In its decision of 20 April 2023 (Ref.: 81 O 70/22), the Regional Court of Cologne had to deal with the question of whether the delivery of medicines by a delivery service on Sundays and public holidays in North Rhine-Westphalia is unfair and therefore inadmissible. The Regional Court of Cologne answered this question in the affirmative on the grounds that this practice took advantage of the fact that competition on Sundays and public holidays was eliminated by a closure order issued by the competent Chamber of Pharmacists, and that competition could therefore only be seen in emergency pharmacies. This constitutes an infringement of competition law.
The plaintiff is the German Agency to Combat Unfair Competition (Wettbewerbszentrale) and the defendant is a pharmacist who works with an express delivery service. The latter advertised a service that would deliver medicines on 365 days a year, including Sundays and public holidays. The plaintiff was of the opinion that the acceptance of orders, the preparation of the goods and the handover to the courier driver by the pharmacist constituted a violation of the North Rhine-Westphalian Shop Opening Hours Act (LÖG NRW) and the North Rhine-Westphalian Sunday and public Holiday Observance Act (FTG NRW). The defendant, on the other hand, was of the opinion that his actions were not objectionable as they were covered by Section 23 of the German Pharmacy Operating Ordinance (ApBetrO).
In its decision, however, the Regional Court of Cologne followed the plaintiff's argumentation and ruled that the delivery of medicinal products on Sundays and public holidays constituted a violation of Section 3 FTG NRW and Section 7 para. 1 LÖG NRW. The regulations are each market behaviour regulations. The delivery of medicines by bicycle courier is of a workday nature and is perceived by consumers as disruptive due to the increased volume of bicycle couriers on Sundays and holidays. Although the activity is carried out by the express delivery service, the defendant must accept responsibility for this conduct as an accomplice. Likewise, there has been a violation of Section 7 para. 1 of the LÖG NRW, since Paragraph 2 of that provision provides for a closure order authorising the Chamber of Pharmacists to regulate the closure of a number of pharmacies on Sundays and public holidays on a rotating basis. The defendant gains a competitive advantage by defying the closure order actually issued by the Chamber of Pharmacists. He is taking advantage of the fact that competition has been eliminated by the closure order pursuant to Section 7 para. 2 LÖG NRW and that competition can therefore only be seen in emergency pharmacies. This is unfair competition. Furthermore, the defendant cannot invoke Section 23 of the ApBetrO and the resulting obligation of pharmacies to be on permanent duty.
