Presto (P) advised on free movement of goods between member states, in
particular, the legality of German law which contrary to EU law on the prohibition any
form of promotion of sale of pharmaceuticals. P advised the prescription medicines
are indeed goods as they can be valued in money and form the basis of a
commercial transaction as defined by in Jagerskiold and consumer goods includes
medical products as in Schmacher.
The relevant provisions of law are Art.34 and Art.36 TFEU, which its implementation
was described by Loannis Lianos as “out of control”. Art.34 provides quantitative
restriction (QR) on imports and all measures having equivalent effect (MEQR) shall
be prohibited between member states while Art.36 provides different grounds of
derogation available to a Member State in the event there are such QR or MEQR
being put in place. On the fact, German do not prevent or prohibit import of
pharmaceuticals goods (Geddo v Ente Nazionale), but rather merely prohibiting any
form of the promotion of the sale of pharmaceutical which likely to constitutes as
MEQR (Gourmet International Products). MEQR define by Dassonville as
‘trading rules imposed by member states that are capable of hindering, directly, or
indirectly, actually or potentially, intra-community trade...’. Loannis Lianos opine
such definition very often termed as an “overbroad” approach by court.
The prohibition imposes by German, it may, strictly speaking, fall within the ambit of
Art.34 as prohibition of advertisement through certain mediums could potentially
affect intra-Union trade. However, lack stated in Keck and Mithouard may be of
assistance to German to argue the restriction merely regulates how products can be
sold. Although Keck approach heavily contested by Mickelsson, but Gormley has
nevertheless confirmed Keck survives after these cases. Given Keck still a good
law, German may wish to rely on it and may do so if German can demonstrate that
prohibition on any form of promotion of sale of pharmaceutical can satisfy two
conditions, and if so, such prohibition will fall outside the ambit of A34 and need not
be justified.
Firstly, the measure in question must apply to all relevant traders in the territory.
Prohibition on any form of promotion appears to be applied to both domestic
suppliers and importers as there is no suggestions that it is only applicable to
importers. Secondly, the measure must affect the traders in the same manner, in law
and in fact. Prohibition on any form of promotion of sale clearly applies equally in
law, but as to whether it will apply the same in fact, greater considerations have to be
given. In Agostini restriction of one channel of advertisement falls within the ambit of
Keck and it was held that such restriction is permissible as long as it applies equally
in fact to all the traders in the territory. As observed by AG Jacobs in Lerlerc-
Siplec, advertising is crucial for market access. Imposing restrictions on how
products may be marketed will affect an importer more than a domestic
manufacturer as a domestic player would have gathered a strong customer base and
built a reputation for itself. On the other hand, mail-order pharmacy supplier like P
may have to apply extensive marketing strategy before it can impede the market. As
particular, the legality of German law which contrary to EU law on the prohibition any
form of promotion of sale of pharmaceuticals. P advised the prescription medicines
are indeed goods as they can be valued in money and form the basis of a
commercial transaction as defined by in Jagerskiold and consumer goods includes
medical products as in Schmacher.
The relevant provisions of law are Art.34 and Art.36 TFEU, which its implementation
was described by Loannis Lianos as “out of control”. Art.34 provides quantitative
restriction (QR) on imports and all measures having equivalent effect (MEQR) shall
be prohibited between member states while Art.36 provides different grounds of
derogation available to a Member State in the event there are such QR or MEQR
being put in place. On the fact, German do not prevent or prohibit import of
pharmaceuticals goods (Geddo v Ente Nazionale), but rather merely prohibiting any
form of the promotion of the sale of pharmaceutical which likely to constitutes as
MEQR (Gourmet International Products). MEQR define by Dassonville as
‘trading rules imposed by member states that are capable of hindering, directly, or
indirectly, actually or potentially, intra-community trade...’. Loannis Lianos opine
such definition very often termed as an “overbroad” approach by court.
The prohibition imposes by German, it may, strictly speaking, fall within the ambit of
Art.34 as prohibition of advertisement through certain mediums could potentially
affect intra-Union trade. However, lack stated in Keck and Mithouard may be of
assistance to German to argue the restriction merely regulates how products can be
sold. Although Keck approach heavily contested by Mickelsson, but Gormley has
nevertheless confirmed Keck survives after these cases. Given Keck still a good
law, German may wish to rely on it and may do so if German can demonstrate that
prohibition on any form of promotion of sale of pharmaceutical can satisfy two
conditions, and if so, such prohibition will fall outside the ambit of A34 and need not
be justified.
Firstly, the measure in question must apply to all relevant traders in the territory.
Prohibition on any form of promotion appears to be applied to both domestic
suppliers and importers as there is no suggestions that it is only applicable to
importers. Secondly, the measure must affect the traders in the same manner, in law
and in fact. Prohibition on any form of promotion of sale clearly applies equally in
law, but as to whether it will apply the same in fact, greater considerations have to be
given. In Agostini restriction of one channel of advertisement falls within the ambit of
Keck and it was held that such restriction is permissible as long as it applies equally
in fact to all the traders in the territory. As observed by AG Jacobs in Lerlerc-
Siplec, advertising is crucial for market access. Imposing restrictions on how
products may be marketed will affect an importer more than a domestic
manufacturer as a domestic player would have gathered a strong customer base and
built a reputation for itself. On the other hand, mail-order pharmacy supplier like P
may have to apply extensive marketing strategy before it can impede the market. As
