Skarga do Komisji Europejskiej ws. zakazu reklamy aptek

2014-12-05

Treść pisma wysłanego do Komisji Europejskiej ws. zakazu reklamy aptek.

Subject: CHAP(2013)03345 - Ban on advertising of pharmacies, pharmacy outlets and their activities in Poland

Thank you for your letter dated September 30, 2014. We fully understand your approach and the need to address the Polish authorities. Although we have no doubts that the European Commission has all the necessary resources to investigate our complaint to the fullest possible extent, we would also like to assure you that whenever you should require (or find useful) our assistance, especially with regard to establishing facts and collecting information concerning the scope and application of the adverting ban for pharmacies in Poland, we willdo our best to provide you with all relevant evidence and/or data.

Because several months have passed since our complaint was lodged, we took the liberty of updating the information on the advertising ban covering pharmacies, pharmacy outlets and their activities, i.e., in legal terms, on the application of art. 94a of the pharmaceutical law in regulatory and court practice. In order not to overburden this short letter with a large amount of data, the list of the relevant administrative and court decisions that have been issued
in the meantime has been enclosed to this letter as exhibit 1. The basic points resulting from these decisions have been translated into English. Since at some stage we believe you may find it useful in your proceedings, we also enclose (as electronic files) the complete set of administrative and court decisions interpreting art. 94a of the pharmaceutical law in Poland we have in our possession (exhibit no. 2 - a CD with copies of court and administrative decisions).

At this point we would only like to stress that, as evidenced by the latest decisions, the understanding of the advertising ban and its scope has not changed at all; on the contrary, the scope of the ban seems to have been constantly expanding, encompassing previously unknown types of activities and information. Unfortunately, the Supreme Administrative Court, i.e. the highest court in Poland that can be seized with disputes related to the construction of art. 94a, has joined the interpretation favoured by the Pharmaceutical Inspector and the Regional Administrative Court in Warsaw. Any hope that the current practice we consider incompatible with the basic principles of EU law will be internally corrected by the Polish judiciary must be therefore considered increasingly unlikely, if not completely gone. We would also like to draw your attention to the fact that Polish courts, unfortunately including the Supreme Administrative Court, have not given sufficient (or more precisely: any) consideration to the issues of EU law and the compatibility of the absolute ban on advertising of pharmacies et al. with the freedom of establishment or the principles of the free movement of goods and services, let alone secondary EU law concerning the advertising of pharmaceutical products.

The advertising ban greatly affects the ability of pharmacies to reasonably conduct their business, not only with regard to special advertising measures, but also simple day-to-day decisions. It would for example seem quite normal for a pharmacy situated in the city of Suwałki near the Polish-Lithuanian border to inform customers that its staff understands Lithuanian, however it has been reported that the information "We speak Lithuanian" may be illegal. Even though the law concerning the reimbursement of medicinal products obligates pharmacies to inform clients about cheaper generic equivalents, the Regional Administrative Court in Warsaw concluded in its decision of January 2014 that this had been unlawful advertising, since bigger font had been used to highlight this information (case ref. VI SA/Wa 1456/13).
As already mentioned in our complaint, any advertising material (e.g. leaflets), even covering such products as cosmetics or food supplements, is forbidden (Regional Pharmaceutical Inspector's decisions in Wrocław of August 29, 2014, WIF-WR-I.8523.58.2014). By the same token any internet offer may be considered unlawful - in its decision of August 25, 2014 the Regional Pharmaceutical Inspector for the Masovian region found that the information provided on the internet about the possibility of placing orders online for products available in pharmacies constituted prohibited advertising, inter alia because it also informed about prices and discounts (Decision of the Mazowieckie VPI in Warsaw of 20 May 2014, WIF.WA.II.8523.1.36.2012.RK - all decisions included in the attached list).  As is evident from these examples (a tiny fraction of the vast body of court and administrative decisions issued so far) in some cases the advertising ban directly clashes with the internal market, for example when it deprives foreign clients of the basic information that they could use their own language to communicate. 

The scope and consequences of the advertising ban are clearly endorsed and, when possible enforced, not only by pharmaceutical inspectors and courts, but also by the Ministry of Health. One of the latest examples we may present is the opinion of the Ministry of Health that the co-called "Large Family Card", i.e. a card families having three or more children can apply for to receive certain benefits (including discounts) cannot entitle them to discounts
for pharmaceutical products as this would be, according to the Minister of Health, contrary to the advertising ban introduced by art. 94a of the pharmaceutical law. It is worth noting here that the "Large Family Card" is not a private initiative, but is granted by regional administration (community mayors). According to the judiciary even a name of a pharmacy may constitute ‘advertising' for the purpose of the ban. Numerous examples have been provided
in the list attached to this letter.

In our complaint we pointed out that the purpose of the advertising ban (let alone its proportionality) had never been satisfactorily explained by the Polish authorities.  In fact, when art. 94a of the pharmaceutical law was amended no official justification was provided.
In all other communication a very general invocation of ‘public health' is usually made. We must unfortunately conclude that nothing has changed in this matter and in particular, despite serious internal controversies generated by the absolute character of the ban, no  explanation of the current regulation has been furnished by the authorities. We are of the opinion that a superficial use of "public health" is not a valid and sufficient justification either of the obvious restriction of the Treaty Freedoms, or of the departure from the rules established by EU secondary law with regard to advertising and providing services.

 

Enclosures:

1.    Information on administrative and court decisions concerning the interpretation and scope of art. 94a of pharmaceutical law issued since the date of the complaint.

2.    Copies of administrative and court decisions concerning the interpretation and scope of art. 94a of pharmaceutical law.