Hearing date on January 23, 2025 at 11:00 a.m. in the matters I ZR 222/19 and I ZR 223/19 (sale of medicines via internet sales platforms)
Year of issue 2024
Release date 16.10.2024
Nr. 199/2024
The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has to decide on the question of whether a pharmacist who sells medicines on an Internet sales platform violates the data protection regulations applicable to health data, and whether such a violation was committed by another pharmacist can be pursued with a competition law lawsuit in the civil courts.
Facts
The parties in proceedings I ZR 222/19 and I ZR 223/19 are pharmacists. The defendants sell their products via the Amazon platform.
The plaintiff in the case I ZR 222/19 complains that the sale of pharmaceuticals sold in pharmacies via the platform violates, on the one hand, the provisions of the Medicines Act (AMG), the Medicines Advertising Act (HWG), the Pharmacy Operating Regulations (ApBetrO) and the Professional Code for Pharmacists and, on the other hand, data protection regulations.
The plaintiff in proceedings I ZR 223/19 complains that the defendant there did not obtain consent for the collection and processing of personal data as part of the ordering process.
Process history so far:
In case I ZR 222/19, the regional court dismissed the lawsuit. In response to the plaintiff’s appeal, the Higher Regional Court changed the regional court’s judgment and partially upheld the lawsuit insofar as it was based on violations of data protection regulations in Regulation (EU) 2016/679 (General Data Protection Regulation – GDPR). With the appeal approved by the Higher Regional Court, both parties are continuing to pursue their applications.
In case I ZR 223/19, the regional court upheld the lawsuit. The Higher Regional Court rejected the defendant’s appeal. With the appeal approved by the Higher Regional Court, the defendant continues to seek dismissal of the lawsuit.
The Federal Court of Justice suspended proceedings I ZR 223/19 by decision of January 12, 2023 (GRUR 2023, 264 – drug order data) and submitted questions on the interpretation of the General Data Protection Regulation to the Court of Justice of the European Union for a preliminary ruling. The Federal Court of Justice has suspended proceedings I ZR 222/19 until a decision on its request for a preliminary ruling in case I ZR 223/19 (see press release No. 6/2023). The Court of Justice of the European Union answered the questions in its judgment of October 4, 2024 – C-21/23.
The Federal Court of Justice will continue the oral hearing in both proceedings on January 23, 2025.
Lower courts:
I ZR 222/19:
LG Magdeburg – Judgment of January 18, 2019 – 36 O 48/18
OLG Naumburg – judgment of November 7, 2019 – 9 U 6/19
and
I ZR 223/19:
LG Dessau-Roßlau – Judgment of March 28, 2018 – 3 O 29/17
OLG Naumburg – judgment of November 7, 2019 – 9 U 39/18
The relevant regulations are:
Section 8 Paragraph 1 Sentence 1, Paragraph 3 No. 1 UWG
(1) Anyone who carries out a business act that is not permitted under Section 3 or Section 7 can be held liable for removal and, if there is a risk of repetition, for injunctive relief. […]
(3) The claims from paragraph 1 apply to:
1. any competitor who sells or requests goods or services to a significant extent and not just occasionally, […]
Art. 9 GDPR
(1) The processing of personal data revealing racial and ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, as well as the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, health data or data relating to sexual life or the sexual orientation of a natural person is prohibited.
(2) Paragraph 1 does not apply in the following cases:
a) the data subject has expressly consented to the processing of the said personal data for one or more specified purposes, […]
Karlsruhe, October 16, 2024
Press office of the Federal Court of Justice
76125 Karlsruhe
Telephone (0721) 159-5013
Fax (0721) 159-5501
