The ECJ on the online sale of non-prescription medicinal products

On 29 February 2024, the European Court of Justice (ECJ) issued its judgment in Case C-606/21 (Doctipharma SAS v. Union des Groupements de pharmaciens d’officine) concerning the legality of distance selling of medicinal products without a prescription. 

The request for the preliminary ruling was brought to the ESJ by the Court of Appeal of Paris regarding the activity of Doctipharma. This French company designed the website, hosted by Pictime Coreyre, where internet users could buy pharmaceutical and medicinal products not subject to compulsory medical prescription from pharmacy websites. The French court in particular asked the ECJ if this activity has to be regarded as an “information society service” within the meaning of Directive 98/34/EC and whether EU law allows Member States to prohibit the provision of the service of connecting, by means of a website, pharmacists and customers for the sale of medicinal products not subject to prescription.

Regarding the first question, the ECJ replied in the affirmative, stating that connecting pharmacists and potential patients for the sale via the websites of pharmacies that have subscribed to that service, of medicinal products without prescription falls within the concept of an “information society service”. 

 In order to determine whether a service such as that provided by Doctipharma may be prohibited based on national legislation adopted according to Article 85c(1)(a) of Directive 2001/83, the ECJ stated that the referring court (1) should assess whether the provider of that service (connecting pharmacists and customers) must be regarded as merely connecting sellers and customers through a service which is specific to and distinct from the sale, or whether that provider must be regarded as itself providing the sale and (ii) to determine the person who carries out the sale of non-prescription medicinal products..

 The ECJ finally concluded that Member States may prohibit a service provider that is not a pharmacist from selling non-prescription medicinal products itself when it has not been authorised or entitled to do so under the law of the Member State in whose territory it is established, but may not prohibit the service of merely connecting, via a website, pharmacists and customers for the sale of medicinal products without a prescription.