Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2.

A discounted price for water dispensers offered by a pharmaceutical company to a doctor, cannot be considered as a violation of § 4 No. 1 UWG (the German Unfair Competition Act)  when there is no evidence that the freedom of choice of the doctor regarding the prescription of pharmaceuticals is impaired.

A pharmaceutical company leased a water dispenser with a 40% discount to doctors.

The plaintiff requested a cease-and-desist order for this commercial practice, because it was of the opinion that these benefits were able to have an undue influence on the doctor´s (free) decision regarding the choice of drug therapy for his patients in favour of the pharmaceutical company granting the benefits.

Is a discount of 40% offered by a pharmaceutical company to a doctor able to constitute a violation of the German unfair competition law, because the doctor's decision making independence regarding the choice/prescription of drugs to his patients would be inappropriately impaired?

The court found that this commercial practice did not constitute a violation of Sec. 4 no. 1 UWG (the German Unfair Competition Act), because the plaintiff could not prove that the granted benefits impaired the doctor's independent decision in regard to his prescription practice.

First of all, the court found that the respective benefit was not high enough to put a pressure on the doctors' right to freely decide on their prescriptions. Furthermore, the pharmaceutical company would not be informed about the prescriptions of the doctors. Also, under social law regulations, doctors must take into account the cost-effectiveness of drugs, so that they would not prescribe the products of the pharmaceutical company if equivalent drugs of competitors are less expensive.

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The plaintiff's request was denied.