by João Fidalgo Jorge, Lawyer and Collaborating Member of CEDU
In 2003, the European Court of Justice declared that a comprehensive ban on the mail-order sales of freely available pharmaceuticals was contrary to European Law (Case C-322/01, 11 December 2003 – the so called “Doc Morris decision”). In reaction to this decision, the German parliament went beyond the court’s ruling, and the Statutory Health Insurance Modernization Act 2004 (“GKV-Modernisierungsgesetz vom 01.01.2004”) opened the door to mail-order and online sales of prescription drugs as well. Some 10 years later, the Research Project on Internet Commerce and Pharmaceutical Crime (ALPhA – http://www.alpha.uni-osnabrueck.de) was born in Osnabrück, under the coordination of Prof. Dr. Arndt Sinn: part of the research programme of the German Federal Ministry for Education and Research (BMBF) on public safety, this joint project is funded by the “Public Safety and White-Collar Crime” branch of the programme. The project builds on the ministry’s stated aim of using the results of the research programme to preserve and increase public safety in the face of increasing white-collar crime without compromising the principles of the rule of law.
In Portugal, the Doc Morris decision effects generated some legal and policy discussions on the subject. This reaction ultimately led to new legislation which provides that retail pharmacies (and similar sales points) may now provide the remote selling of medicines, through their websites – even to consumers currently living in other member states of the European Union, under the conditions laid down on Article 9-A of the Decreto-Lei nº 307/2007 (from 31/08). The use of an electronic website depends on prior notification to the National Institute of Pharmacy and Pharmaceuticals (INFARMED), which created and is responsible for the management of an official list of all licensed Internet pharmacies. The INFARMED then monitors the Internet presence of pharmacies engaged in remote selling, in collaboration with the pharmacies themselves and also other entities (such as the criminal police), according to Articles 9-A and 45 of the mentioned DL 307/2007 – as well as the rules established by the Portaria nº 1427/2007, from 02/11.