Pharmacy advertising under EU legal framework

The Court of Justice of the European Union (CJEU or "Court") issued a Judgment on June 19, 2025 (C-200/24, ECLI:EU:C:2025:459) regarding the national prohibition on advertising pharmacies, pharmaceutical outlets, and related activities. In this ruling, the Court clarified that while Member States have discretion to regulate pharmacy advertising, an absolute ban is incompatible with EU law unless it is shown to be both necessary and proportionate.

To understand the legal issues addressed in this case, it is essential to examine the relevant regulatory provisions. The main rules framing the analysis are as follows:

• Article 8(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the "E-Commerce Directive"): "Member States shall ensure that the use of commercial communications which are part of, or constitute, an information society service provided by a member of a regulated profession is permitted subject to compliance with the professional rules regarding, in particular, the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of the profession".
• Article 49 Treaty on the Functioning of the European Union (TFEU) reads as follows: "[…] restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. […] Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies […]".
• Article 56 TFEU provides: "[…] restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended".
• Article 94a(1) of the Polish Law on the reimbursement of medicines, foodstuffs intended for specific dietary requirements, and medical devices (ustawa o refundacji leków, srodków spozywczych specjalnego przeznaczenia zywieniowego oraz wyrobów medycznych, the "Polish Pharmaceutical Law") establishes: "Advertising for pharmacies and pharmaceutical outlets and the activities thereof shall be prohibited. Information relating to the location and opening hours of pharmacies or pharmaceutical outlets shall not constitute advertising".

Background

In 2019, the European Commission initiated formal proceedings against the Republic of Poland, arguing that Poland’s Pharmaceutical Law infringed upon various provisions of EU law. In particular, the Commission claimed that the Polish prohibition contravened article 8(1) of the E-Commerce Directive, as well as articles 49 and 56 of the TFEU. Poland responded to the Commission’s challenge by defending its legislation, stating that it pursued legitimate objectives: ensuring a high level of public health protection, preventing the excessive consumption of medicinal products and safeguarding the independence of pharmacists from commercial pressures exerted by pharmacy owners.

After multiple exchanges, the Commission brought the case before the CJEU.

CJEU’s analysis

The Court’s legal analysis focused on two areas: whether the Polish legislation violated (i) the harmonized framework set forth by article 8(1) of the E-Commerce Directive and (ii) the fundamental freedoms recognized by the TFEU.

The CJEU reasoned that article 8(1) specifically prevents Member States from imposing complete advertising bans on regulated professions, including pharmacists, insofar as those communications are provided in part or in whole by electronic means. While professional rules may dictate permissible formats or content to ensure independence and protect public trust, they cannot result in an outright prohibition.

Turning to the TFEU provisions, the Court observed that the ban constituted a restriction on both the freedom of establishment (article 49 TFEU) and the free provision of services (article 56 TFEU). Under the Polish Pharmaceutical Law, pharmacies—especially those new to the Polish market or based in other Member States—would be prevented from informing potential patients about their services, which the CJEU deemed excessive. The Polish law failed to distinguish between legitimate forms of marketing (for example, conveying information on services or screening programs) and any potentially exploitative practices aimed at spurring excessive medicine consumption.

Moreover, the Court observed that Poland had not convincingly demonstrated that the general advertising ban significantly contributed to reducing excessive or inappropriate medication consumption. The existence of alternative channels for purchasing non-prescription medicines, such as the availability of certain products in supermarkets or convenience stores, undermined the argument that strict limitations on pharmacy advertising would effectively protect patient health. The CJEU also pointed out the availability of less restrictive measures, such as content-specific advertising rules, which could require pharmacies to present their services in a balanced and responsible manner instead of forbidding promotional activities outright.

In conclusion, the Court held that the Polish government failed to prove that the advertising ban was necessary or proportionate. It also rejected the contention that the prohibition was essential for safeguarding the professional independence of pharmacists. The Court suggested that more narrowly tailored measures could effectively uphold ethical standards while allowing pharmacies to share legitimate information with the public.

Application to Spanish Law

Spanish legislation in the pharmaceutical sector must ensure that any restriction on advertising satisfies the criteria of proportionality and necessity as set forth by the Court of Justice of the European Union.

In Spain, various Autonomous Communities—including Aragon (article 10.1), Asturias (article 6.2), the Canary Islands (article 9.1), Cantabria (article 18.2), Extremadura (article 19.2), Galicia (article 28.3), Madrid (article 22.3), and Navarra (article 23)—prohibit pharmacy advertising or promotional activities. These prohibitions are justified on the principle of safeguarding each citizen’s freedom to choose a pharmacy without undue influence. However, in keeping with the reasoning of the CJEU, national or regional authorities must still ensure that such prohibitions are proportionate to the interests they seek to protect and do not exceed what is strictly necessary to achieve legitimate public health objectives.