The mail-order sales of medicinal products in the light of the EU principle of the free movement of goods

Abstract

The provisions on EU freedoms contained in article 28-66 of the Treaty on the Functioningof the European Union are of key importance from the point of view of achieving the Unionsobjectives related to the proper functioning of the internal market. At the same time, thereare areas of shared competence between Member States and EU bodies. One of them ishealth policy, aimed at protecting and improving public health. The lack of full harmonizationof regulations concerning the activity of pharmacies that are public health facilities results innon-uniformity of national systems. There is a problem as to whether national regulations thatintroduce certain restrictions in the field of cross-border trade in medicinal products can beconsidered as violating the basic principles related to the functioning of the internal marketof the European Union.The analysis of the jurisprudence of the Court of Justice allows to conclude that EU law precludesnational regulations providing for a complete ban on mail-order sales of medicinal productsby online pharmacies. Such legislation constitutes a measure having an effect equivalentto a quantitative restriction within the meaning of article 34 of the Treaty on the Functioningof the European Union and thus are contrary to the Unions free movement of goods. In thelight of the jurisprudence formulated by the Court, restrictions on mail-order sales may onlyapply to medicines subject to medical prescription, if such restrictions are justified by theprotection of human life and health and are appropriate to ensure the achievement of the setgoal and do not go beyond what is necessary to achieve it.