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The Federal Court of Justice has made it clear: Pharmacies without an emergency service are not allowed to have medicines delivered on Sundays and public holidays. The ruling strengthens the Sunday and public holiday rest requirement – also in relation to digital delivery services.
Violation of store opening law
Special provisions apply to store operators on Sundays and public holidays with regard to the regulation of store opening hours and working bans. This is left to the individual federal states to decide. The Federal Court of Justice commented on this legal situation in its ruling of 06.03.2025 – I ZR 20/24 with regard to a pharmacy operator in Cologne and clarified that the mere delivery by an external delivery service also violates the state law requirement to close on Sundays and public holidays.
A pharmacist who […] has his customers supplied with medicines by a delivery service on Sundays and public holidays […] is in breach of Section 7 (2) sentence 1 LÖG NRW, even if he keeps the sales outlet of his pharmacy closed.
The defendant was a pharmacy operator from Cologne that cooperated with a company that offers a pharmacy delivery service for consumers. Consumers were able to order products from participating pharmacies via a smartphone app. The ordered products were collected from the pharmacies by a delivery driver from the delivery service and then delivered to the consumers. The Cologne-based pharmacy operator also supplied customers with pharmacy-only medicines via the delivery service outside of its emergency service hours on Sundays and public holidays.
An association for combating unfair competition in Frankfurt takes action
The Wettbewerbszentrale (an association for combating unfair competition) in Frankfurt took action against deliveries outside of emergency service hours. It requested the pharmacy operator to refrain from making deliveries outside of its own emergency service hours on Sundays and public holidays. It categorized deliveries outside of emergency service hours as a violation of the duty of silence and therefore considered them to be anti-competitive.
The pharmacy operator, on the other hand, argued that there was no anti-competitive behavior, as there was already no corresponding standard i. There was no corresponding standard within the meaning of Section 3a UWG that had been breached. The closure of the pharmacies in North Rhine-Westphalia was not based on a law, but on a closure order issued by the responsible Chamber of Pharmacies. As an administrative act, this does not fall under the concept of a statutory provision. In addition, the Pharmacy Operating Regulations, as a federal regulation, provide for pharmacies to be on duty at all times, including on Sundays and public holidays, so that this requirement, as a federal regulation, takes precedence over the closure order in any case. However, the Federal Court of Justice took a different view.
Administrative acts […] do not constitute statutory provisions within the meaning of Section 3a UWG. However, insofar as they merely repeat the statutory order, non-compliance with the administrative act also constitutes an infringement of the statutory provision, so that Section 3a UWG can intervene directly.
Federal regulation does not prevent the ordering of pharmacy closures
The Federal Supreme Court clarified that the legislator’s intention in amending the Pharmacy Operating Regulations was to improve the rules relating to the manufacture, storage and safe dispensing of medicines. It was also a matter of clarifying new terms and adapting to current laws and practical experience. A reference to the regulations on store closing times, which is no longer included, was solely due to the fact that the legislative competence for this has been transferred to the federal states. However, it was never intended that this would invalidate the rules of the federal states on store closing times. The interaction of the existing rules was to continue to apply. On the contrary: with the amendment, the federal government wanted to recognize that the federal states are now responsible for store closing times.
Closure order also serves to ensure competitive neutrality
The provision of Section 3 FeiertagsG NRW is – just like Section 7 (2) sentence 1 LÖG NRW – a market conduct regulation within the meaning of Section 3a UWG. Although it primarily serves to protect Sunday and public holiday rest, it is also intended to ensure competitive neutrality between competitors.
The Federal Court of Justice stated that a violation of an administrative act of the Chamber of Pharmacists, which was issued on the basis of Section 7 (2) sentence 1 of the NRW Shop Opening Act and stipulates that pharmacies must be closed on Sundays and public holidays in alternation, also constitutes a violation of this same statutory provision. The Chamber’s closure order specifies the legal requirement to keep pharmacies closed on these days and specifies which pharmacies are affected on which days.
Opening of sales areas not decisive
The Federal Court of Justice also clarified that it is irrelevant that the pharmacy’s sales room, the so-called “Offizin”, was not opened for delivery. The closure order means that sales may not be made either via the pharmacy’s salesroom or via other rooms of the pharmacy. By using the other rooms of his pharmacy as a point of sale when the pharmacy is closed and delivering products that consumers order via the smartphone app, the pharmacy operator is violating the order and thus acting in an anti-competitive manner.
Conclusion
The dispatch of medicinal products from business premises that are not open to the public also constitutes a violation of closure orders under state law and is anti-competitive. The obligation to remain quiet therefore applies regardless of whether the sales premises are open or not. The ruling underlines the importance of complying with state regulations on store closures. Advice is also worthwhile in this context in order to minimize competition law risks.
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