In a significant move, the European Commission (EC) has taken the decision to refer Poland to the Court of Justice of the European Union (CJEU) for its alleged non-compliance with the EU’s E-Commerce Directive. The EC, which initiated the case, contends that Polish legislation violates the directive by prohibiting pharmacies from engaging in advertising activities.

Under the current Polish law, pharmacies are only allowed to provide the public with information regarding their physical location and operating hours. This means they are prohibited from utilizing electronic or non-electronic means, including the internet, for any form of commercial communication.

The E-Commerce Directive explicitly states that professionals in regulated fields, such as pharmacists, should have the ability to utilize information society services to promote their services. The directive, along with the Treaty on the Functioning of the European Union (TFEU), emphasizes that national legislation cannot impose a complete and indiscriminate ban on advertising pharmacies and their activities. This interpretation is supported by the jurisprudence of the CJEU.

The EC argues that the Polish law not only infringes the E-Commerce Directive but also violates Article 49 and Article 56 of the TFEU. The EC believes that a total ban on advertising is unwarranted and disproportionate when it comes to protecting public health.

While certain restrictions may be necessary to prevent marketing practices that could have adverse effects on public health, a complete ban on advertising undermines market competition and obstructs the advancement and promotion of modern services that directly benefit patients, the EC asserted.

The EC initially initiated the matter by sending a formal notice to Poland in January 2019, followed by a reasoned opinion in July 2020. However, as Poland has persisted in breaching EU regulations, the EC has now taken the step to refer the case to the CJEU, seeking a resolution to the dispute.