13/14 December 2023
The I. Civil Senate of the German Federal Court of Justice (BGH), which is responsible for competition law, has submitted questions to the Court of Justice of the European Union (ECJ) regarding the sale of pharmaceuticals via Amazon. Specifically, the issue is whether a pharmacist who sells pharmaceuticals on an internet sales platform is in breach of the data protection provisions applicable to health data, and whether such a breach can be pursued by another pharmacist with an action under competition law before the civil courts (decisions dated 12 January 2023; case numbers ZR 222/19 and I ZR 223/19).
The two underlying legal disputes essentially concern the same facts. In each case, a pharmacist had brought an action against another pharmacist who had sold over-the-counter drugs via Amazon.
In the first case (I ZR 222/19), the claimant took the view that the sale of OTC drugs via Amazon violated the provisions of the German Medicines Act (AMG), the German Drug Advertising Act (HWG), the Pharmacy Operations Regulation (ApBetrO) and the Professional Code of Conduct for Pharmacists on one hand, and data protection regulations (DSGVO) on the other.
In the second case (I ZR 223/19), the complaining pharmacist argued that no consent had been obtained for the collection and processing of personal data as part of the ordering process. The defendant already had doubts about the claimant's legal right to bring an action, and was also of the opinion that there was no processing of health data and that the data processing was legal.
The BGH has suspended both proceedings pending the decision of the ECJ.
Press release No. 006/2023 of 12 January 2023 published by the press office of the Federal Court of Justice provides further information on the progress of the proceedings in the two cases. So far, only the linked press release in German language has been published.