Cabinet Beau de Loménie
By order dated 14 February 2013, the interim relief judge decided to suspend the execution of Article L. 5125-34 of the “Code de la Santé Publique” (French Public Health Code - CSP), created from the Order of 19 December 2012, transposing the Directive 2011/62/EU of 8 June 2011, of the European Parliament and of the Council, which amended Directive 2001/83/EC establishing a Community Code relating to medicinal products for human use.
According to this Directive, only drugs dispensed by a pharmacist on prescription can be excluded from online sale.
However, Article L. 5125-34 of the CSP states that only the following may be sold online "drugs of officinal medication that can be presented in direct access to the public in pharmacies...". It does not expressly state that all drugs, with the exception of those on prescription, can be offered for sale to the public through a website.
In fact, the list established by the National Agency for Medicines and Health Products, which is limited to 455 products, excludes from online sales medications that have not yet issued on prescription.
A request for suspension of the implementation of this article was brought before the Conseil d’Etat (French Supreme Administrative Court) by a pharmacist, who specifically developed a business of selling drugs online. In the order of 14 February, the administrative judge held that the absence of limitation of the contested provisions to the sole exception of prescription drugs was likely to cast serious doubt on their legality.
He then justifies the existence of an emergency, which is a necessary condition for the issuance of the suspension, by reference to the financial damages caused to the claiming pharmacist, who had posted online offers, in advance, for drugs, that were ultimately not authorized, which he had to withdraw. Thus, the judge noted that 58% of this pharmacist’s turnover precisely concerned this type of medication.
However, the judge refused to suspend the execution of Article L. 5125-36 of the CSP which the opening of a website for selling drugs on the internet subject to authorization by the General Director of the Regional Health Agency with territorial jurisdiction. He decided that none of the claims, relating to the infringement of the principle of free competition and to the breach of the provisions of the Directive, which only provides for a notification obligation, is likely to cast a serious doubt on the legality of this provision.
Pending a decision on the merits, all non-prescription drugs can be sold online. However, no permission to open a website has been issued to date.
A good practice guide for distance selling should be published soon by decree. As for the French Competition Authority, it has decided ex-officio to lead a sector inquiry to analyze the functioning of competition in the entire chain of drugs distribution.