BGH restricts the granting of early payment discounts on prescription drugs

In its ruling of 8 February 2024 (case number I ZR 91/23), the German Federal Court of Justice (BGH) decided the long-debated question of the extent to which pharmaceutical wholesalers or pharmaceutical companies may grant early payment discounts to pharmacies when selling price-fixed medicinal products. The reasons for the judgement are not yet available, but the BGH has already announced the operative part of the judgement, thereby agreeing with the judgement of the Higher Regional Court of Brandenburg (OLG Brandenburg), which was the court of the previous instance (we reported).

This court had already ruled in June of last year that the granting of early payment discounts was inadmissible insofar as this would result in the price falling below the pharmaceutical company's legally stipulated selling price plus the fixed surcharge of 73 cents and VAT.

The dispute arose from an offer by a pharmaceutical company to grant pharmacies a 3% early payment discount if they paid within two weeks for the pharmaceuticals they ordered. In the event that the two weeks would be exceeded, the pharmacy’s regular purchase price should be applied. This price is calculated in accordance with Section 2 para. 1 sentence 1 half-sentence 1 AMPreisV (selling price of the pharmaceutical company plus a surcharge of 73 cents (respectively 70 cents in the version of the law on which the judgement is based) and VAT). The business model chosen by the pharmaceutical company was particularly problematic because, by granting the 3 % early payment discount, the fixed pharmacy purchase price – as set out in Section 2 para. 1 sentence 1 half-sentence 1 AMPreisV – was undercut. This has raised the question of whether such a price undercut is permissible at all.

The OLG Brandenburg denied the admissibility of the early payment discount granted, arguing in particular with the wording of Section 2 para. 1 sentence 1 half-sentence 1 AMPreisV. This stipulates that the fixed surcharge of 73 cents and VAT has to be added to the pharmaceutical company's selling price. The OLG Brandenburg considered this to be a statutory minimum price for the supply of prescription drugs to pharmacies, which may not be undercut by early payment discounts.

The BGH has now agreed with the legal opinion of the OLG Brandenburg. This judgement is hardly surprising in view of the clear wording of Section 2 sentence 1 half-sentence 1 AMPreisV. However, the decision of the BGH does not contain a general prohibition on the granting of early payment discounts or discounts in general, as long as these do not fall below the price stipulated in Section 2 para. 1 sentence 1 half-sentence 1 AMPreisV.