The recent judgement of the Court of Justice of the European Union (“CJEU”) on the sale of over-the-counter (OTC) medicinal products online (C-606/21, decision published on 29.02.2024) may have a direct impact on the existing Hungarian legislation and established market practice.
Case summary
The Union des Groupements de pharmaciens d’officine (UDGPO) challenged the legality of the services provided by Doctipharma, an online platform provider facilitating the sale of OTC medicines from pharmacy websites liked to its platform. The Union argued that by providing a service through its platform, Doctipharma was involved in the online sale of medicinal products and violated French legislation prohibiting the sale of medicinal products by unqualified persons.
The Court clarified that Doctipharma’s service constituted an “information society service” under EU law, connecting dispensing pharmacists and potential patients through the service of selling OTC medicines.
The Court differentiated two scenarios:
- it concluded that a Member State can prohibit the provision of services, if a service provider lacking the pharmacist’s qualification, intends to sell OTC medicines on their own,
- it concluded that if the service provider merely facilitated connections between sellers and customers, without engaging in direct sales, Member States cannot prohibit the provision of services even if the service provider lacks the pharmacist’s qualification.
The Court finally concluded that Member States have the authority to regulate who can sell OTC medicines online but should also allow online sales through a third party that solely facilitates connections between sellers and customers.
Online sales in Hungary
In Hungary, only pharmacies are legally allowed to conduct online sales of OTC medicines, and are required to inform the Hungarian pharmaceutical authority of their website prior to commencing operations.
Online platform providers can facilitate the sale of OTC medicines, but due to the recently tightened rules involving home delivery, they can only sell the aforementioned products; customers need to pick-up their orders at the pharmacy. In practice, this means that the sale of these products by online platform providers is rather limited, if it exists at all. Therefore, the question is whether the rules regarding home delivery in Hungary can be considered compatible with the EU law, in light of the CJEU’s decision.
By Miriam Fuchs, Senior Associate, and Lilla Lantai, Associate, Wolf Theiss
