The Federal Court of Justice in Karlsruhe referred the interpretation of an EU regulation to the ECJ. The European Court of Justice had to decide whether pharmaceutical manufacturers are allowed to advertise their products on the Internet.

Two German pharmaceutical companies were in dispute over the interpretation of an EU directive which was intended to create a Community code for medicinal products for human use. The differences of opinion arose from the fundamental ban on advertising prescription-only medicines to the public, which the defendant pharmaceutical company was alleged to have violated by presenting its medicines on the Internet.

Decision of the court
In his Judgment of 05.05.2011 - Ref. C-316/09 the European Court of Justice ruled that EU law does not prohibit the dissemination of information on prescription-only medicinal products on a pharmaceutical manufacturer's own website, provided that this information is only accessible to those who make an effort to obtain it themselves. Furthermore, the presentation of the medicinal product may only consist of the exact reproduction of the packaging and the literal and complete reproduction of the package leaflet or the summary of the product characteristics approved by the competent medicinal product authority.

On the other hand, the dissemination of information about a medicinal product via such a website that was the subject of a selection or redesign made by the manufacturer, which can only be explained by an advertising objective, is not permitted and must therefore be regarded as inadmissible and therefore also anti-competitive advertising.

Conclusion
According to the ECJ ruling, the mere presentation of the medicinal product on the Internet in the form offered on the market does not appear to qualify as (prohibited) advertising. However, even a slight deviation would probably have to be assessed differently in individual cases, so that extreme caution is required here and only specialized legal advice can be advised.