primary and secondary splits the unitary business of purchasing a prescription drug for the granting of Good-sheen on the other hand, artificially (BGH, Wheat 2010, 1136 RN. 19 OUR THANKS TO YOU, mwN). For the numerically far the predominant health patients, which can reduce the of them to be made by the relevant social insurance co-payments provisions in the bonus system on the defendant immediately, plays in the opinion of the
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Revision necessary distinction between an initial business and a second business without this no role.
C) For the foregoing reasons, the argument put forward by the revision argument is not convincing, § 78 AMG and provisions contained in Regulation Arzneimittelpreisver regulated price competition among pharmacists concerning prescription only and pharmacy prescription, by the statutory health insurance dispensed medicines, not however with regard to other products and co-payments. After which the audit response with law for the two categories of drugs according to § indicates 78 Abs. 2 Sentence 2 AMG pharmacies to ensure a uniform price. Thereto is lacking, when a pharmacist gives an award-bound medicinal products for other than the following drug price regulation to calculate price, but also, Although if the correct price is set, but the customer coupled advantages granted with the purchase of the drug, let-it seems more economical to purchase for him (vgl. BGH, Wheat 2010, 1136 RN. 17 THANK-YOU FOR OUR BEAUTIFUL). The distinction made by the sentencing Senate interpretation of the relevant provisions thereafter does not exceed the word sense.
D) Contrary to the revision also justifies the Gesetzesge story no different assessment. The provision of § 37 AMG 1961, of the most 2. September 1976 entered into force § 78 AMG corresponds partially, Although, a regulation authorizing, under which no Regulation has been adopted but. Thus, until the introduction of on the basis of § 78 Abs. 1 AMG adopted, at the 1. January 1978 came into force in the year and requested 1980 detached by the drug price regulation price ranges regulation in the last year 1968 amended by the German drug taxe 1. January 1936 (vgl. to control history Kloesel / Cyran cited
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§ 78 AMG ANM. 2; Hofmann Kügel / Müller / Hofmann, supra § 78 RN. 3). The determination of the § 78 Abs. 2 Sentence 2 AMG on the obligation to guarantee performance of a single pharmacy sale price for foreclosed from traffic outside was kind of pharmacy drugs. 1 No.. 44 the Fourth Act Amending the Drug Law of 11. April 1990 with effect from 20. April 1990 added (Gazette. I S. 717, 724) and in accordance with the type. 23 No.. 5 the law on the modernization of the legal health insurance from 14. November 2003 (Gazette. I S. 2190, 2254) still attached § 78 Abs. 2 Sentence 3 AMG is limited to prescription drugs and non-prescription medicines, if these are submitted to the detriment of public health insurance. A substantive coordination of the scheme with the most 25. July 2001 lapsed Free Gifts and coinciding in time change to § 7 HWG, which was necessary, because this provision was referred to then, in addition to the regulation Regulation, is then carried out at any time. Thus, unlike the revision does not mean be assumed, that advertising restrictions on the dispensing pharmacy price alone § 7 HWG can result.
It) The provision of § 78 Abs. 2 Sentence 2 AMG prohibits the pharmacist not only, to require that covered by this provision need for unity conflicting prices, but also, advertising such prices; because even an advertisement with prices, which do not meet the requirement mentioned, vulnerable and affected the uniformity of Apothekenab issue price.
3. Also avail of appeal, the appeal against the judgment of the Court of Appeals, that it is the announcement by the defendant
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and granted “Bonus Recipe” worth 1,50 € not a trifle low value within the meaning of § 7 Abs. 1 Sentence 1 No.. 1 Fall 2 HWG is.
A) About the meaning and purpose of these fall under the concept of low-alone snack items of little value as, that a relevant unprofessional influence the advertising addressee appears to be excluded. As low-value trifles therefore only minor additions are to be considered, be presented as an expression of general customer friendliness (BGH, Wheat 2010, 1136 RN. 25 OUR THANKS TO YOU, mwN). Taking into account the, that is expected from a rather lower value limit at a public advertisement for the lighter suggestibility advertising addressees, therefore exceeds a promotional gift with a value of 5 € as the value limit (vgl. BGH AAO MWN) as an advertising issue worth 2,50 € (vgl. BGH, Decision of 9. September 2010 I ZR 72/08, Wheat 2010, 1130 RN. 2 and 6 F. – Save the medica-teneinkauf!), not, however, a promotional gift with a value of 1 € (BGH, Judgment of 9. September 2010 I ZR 98/08, Wheat 2010, 1133 RN. 22 = WRP 2010, 1471 Bonus Points, mwN).
B) The Senate after the previous case still open question, whether the relevant applicable limit value already at 1 € (so Mand, NJW 2010, 3681, 3685; Meeser, PharmR 2011, 113, 116) runs or only at a little height-mentioned amount, is to be answered by the Court of Appeal in the first sense,. The reasoning followed by the Court of Appeal in this context considerations into account the fact, that even small donations easily into the consciousness of the consumer in the absence of price competition and thereby these utility maximizing market reactions which initiate the can (Husband, NJW 2010, 3681, 3685). Contrary to the arguments of the revision on it also does not apply to, that a einzulösender in a pharmacy coupon
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about 1,50 € hardly anything is worth from the relevant consumer perspective; because after the experience of life, the pharmacies have in their assortment Edge compete on price with other competitors quite taken up. A voucher worth 1,50 € can not also as the appeal also contends with a gift of a pharmacy newspaper com-pare, the customer usually takes along like, for which he would pay no money but just as often. Extent that the appeal further indicating, that the customer make a second business to redeem the voucher, while goods worth over 50 Should refer €, not otherwise due to the shipping costs of 4,95 To pay €, they can not take account, that the delivery charge the defendant will be coming to the inappropriately gripped findings of the court in the minority of cases having. Moreover, none of the relevance reproduced above consider-ations of the revision comes into the numerically predominant cases, in which the customers of the defendant's statutory health insurance materialized people, which are not exempt from co-payments, the recipe can redeem bonuses already characterized, that they charge these with them to performance-border payments.
III. The revision of the defendants is not successful after all and must be rejected. To clarify, however, a clarification of the order means the threat is required, does not meet the requirements of definiteness in its current version, because the extent of threatened sovereign compulsion not readily (immediately) reveals (vgl. BGH, Judgment of 6. July 1995 I ZR 58/93, Wheat 1995, 744, 749 = WRP 1995, 923 Fire, Ice & Dynamit To, to the extent not in reference omitted 130, 205; Decision of 23. October 2003 I ZB 45/02, BGHZ 156, 335, 340 Euro-launch discount; Teplitzky, Antitrust claims and procedures, 10. Ed, Get. 57 RN. 25, further references).
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The cost is based on § 97 Abs. 1 ZPO.
Bornkamm Buescher Schaffert
Kirchhoff Löffler
Lower courts:
LG Dessau-Roßlau, Decision of 12.08.2011 – 3 The 15/11 –
OLG Naumburg, Decision of 03.05.2012 – 9 You 192/11 –