A case initiated with respect to norms that set restrictions on advertising medicinal products
On 8 January 2020, the 4th Panel of the Constitutional Court initiated the case “On Compliance of Sub-para 18.12. of the Cabinet Regulation of 17 May 2011 No. 378 “Procedures for Advertising Medicinal Products and Procedures by Which a Medicinal Product Manufacturer is Entitled to Give Free Samples of Medicinal Products to Physicians” with Article 100 and Article 105 of the Satversme of the Republic of Latvia and the Third Part of Article 288 of the Treaty on the Functioning of the European Union”.
The Contested Norm
Sub-para 18.12. of the Cabinet Regulation of 17 May 2011 No. 378 “Procedures for Advertising Medicinal Products and Procedures by Which a Medicinal Product Manufacturer is Entitled to Give Free Samples of Medicinal Products to Physicians” provides: that it is prohibited to include in the advertising of medicinal products intended for the general public information that promotes the purchase of the medicinal product, justifying the necessity of the purchase of the medicinal product with the price of the medicinal product by announcing a special clearance sale or providing a notification that the medicinal product is sold together with another medicinal product (including for a lowered price) or goods.
The Norms of Higher Legal Force
Article 100 of the Satversme of the Republic of Latvia (hereafter – the Satversme): “Everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views. Censorship is prohibited.”
Article 105 of the Satversme: “Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation.”
The third part of Article 288 of the Treaty in the Operation of the European Union: “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”
The case was initiated with respect to an application submitted by Ltd. “EUROAPTIEKA”. The applicant notes that, on the basis of the contested norm, it had been prohibited from distributing information related to the price of medicinal products upon purchasing together at least 3 goods.
The applicant holds that the contested norm restricts its right to freedom of speech and the right to property. However, the restriction had not been established by law. It is alleged that, in issuing the contested norm, the limits of the legislator’s authorisation has been exceeded; moreover, the Cabinet had not abided by the principle of good legislation. The contested norm is said to not be sufficiently clear. Moreover, the restriction on fundamental rights is not proportional. It is said not to be appropriate, necessary or suitable for reaching the legitimate aim. Moreover, the contested norm, allegedly, is also incompatible with the European Union law.
The Legal Proceedings
The Constitutional Court has requested the Cabinet to submit a written reply on the facts of the case and the legal reasoning by 9 March 2020.
The term for preparing the case is 8 June 2020. The Court will decide on the type of procedure and the date for hearing the case after it has been prepared.
Linked case: 2020-02-0306