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Online platform and the prohibition of sale of medicinal product not subject to medical prescription: the CJEU rules that a factual analysis of the role of the platform must be conducted

The Court of Justice of the European Union’s judgment of 29 February 2024[1] sheds light on the question of whether Member States may prohibit the activities of e-commerce platforms operating in the field of medicinal products not subject to medical prescription.

The case involved the www.doctipharma.fr website which was edited and operated by the French company Doctipharma SAS (“Doctipharma”). The website connected pharmacists with customers and allowed the latter to buy medicinal products not subject to compulsory medical prescription from pharmacies websites.

Doctipharma, which has become DocMorris France, did not have the status of pharmacist itself.

As the French Public Health Code reserved e-commerce activities in medicinal products exclusively to certain pharmacists and Doctipharma did not have such status, the French Union of Pharmacy Groups (Union des Groupements de pharmaciens d’officine, “UDGPO”) brought proceedings against not only Doctipharma but also the company hosting the www.doctipharma.fr website, claiming that Doctipharma’s activities on the said website were unlawful.

Doctipharma argued, in defense, that it did not sell medicinal products itself, since its services were limited to the provision of a technical solution to pharmacists which enabled them to edit and exploit their websites.

The judges of first instance upheld the UDPGO’s view according to which Doctipharma’s services were not limited to mere provision of a technical solution and thus ordered Doctipharma to cease its activities on the litigious website[2].

Doctipharma lodged an appeal before the Court of Appeal of Versailles which overturned the decision rendered in first instance, ruling that the www.doctipharma.fr website was a technical platform and Doctipharma did not market medicinal products itself[3]. Challenged by the UDGPO, the decision of the Court of Appeal was then set aside by the French Supreme Court which considered that the Court of appeal did not draw legal consequences of its findings that Doctipharma acted as an intermediary between pharmacists and customers, and hence participated in e-commerce for the sale of medicinal products[4].

The case came before the Court of Appeal of Paris to be judged again on the merits. Doctipharma contended that the case involved questions regarding the interpretation of Article 85c of Directive 2001/83 which provides, inter alia, that the Member States must authorize the distance selling to the public of medicinal products not subject to medicinal prescription, by means of information society services.

In this context, the Court of Appeal decided to stay the proceedings and to ask the Court of Justice of the European Union (CJEU), in essence:

• whether Doctipharma’s activities would be qualified as an “information society service” within the meaning of Directive 98/34, and
• if so, whether the Member States may prohibit, on the grounds of Article 85c of Directive 2001/83, the provision of a service consisting in connecting pharmacists and customers, via a website, for the sale of medicinal products not subject to medical prescription from the websites of pharmacies.

1. Qualification of Doctipharma’s activities as an information society service

The first question addressed by the CJEU was whether Doctipharma’s activities on its website would fall within the meaning of an “information society service” defined by the Article 1(2) of Directive 98/34 (repealed by Directive 2015/1535 which maintained the same definition) as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”.

It follows from this definition that to be qualified as an information society service, a service must be provided :

• for remuneration,
• at a distance, e. without the parties being simultaneously present,
• by electronic means, e. the service must be sent initially and received at its destination by means of electronic equipment for the processing and storage of data, and entirely transmitted, conveyed and received by electromagnetic means,
• at the individual request of a recipient of services, e. provided through the transmission of data on individual request.

Concerning the first condition, the CJEU considered that it was irrelevant that the service provided by Doctipharma was free of charge to the customers purchasing the medicinal product on the www.doctipharma.fr website, since Doctipharma concluded with the pharmacists using its services a contract involving payment of a monthly subscription.

Since Doctipharma’s services were provided via a website without the simultaneous presence of the service provider, on the one hand, and the pharmacists or the customers, on the other hand, the second and third conditions listed above were also met.

As regards the fourth condition, Doctipharma’s website required for both pharmacists and customers to create an account to be able to use Doctipharma’s services. The creation of such accounts amounted, according the CJEU, to an individual request from the pharmacists as well as the customers.  

The CJEU therefore concluded that the services provided by Doctipharma via its website could qualify as an “information society service”.

2. Possibility of prohibiting e-commerce in medicinal products depending on the role played by the e-commerce platform

As Doctipharma’s activities qualified as an information society service, the question the CJEU had to address was whether Doctipharma’s services could be prohibited by French laws on the basis of Article 85c of Directive 2001/83.

According to this Article, the Member States must ensure that medicinal products not subject to medical prescription are offered for sale at a distance to the public by means of information society services.

By contrast to medicinal products subject to medical prescription whose sale at distance can be forbidden by the Member States, the distance selling of medicinal products not subject to medical prescription cannot be prohibited by national legislations provided that the conditions set out in Article 85c of Directive 2001/83 are met.

One of these conditions is that persons offering the medicinal products are authorized to supply such products to the public in accordance with national legislation of the Member State in which they are established. Therefore, the directive leaves the competence for determining persons authorized to supply medicinal products at a distance to the Member States.

In this respect, the French Public Health Code reserved e-commerce activities in medicinal products exclusively to certain pharmacists, and prohibited pharmacists from receiving orders for medicinal products and selling such products through intermediaries that did not have the status of pharmacist.

The question was therefore whether the prohibition, under French laws, of services consisting in providing a website connecting pharmacists and customers and allowing the latter to buy medicinal products from pharmacist websites was permitted by Article 85c of Directive 2001/83.

The CJEU considered that the response to this question depended on the role played by the e-commerce platform, and that it was for the referring court to determine whether Doctipharma should be regarded as merely connecting pharmacists selling medicinal products and customers by means of a service distinct from the sale itself.

It is also specified by the CJEU that the assessment of Doctipharma’s role should be “purely factual” and take into account the specific features of the service provided by the latter.

According to the CJEU, if it follows from such an assessment that Doctipharma should be regarded as carrying out the sale of medicinal products not subject to medical prescription, then its activities could be prohibited under French laws on the grounds of Article 85c of Directive 2001/83.

By contrast, if Doctipharma’s services were to be considered as merely connecting pharmacists selling the products with customers, then such services cannot be prohibited on the ground that it participated in e-commerce for the sale of medicinal products.

It follows from the CJEU’s judgment that the Member States should take a more nuanced approach than granting exclusivity to pharmacists when regulating e-commerce activities in medicinal products.

Although the CJEU’s judgment would be encouraging for e-commerce platforms willing to operate in the field of medical products not subject to medical prescription, such platforms must pay particular attention to the specific features of their websites to ensure that pharmacists using their services play an active role in the sale of the products, to make sure that they are not qualified as sellers themselves.

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We, at Harlay Avocats, will be glad to assist you in navigating through the French and EU e-commerce regulations with respect to medicinal products.

[1] Court of Justice of the European Union, 29 February 2024, Doctipharma SAS v/ Union des Groupements de pharmaciens d’officine (UDGPO), Case C-606/21

[2] Tribunal de commerce de Nanterre, 31 May 2016, RG No.2015F00185.

[3] Cour d’appel de Versailles, 12 December 2017, RG No.16/051671.

[4] Cour de cassation, Commercial Chamber, 19 June 2019, RG No.18-12.292.