CJEU Ruling on Advertising Restrictions and Free Movement of Goods
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Court of Justice of European Union, CJEU, free movement of goods, free movement of services, advertising restrictions, German law, DocMorris judgment, European Union law, medicinal products, mail-order sales
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Abstract
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Abstract
The Court of Justice of the European Union (CJEU) examines the conformity of a German law restricting advertising with European Union law, focusing on the free movement of goods and services.
Extract
[...] In particular, the Court cites the Hünermund judgment, in which it considered as a sales modality a deontological rule prohibiting pharmacists from advertising, outside their pharmacy, parapharmaceutical products that they were authorized to market. The two conditions set by the Keck and Mithouard judgment being met, the German law must be qualified as a sales modality, with the consequence that it escapes the scope of Article 34 TFUE. The law of the Union therefore does not oppose the fact that it is forbidden to the DocMorris company to organize its public advertising. [...]
[...] In other words, this advertising action does not fall within the material scope of the directive, as it is advertising for a specific pharmacy and not for a specific medicine. Regarding the German national law that restricts advertising, the CJEU notes that this law relates to both the free movement of goods and the free movement of services. Thus, in light of consistent case law, the court examines only one of these two fundamental freedoms if it appears that one of them is entirely secondary to the other and can be linked to it. [...]
[...] Indeed, in judgments such as CJCE Jägerskiöld, the Court had no difficulty in determining the fishing restriction as falling under the freedom to provide services. However, in judgments such as CJCE Canal satellite digital, the Court had more difficulty in deciding and therefore did not take a position. However, this is not what the Court did in CJEU VIPA, the judgment cited here. The judge will therefore rely on the principle established by this judgment, particularly with regard to advertising. [...]
[...] The Court makes a limited choice based on faith by supporting its analysis solely on the free movement of goods and supporting its analysis solely on importation. In fact, at points 33 and 34, it only cites Article 34 of the TFEU (ex-Article 28 of the EC Treaty) which only talks about quantitative restrictions on importation. So, why not also open the scope of its analysis to Article 35 on quantitative restrictions on exportation? Even if, in other judgments, the Court aligns the regime of obstacles to importation and exportation. [...]
[...] The Court does not seem to want to see quantitative restrictions on exportation in the matter of advertising. It may be because the Court has not yet fallen into a case where a national law imposes a restriction on exportation of advertising. Furthermore, if we go further, it may also be because the Court is afraid to go beyond. Thus, this narrow angle leads the Court to consider the sales modalities as derogations only within the scope of Article 34 of the TFEU. [...]
