Possible impact of the latest EU Court ruling on the sale of OTC drugs in Hungary

The recent judgment of the Court of Justice of the European Union (CJEU) on the online sale of over-the-counter (OTC) medicines (Decision C-606/21, published on 29 February 2024) will have a direct impact on existing Hungarian legislation and market practice.

Summary

The Union of Pharmaceutical Groups (UDGPO) has questioned the legality of the services provided by an online drug platform seller, Doctipharma. UDGPO believes that by providing services through its platform, Doctipharma is involved in the online sale of drugs, in violation of French legislation prohibiting the sale of drugs by unqualified persons.

But the EU Court of Justice held that Doctipharma's services were "information services" under EU law, connecting dispensing pharmacists and potential patients through services for selling OTC drugs.

The European Court of Justice distinguished between two situations. If a service provider who lacks pharmacist qualifications intends to sell OTC drugs on its own, member states can prohibit the provision of services. However, if the service provider facilitates the connection between sellers and customers and does not engage in direct sales, member states cannot prohibit it from providing services even if the service provider lacks pharmacist qualifications.

The EU Court of Justice ultimately concluded that member states have the right to regulate who can sell over-the-counter medicines online, but online sales through third-party services should also be allowed, but the third party's role is limited to facilitating contact between sellers and customers.

Current status of OTC online sales in Hungary

In Hungary, the law only allows pharmacies to sell OTC drugs online and requires them to register their websites with the Hungarian Medicines Administration before starting operations.

Hungarian online platform providers can facilitate the sale of OTC medicines, but only for sales purposes. Home delivery is not allowed and customers need to pick up the medicines at the pharmacy. In practice, this means that the sales of these products by online platform providers are quite limited.

Therefore, the question is whether Hungary’s regulations on home delivery can be considered compatible with EU law in light of the EU Court’s decision. We will continue to pay attention to the legal developments in Hungary.