New decision in pharmaceutical pricing – do price binding regulations not apply in cross-border online sales?
Published on 21st July 2025
On 17 July 2025, the German Federal Court of Justice (BGH) delivered a pivotal judgment (I ZR 74/24) that will have a noticeable effect on the landscape of pharmaceutical price regulation for online pharmacies operating within the European Union (EU). The ruling diverges significantly from the previous instance's judgment, implying profound impact on the pharmaceutical industry.

Background of the Case
The case centres around German price binding regulations. A Dutch online pharmacy offered bonuses of EUR 3 per medication and up to EUR 9 per prescription, incentivising patients to fill out forms or participate in phone interviews for medication checks. The plaintiff, a Bavarian pharmacists' association, argued that these bonuses violated Germany’s pharmaceutical price binding regulations and sought an injunction and reimbursement of warning costs.
Previously, the Munich Higher Regional Court upheld the plaintiff's claims, ruling that the bonuses contravened the price binding regulations stipulated in § 78 para. 1 sent. 4 AMG (old version). This legal norm regulated the pricing for medication available only on prescription, aiming to protect patients from price overshooting. The court deemed these regulations compliant with EU law, specifically the free movement of goods under Articles 34 and 36 of the Treaty on the Functioning of the European Union (TFEU) (for further details see our case note in GRUR-Prax 2025, 123).
The BGH's Divergent Ruling
Contrary to the Munich Higher Regional Court decision, the BGH ruled that the pharmaceutical price binding regulation in § 78 para. 1 sent. 4 AMG (old version) which was applicable in Germany up until 2020 did not apply to online pharmacies based in other EU member states. The court referenced the European Court of Justice's (ECJ) judgment in "Deutsche Parkinson Vereinigung" (C-148/15), which identified the regulation as a measure equivalent to quantitative import restrictions under Article 34 TFEU. The justification of such measure due to the protection of health and life of humans (Art. 36 TFEU) should have been proven with the help of statistical data.
The BGH ruled that such data or other means have not been provided in the case at hand. The assertion that the maintenance of a safe and nationwide supply of medicinal products and therefore the health of the population would be jeopardised without fixed prices for medicinal products is not sufficiently supported. Empirical data on the effects of standardised pharmacy prices on the nationwide, safe and high-quality supply of medicinal products had not been collected.
Scope and implications for the Pharmaceutical Industry
Though the ruling seems to make a clear point, its implications for the pharmaceutical industry are not fully foreseeable given that the full written judgment has not yet been published. As far as it can be assessed against the currently available information, the court only decided on the outdated legal norm of § 78 para. 1 sent. 4 AMG. The similar “new” price binding regulation in § 129 para. 3 sent. 3 SGB V does not seem to have been subject of the ruling. This norm stipulates binding prices for medication only available on prescription, while not applying to the whole market but only for statutorily insured patients. As a result, the BGH apparently did not address whether the price binding in § 129 para. 3 sent. 3 SGB V might be justified by the solidarity principle applicable to statutory health insurance.
Conclusion
While the defendant announced plans to resume offering bonuses in response to the judgment, pharmacists’ associations appear to be more hesitant, assuming that the price fixing regulation introduced under social law might continue to apply. However, its applicability will presumably only be clarified in future proceedings. The full written reasons for the judgment are awaited to provide a comprehensive assessment of its implications for the pharmaceutical industry.
A special thanks to Luisa Jakobs for her support in writing this article.