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 Directive 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 Directive “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 Directive, 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 Directive]. […] It follows therefrom that, in the event of conflict between the provisions of the Unfair Commercial Practices Directive 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).