GERMAN COURT RULES ON WHOLESALER RE-IMPORTS

6 December 1993

The German federal Cartel Office, the BKA, has failed in its bid to increase competition in the German pharmaceutical market with the help of competition legislation. A judgement by the Berlin Superior Court of Justice has stated that the drug wholesale sector is not obliged to accept in their product ranges parallel- or re-imported drugs from abroad.

The BKA has barred Gehe AG, Anzag and Sanacorp from refusing to distribute products from importer Eurim-Pharm to pharmacies, arguing that their refusal infringed para 26 of the law on restriction of competition. The BKA's aims was to open up the national market to cheaper drugs, often with price advantages of 10%-15%.

The Berlin court said that an obligation to accept these products in a drug wholesaler's ranges represented a considerable interference with entrepreneurial freedom. The court also noted that the general public interest in cutting health spending costs, to which the BKA had referred and on which it had relied in its dealings, could not be taken into consideration because such an aim could not be pursued through the use of the legislation. The BKA says it will now study the written judgement to see if it opens the way to any further legal action.

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