«(Articles 28 EC and 30 EC – Directives 92/28/EEC and 2000/31/EC – National legislation restricting internet sales of medicinal products for human use by pharmacies established in another Member State – Doctor's prescription required for supply – Prohibition on advertising the sale of medicinal products by mail order)»

1.. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Definition – Prohibition on the sale by mail order of medicinal products the sale of which is restricted to pharmacies – Whether included – Justification limited to medicinal products subject to prescription – Reimportation of medicinal products into the Member State concerned – Not relevant ( Arts 28 EC and 30 EC )

2.. Approximation of laws – Proprietary medicinal products – Advertising – Prohibition on advertising the sale by mail order of medicinal products the sale of which is restricted to pharmacies – Permissible only in respect of medicinal products subject to prescription ( Directive 2001/83/EC of the European Parliament and of the Council, Art. 88 )

JUDGMENT OF THE COURT 11 December 2003 (1)

((Articles 28 EC and 30 EC – Directives 92/28/EEC and 2000/31/EC – National legislation restricting internet sales of medicinal products for human use by pharmacies established in another Member State – Doctor's prescription required for supply – Prohibition on advertising the sale of medicinal products by mail order))

In Case C-322/01,

REFERENCE to the Court under Article 234 EC by the Landgericht Frankfurt am Main (Germany) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Articles 28 EC and 30 EC and of Article 1(3) and (4) and Articles 2 and 3 of Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use (OJ 1992 L 113, p. 13), in conjunction with Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market ( the Directive on electronic commerce) (OJ 2000 L 178, p. 1),

THE COURT,,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and A. Rosas (Presidents of Chambers), D.A.O. Edward (Rapporteur), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: C. Stix-Hackl,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Deutscher Apothekerverband eV, represented by C. Dechamps, assisted by J. Schwarze, 0800 DocMorris NV and J. Waterval, represented by C. Koenig, the German Government, represented by W.-D. Plessing, the Greek Government, represented by D. Kalogiros and M. Apessos, acting as Agent, the French Government, represented by R. Loosli-Surrans, and the Commission, represented by J.-C. Schieferer, at the hearing on 10 December 2002,

after hearing the Opinion of the Advocate General at the sitting on 11 March 2003,

gives the following

Community legislation

Directives regulating the sale of medicinal products

Directives concerning the classification for the supply of medicinal products

Directives concerning the advertising of medicinal products

2. Medicinal products may be advertised to the general public which, by virtue of their composition and purpose, are intended and designed for use without the intervention of a medical practitioner for diagnostic purposes or for the prescription or monitoring of treatment, with the advice of the pharmacist, if necessary....3. Member States shall also be able to ban on their territory advertising to the general public of medicinal products the cost of which may be reimbursed.

2. Medicinal products may be advertised to the general public which, by virtue of their composition and purpose, are intended and designed for use without the intervention of a medical practitioner for diagnostic purposes or for the prescription or monitoring of treatment, with the advice of the pharmacist, if necessary....

Directives concerning distance sales and electronic commerce

National legislation

The sale of medicinal products

National law regulating the advertising of medicinal products

Medicinal products which are not authorised in Germany

Observations submitted to the Court

The Court's reply

Medicinal products which are authorised in Germany

Observations submitted to the Court

The Court's reply

Observations submitted to the Court

The Court's reply

Non-prescription medicines

Prescription medicines

Observations submitted to the Court

The Court's reply

Whether Paragraph 43(1) of the AMG is a measure having an effect equivalent to a quantitative restriction

Whether there is justification

Whether the prohibitions on advertising are compatible with Community law

Scope of the concept of advertising to the general public under Article 1(3), first indent, and Article 3(1) of Directive 92/28

On those grounds,

THE COURT,

in answer to the questions referred to it by the Landgericht Frankfurt am Main by order of 10 August 2001, hereby rules:

Skouris

Jann

Timmermans

Gulmann

Cunha Rodrigues

Rosas

Edward

La Pergola

Puissochet

Schintgen

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 11 December 2003.

R. Grass

V. Skouris

Registrar

President