by Dr. Detlev Gabel, Erasmus Hoffmann, and Markus Langen
Left to Right: Dr. Detlev Gabel, Erasmus Hoffmann and Markus Langen (photos courtesy of White & Case LLP)
Background
The German Federal Court of Justice (Bundesgerichtshof), tasked with resolving a conflict between two competing pharmacists, sought guidance from the Court of Justice of the European Union (“CJEU”) on interpreting the General Data Protection Regulation (“GDPR”). The defendant’s business sells over-the-counter (“OTC”) medicinal products online. During the ordering process, customers must provide certain information, including their name, delivery address, and details about the relevant OTC product. Invoking German legislation on unfair commercial practices, the claimant, a competitor, asked the German courts to halt this practice of the competing pharmacy, unless there is assurance that customers give prior consent for the processing of their health-related data.
The courts at both the first and second instance determined that the ordering process involves processing of health data, which is prohibited under the GDPR in the absence of explicit customer consent or other justification. The courts found this practice to be in breach of the GDPR, and thus unfair and unlawful under the German Unfair Competition Act. The German Federal Court of Justice sought clarification on whether the GDPR allows national legislation to permit competitors to initiate legal action against a person allegedly violating the GDPR. Furthermore, it inquired if the information provided during the ordering process qualifies as health data under the GDPR, even though the relevant OTC products do not require a prescription.
In its judgement of October 4, 2024, the CJEU provided clarity on these issues.