The matter at hand

In a case concerning the marketing of medicinal products for human use, the referring court in Stockholm asked the ECJ whether the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market applies to advertising practices relating to medicinal products for human use that (also) fall within the scope of Directive 2001/83 on the Community code relating to medicinal products for human use.

The judgment of the ECJ

With reference to its judgment in Mediaprint Zeitungs- und Zeitschriftenverlag (C‑540/08), the ECJ recalls that the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market “is characterised by a particularly wide scope ratione materiae which extends to any commercial practice directly connected with the promotion, sale or supply of a product to consumers” (paragraph 74). This therefore includes the business-to-consumer promotion of medicinal products. The ECJ further refers to Annex II to the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, which explicitly mentions Directive 2001/83. On this basis, the ECJ concludes that the two directives are complementary.

As to the hierarchy between the directives, the ECJ holds: “since Directive 2001/83 contains specific rules on the advertising of medicinal products, it constitutes a special rule as compared with the general rules concerning protection of consumers against unfair commercial practices by undertakings towards them, such as those provided for in [the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market]. […] It follows therefrom that, in the event of conflict between the provisions of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and those of Directive 2001/83 […] those provisions of Directive 2001/83 take precedence and apply to those specific aspects of unfair commercial practices” (paragraphs 80 en 81).