By decision of 26 March 2026 (case no. I ZR 118/24), the First Civil Senate of the Federal Court of Justice (BGH) stayed the proceedings in order to refer a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The question concerns whether the freedom to provide services guaranteed under EU law precludes a national provision such as Section 9 of the German Drug Advertising Act (HWG).
Pursuant to Section 9 sentence 1 HWG, advertising for remote medical treatment is generally prohibited. Only where such treatment is carried out using communication media and, according to generally recognized professional standards, a personal medical consultation with the patient is not required, may such services be advertised under the exception provided in Section 9 sentence 2 HWG.
Facts of the Case
The request for a preliminary ruling by the BGH is based on a competition law dispute between a registered association, whose statutory purpose is to safeguard the interests of its members (medical associations, physicians, and clinics) in matters of fair competition law, and the defendant, a company based in Germany.
The defendant operates an online platform through which medical consultations (diagnosis and treatment recommendations) are offered to German consumers for certain medical conditions, including erectile dysfunction, hair loss, premature ejaculation, and acne. Where necessary, the platform also facilitates the procurement of corresponding medicinal products via a cooperating mail-order pharmacy. In the context of treating erectile dysfunction, users receive an “online diagnosis” by completing an online questionnaire, as well as a medical prescription for a suitable medicinal product issued via the platform. This “online diagnosis” is essentially based on the user’s own information regarding their health condition, symptoms, intolerances, and medication use. Physicians based in Ireland issue private prescriptions on the basis of the information submitted through the online questionnaire and forward them to a cooperating mail-order pharmacy, which then dispatches the medicinal products to the patient. No personal contact – whether in the form of an in-person consultation, video conference, or telephone call – takes place between the patient and the cooperating physicians based in Ireland.
The claimant considers the defendant’s advertising on its website to be unfair, as it allegedly violates Section 3a of the German Unfair Competition Act (UWG) in conjunction with the prohibition on advertising remote treatments set out in Section 9 HWG. The claimant therefore seeks injunctive relief.
Procedural History
At first instance, the Regional Court of Munich I dismissed the claim. Upon appeal by the claimant, the Higher Regional Court of Munich reversed the first-instance judgment and ruled in favor of the claimant.
The appellate court held that the defendant’s website violated Section 3a UWG in conjunction with Section 9 HWG. In the case at hand, the defendant was advertising remote medical treatment, as diagnoses were made and medications prescribed after the patient submitted symptoms and other required information via an online questionnaire, without any personal consultation. Section 9 HWG, in the court’s view, should not be interpreted restrictively to the effect that remote treatments permissible under professional medical law would generally fall outside the scope of the advertising prohibition.
Furthermore, the services at issue did not meet the statutory requirements for permissibility under Section 9 sentence 2 HWG or the generally recognized medical standards. In particular, a personal consultation between doctor and patient is generally necessary for the treatment of erectile dysfunction, due to the potential for psychological causes and the possible need for accompanying (psycho)therapeutic measures. The permissibility of the remote treatment under Irish or German professional medical law is not relevant for interpreting Section 9 sentence 2 HWG or determining generally accepted professional standards. Accordingly, the fact that a remote treatment may be permissible under German professional law does not automatically mean that it may also be advertised under Section 9 sentence 2 HWG.
By way of the appeal on points of law admitted by the BGH, the defendant continues to pursue its request for dismissal of the action.
Decision of the BGH
BGH stayed the proceedings and referred to the CJEU the question of whether the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union (TFEU) precludes a provision such as Section 9 HWG, which prohibits advertising for remote treatments that do not comply with the professional standards recognized domestically when provided by physicians established in another Member State.
BGH concludes that the prohibition resulting from Section 9 HWG – under which a company established in Germany may not advertise in Germany for treatments provided by affiliated physicians established in Ireland using an online questionnaire – constitutes a restriction on the freedom to provide services guaranteed by Article 56 TFEU. Against this background, the further question arises whether such a restriction may be justified on grounds of public health protection in light of the specific risks associated with remote medical treatments. This question is now for the CJEU to decide.
Conclusion
The question referred to the CJEU is of considerable practical and doctrinal importance. It will clarify the extent to which Member States may restrict the advertising of remote medical treatments provided by physicians established in other Member States, and the role played by national medical standards in this context. The CJEU’s decision is likely to establish key guidelines for the future regulation and marketing of telemedical services within the European Union and will have implications far beyond the individual case.
