Cases C-786/18 Ratiopharm GmbH v Novartis Consumer Health GmbH

Date of Judgment: 2 June 2020

EU Member State: Germany

Facts: Novartis, the manufacturers of Voltaren Schmerzgel, a pain reliever gel containing the active substance Diclofenac, sought to prohibit Ratiopharm distributing free samples of its generic equivalent product to pharmacists. They claimed that such distribution was unlawful, because German law prohibited the distribution of free samples of medicinal products to anyone other than doctors.

The German Federal Court of Justice sought a preliminary ruling from the CJEU as to whether the Community Code relating to medicinal products for human use – as laid down in Directive 2001/83/EC and amended by Directive 2004/27/EC – allows for the distribution of free samples of medicinal products to pharmacists.

Decision: The Court held that the Community Code does not authorise the distribution of free samples of medicinal products available only on prescription to anyone except those who are authorised to prescribe such products, namely doctors. This was because such products are required to be used under medical supervision on account of dangers or uncertainty of effects which may arise from their use.

On the other hand, the Court held that the Code does not preclude national laws from authorising the distribution to pharmacists of free samples of medicinal products the sale of which do not require a prescription, since the same imperatives for medicinal supervision do not exist with respect to this category of medicinal products and it may be beneficial for pharmacists to be able to familiarise themselves which such products

Case C-378/19 President of the Slovak Republic

Date of Judgement: 11 June 2020

EU Member State: Luxemborg

Facts: The President of the Slovak Republic brought an action before the Constitutional Court of the Slovak Republic seeking a declaration that certain national provisions, considered to be constitutional, are incompatible with Directive 2009/72/EC, referred to as ‘the electricity market directive’.

Two points raised as interference with Slovak regulatory authority; the first involved the transfer from the President of the Slovak regulatory authority to the government of the ability to appoint and dismiss the president of that authority and the second involved the number of parties to the price-setting procedure.

Decision: While the court observed that the Directive requires Member States to ensure that the authority carries out its regulatory tasks free from external influence, the court found that the Directive does not prescribe the Member States authority or authorities which must be responsible for appointing and dismissing board or senior members of said authority, in particular the president.

The court also decided that ‘the directive does not prohibit the government of a Member State from being able to appoint and dismiss the president of the national regulatory authority, to the extent that that authority’s independence is duly safeguarded. […] the Court states however that the directive does not prohibit representatives of national ministries participating in certain procedures concerning price setting’.

Case C-88/19 Alianța pentru combaterea abuzurilor v TM and Others

Date of Judgement: 11 June 2020

EU Member State: Luxemborg

Facts: This case involved a previous decision regarding animal species protected under Art. 12(1) of Directive 92/43/EEC.

A group of employees of an animal protection association, along with a veterinary surgeon, captured and relocated a wolf which was found on a property between two conservation areas protected under the Habitats Directive. The capture was not safe and the unsecured wold escaped into a nearby forest. The question arose here as to whether the protection provisions contained in the Directive extends to the outskirts of human inhabited areas.

The court stated that Art. 12(1)(a) requires Member States to establish measures to protect animal species in their natural range, prohibiting killing or capturing of certain species. The court found that, as a wolf’s natural range may be much wider than the areas maintained for them, it would be necessary for the protections found in the Article to extend to these areas.

Decision: The court found the following: ‘The Court confirmed that this system of strict protection laid down in respect of the species listed in point (a) of Annex IV to that directive, such as the wolf, also applies to specimens that leave their natural habitat and stray into human settlements. […] the wording of Article 12(1)(a) of the Habitats Directive, which prohibits the deliberate capture or killing of specimens of protected species ‘in the wild’, does not allow human settlements to be excluded from the scope of the protection under that provision. The use of the words ‘in the wild’ is intended only to specify that the prohibitions laid down in that provision do not necessarily apply to specimens kept in a lawful form of captivity. […] The Court therefore confirmed that the capture and relocation of a specimen of a protected animal species, such as a wolf, can only be carried out under a derogation adopted by the competent national authority on the basis of Article 16(1)(b) and (c) of the Habitats Directive, in particular on the grounds of public safety ’.

Case C-78/18 Commission v Hungary

Date of Judgement: 18 June 2020

EU Member State: Hungary

Facts: Hungary adopted a law which was presented as seeking to ensure the transparency of civil organisations receiving donations from abroad, which required other EU Member States and third countries to have their information published on a public register along with how much they had donated.

The case was brought by the commission as they claimed it infringed upon EU law, specifically Art. 63 TFEU and Arts. 7, 8 and 12 of the Charter.

The donations, the court found, came under Art. 63(1) TFEU as they fit the definition of ‘movements of capital’, with this law restricting this right in a discriminatory manner, as donations received domestically were not subject to the same restrictions. The court stated that these actions could create a climate of distrust with regard to those associations and foundations.

The court also found that Hungary had failed to adequately set out the grounds for implementation of this law and how the law achieved this objective, as well as how those measures applying to all organisations would achieve this goal, as not all donations would be likely to have an impact on public life and debate in comparison to others.

In regards to the Charter, the law was found to not comply with Art. 7 specifically, as it did not respect the right to private life that the donors, along with a failure to adequately submit how the disclosure element was part of the transparency requirements.

Decision: The court ‘upheld the action for failure to fulfil obligations brought by the European Commission against that Member State. The Court held that, by imposing obligations of registration, declaration and publication on certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and providing for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary had introduced discriminatory and unjustified restrictions with regard to both the organisations at issue and the persons granting them such support. Those restrictions run contrary to the obligations on Member States in respect of the free movement of capital laid down in Article 63 TFEU and to Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union, on the right to respect for private and family life, the right to the protection of personal data and the right to freedom of association’.

Case C-754/18 Ryanair Designated Activity Company v Országos Rendőr-főkapitányság

Date of Judgement: 18 June 2020

EU Member State: Hungary

Facts: Police in Hungary found, upon screening a passenger from the UK, found that they did not have a visa. The police considered Ryanair responsible for not performing adequate checks on the passenger and issued a fine against the company.

Ryanair argued that they should not have been fined as the passenger had a valid permanent residence card issued by the UK and should therefore have been authorised to enter under the directive.

The question arose whether, as the UK is not part of the Schengen area, the residence card was sufficient authorisation to enter Hungary.

The court found, upon reading the directive, that the family members of an EU citizen who already holds a residence card should benefit from the exemption to obtain a visa, as the legislator intended this exemption to benefit any EU citizen who holds such a card.

Decision: The court held that a family member of an EU citizen who is not a national of a Member State, but who holds a permanent residence card, is exempt from the requirement to obtain a visa in order to enter the territory of the Member State. This exemption also extends to the family members of the person holding the residence card, both when the card has been issued outside the Schengen area or inside of it as well.