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04 November 2020
The applicant was a competition association and the defendant was a company which advertised on its German website digital services provided by its subsidiary (a health insurer). In particular, patients living in Germany were offered the opportunity to obtain diagnoses, treatment recommendations and sick notes for unspecified cases and situations by means of an app on their smartphones from doctors based abroad.
The plaintiff argued that Paragraph 9 of the Law on Advertising in the Health Sector (HWG, new version) also prohibits advertising for a digital healthcare model in which doctors based abroad provide exclusive advice and treatment via communications media. The defendant's unrestricted advertising of sick leave by smartphone did not correspond to the professional standard to which doctors in Germany are subject.
The defendant took the view that its model and the advertising for it were admissible. Only medical practitioners and emergency doctors with experience and specialisation in remote treatment who were licensed in Switzerland or the European Union were involved; such models have been allowed in Switzerland for many years. The defendant also pointed out that a visit to a doctor was unavoidable in acute cases. Lastly, advertising cannot be unlawful if the medical examination and treatment method advertised are permitted.
The Munich District Court I ordered the defendant to pay the costs.
The Munich Higher District Court dismissed the defendant's appeal. Section 9 of the HWG (old version) prohibits advertising for remote treatment and there is no restrictive interpretation to the effect that the prohibition on advertising is accessory to the inadmissibility of the treatment advertised.(1)
In principle, this prohibition would continue to apply even after Section 9 of the HWG (new version) had been supplemented by a second sentence. Even then, advertising for remote treatment is admissible only in exceptional cases. The defendant's advertising was too general and did not meet the requirements of Section 9(2) of the HWG (new version). Moreover, advertising for sick leave by video consultation with doctors based abroad could not be based on Section 9(2) of the HWG (new version)
The Munich Higher District Court correctly stated that Section 9 of the HWG (old version) could not be restricted to the effect that the prohibition of advertising for remote treatment is accessory to the inadmissibility of the remote treatment advertised. The ruling thus followed existing case law (District Court of Berlin GRURRS 2019, 36688; Kammergericht of Berlin GRUR-RS 2019, 40959). The Munich Higher District Court also agreed that Section 9 of the HWG (new version) contains a fundamental advertising ban that does not apply only in exceptional cases – namely, if personal contact with the person to be treated is not required according to generally accepted professional standards.
In practice, the Munich Higher District Court's judgment underlines the importance of a detailed case-by-case examination of advertising (for remote treatment). Such an examination must cover not only competition law aspects in general, but also medical aspects in particular, such as generally accepted professional standards.
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