The European Court of Justice (the “Court”) has ruled that Poland’s law prohibiting advertising by pharmacies and pharmaceutical outlets is overly restrictive and contrary to EU law.

The Polish legislation (Article 94a(1) of the Law on Medicines, as amended) which had been in force since 2012, prohibits pharmacies and pharmaceutical outlets from engaging in any form of advertising or promotional activity other than providing limited information on their location and opening hours. Any person who is found to be in breach of the provisions is liable to a fine of up to 50,000 Polish zloty (PLN) (approximately EUR 12,000).

The EU law in question is Article 8(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”) and Articles 49 and 56 TFEU.

The Directive on electronic commerce provides that Member States shall ensure that the use of online commercial communications by members of a regulated profession, such as pharmacists, is permitted subject to compliance with the professional rules.

The Court found that the Polish legislation was in breach of the Directive on electronic commerce. The Court found it was not relevant that the restriction did not apply to all pharmacists, only those working in pharmacies or pharmacy outlets. If that were the case,  Member States could circumvent that provision of the Directive by way of prohibitions that do not cover a marginal series of activities exercised by members of a regulated profession.

The Court also found that the prohibition in question infringes the freedom to provide services and the freedom of establishment under Articles 49 and 56 TFEU. This is because the prohibition restricts pharmacists in other member states from making themselves known and promoting their services and makes it more difficult for pharmacists in Poland who wish to open a pharmacy.

The Court did not accept Poland’s argument that the prohibition was necessary in order to avoid the overconsumption of medicinal products. In fact, they noted that allowing advertising may actually divert business away from one pharmacy to another, which is not “overconsumption”.  Additionally, the Court did not accept Poland’s argument that the prohibition was necessary to ensure the professional independence of pharmacists, by protecting them from pressure that may be asserted by proprietors of pharmacies.

The full judgment can be found here.