CJEU case C‑21/23 Lindenapotheke – CJEU Judgment (Germany, 2024)

The reference originates from a civil dispute between two competing pharmacists (the controller and DR) brought before a German regional court (Landgericht Dessau-Roßlau – LG Dessau-Roßlau). The controller sold non-prescription but pharmacy-only medicine through Amazon requiring customers to enter their name, delivery address and the information necessary for the individualization of the medicines. On the basis of the German legislation on unfair commercial practices, DR sought an injunction prohibiting the controller from selling pharmacy-only but non-prescription medication through Amazon unless customers could express their consent to the data processing in advance. DR alleged that the sale through Amazon was unlawful under the GDPR as it did not ask for the prior consent of the customer’s as required under Article 9(2) GDPR for the processing of sensitive data. The Regional Court and the Higher Regional Court (Oberlandesgericht Naumburg – OLG Naumburg) held that the marketing of pharmacy-only medication is contrary to paragraph 3 of a national law on unfair competition ([https://www.gesetze-im-internet.de/uwg_2004/__3.html §3 Gesetz gegen den unlauteren Wettbewerb (UWG)]). Also, without explicit consent from the customers, the processing is prohibited under the GDPR since it entails the processing of special categories of personal data. The controller then appealed the case to the Federal Court of Justice (Bundesgerichtshof - BGH) which referred to the CJEU the following preliminary questions: 1) Does the GDPR preclude national provisions which grant competitors the power to take action against the infringer for infringements of the GDPR by way of an action before the civil courts under the prohibition of unfair commercial practices? 2) Are the data of an online pharmacist’s customers in connection with online-orders for pharmacy-only (but not prescription-only) medicines health data within the meaning of Article 9(1) GDPR? 1. First question (Chapter VII