An Exceptional Judicial Journey Marked by a Strategic Preliminary Reference to the ECJ
Initiated in 2015 by the Union des Groupements de Pharmaciens d’Officine (“UDGPO”), an association representing French pharmacy groups, the dispute concerned the lawfulness of Doctipharma’s business model, which enabled licensed pharmacists to offer non-prescription medicines for sale online to their customers through a digital services platform.
In a judgment dated 31 May 2016, the Nanterre Commercial Court ruled that Doctipharma’s activities were unlawful. That judgment was overturned by the Versailles Court of Appeal on 12 December 2017, before the French Supreme Court quashed the appellate ruling on 19 June 2019, finding that Doctipharma participated in the online sale of medicines by acting as an intermediary.
Against this backdrop, following the adverse French Supreme Court ruling, Franklin partner Lionel Lesur, who has been advising DocMorris since 2016, developed and proposed a litigation strategy centered on trying to obtain a preliminary ruling from the ECJ. The objective was to clarify, under EU law, the extent to which Member States may regulate the involvement of digital platforms in the online sale of medicines, with a view to securing an interpretation of the applicable French rules consistent with EU law and, ultimately, leading to recognition of the lawfulness of Doctipharma’s activities.
This strategy was subsequently pursued with Franklin’s Competition & Distribution team, which Lionel Lesur joined in 2020, in close collaboration with Beslay + Rime law firm, which has represented Doctipharma in the domestic proceedings since 2015. It led the Paris Court of Appeal, ruling on remand following cassation, to stay the proceedings and refer six questions for a preliminary ruling to the ECJ by judgment of 17 September 2021.
Working alongside Sidley Austin in the proceedings before the ECJ, including the preparation of written observations and the oral hearing held in Luxembourg on 19 April 2023, Franklin contributed to securing a landmark judgment delivered on 29 February 2024 (Case C-606/21), providing decisive clarification of the legal framework governing online pharmacy services.
In particular, the ECJ confirmed that a service consisting of connecting pharmacists and customers for the online sale of medicines qualifies as an “information society service”. Crucially, it clarified that whether such a service may lawfully be prohibited depends on identifying who actually carries out the sale of the medicines: the platform itself or the pharmacists using its services.
This approach, which differed from the interpretation previously adopted by the French Supreme Court, paved the way for the French courts to reconsider the lawfulness of Doctipharma’s activities.
A Judicial Victory Confirmed Before the French Courts
The ECJ’s judgment first had a decisive impact on parallel criminal proceedings brought against Doctipharma and its former Managing Director for the alleged unlawful practice of pharmacy.
In a judgment dated 1 October 2024, the criminal division of the Paris Court of Appeal upheld the acquittal of both Doctipharma and its former Managing Director, in line with the submissions of the Public Prosecutor, who had initially appealed against the acquittal handed down at first instance, before the criminal division of the Paris Court of Appeal decided to stay the proceedings pending the ECJ’s ruling. This decision, which has become final, thus confirmed, for the first time, that the medicines were actually sold by the pharmacists using the platform, rather than by Doctipharma itself.
In its judgment of 9 October 2026, the Paris Court of Appeal, this time ruling in the civil proceedings on remand following cassation and expressly referring to these two criminal acquittals, in turn confirmed the lawfulness of Doctipharma’s activities, bringing more than ten years of litigation to a successful conclusion.
Giving effect to the ECJ’s preliminary ruling and recalling the principle of the primacy of EU law, the Paris Court of Appeal found that Doctipharma provided a service connecting pharmacists and customers without itself selling the medicines, with the sales remaining the exclusive responsibility of the licensed pharmacists.
The Court also held that, by imposing a general prohibition on the involvement of any intermediary, the Nanterre Commercial Court had extended the scope of the prohibitions exhaustively laid down in the French Public Health Code.
Accordingly, the Paris Court of Appeal overturned the judgment of 31 May 2016, save for the dismissal of UDGPO’s claim for damages in respect of alleged non-material harm, and expressly confirmed that Doctipharma’s activities, as carried out on and through its website, were lawful.
The Court further ordered UDGPO to publish a judicial notice on its website for six months, subject to a penalty of €3,000 per day of delay, and authorised Doctipharma to arrange for the publication of the notice in two professional publications at UDGPO’s expense. UDGPO was also ordered to pay Doctipharma €20,000 in legal costs under Article 700 of the French Code of Civil Procedure, in addition to the costs of the proceedings.
Beyond the significant victory secured for DocMorris and Doctipharma, this judgment has far-reaching implications for the e-pharmacy sector as a whole, by clarifying the legal framework applicable to digital platforms providing services to licensed pharmacists.
It follows a series of major ECJ judgments delivered over more than twenty years at the initiative of DocMorris Group, including Deutscher Apothekerverband v DocMorris, 11 December 2003 (Case C-322/01) and DocMorris v Apothekerkammer Nordrhein, 15 July 2021 (Case C-190/20), which have progressively helped shape the European regulatory framework for the online sale of medicines.
Franklin as Lead Counsel to DocMorris in Strategic Litigation with a Strong European Dimension
Franklin partner Lionel Lesur has advised DocMorris on its development in France since 2016 and has also represented Doctipharma in this exceptional litigation since 2019, drawing on his expertise in French and EU competition law, distribution law and sector-specific regulation, as well as litigation before French and European courts.
Franklin’s Competition & Distribution team is led by Lionel Lesur, Partner, together with Victoria Eppendahl and Camille Awaida, Associates, and worked closely with the firm’s Litigation team, led by Partner Yann Colin, on the criminal aspects of the case.
Franklin would like to thank DocMorris and Doctipharma for their trust throughout the various proceedings in this exceptional case. The firm also extends its sincere thanks to Maîtres Olivia Rime, Joséphine Flament, Alexis Werl, Philipp Bentley, Marion Rivasi, Victor Cracan, Vianney Bouvet-Lanselle and Marion Lambert-Barret, as well as Anne Robert and Maarten Meulenbelt, for their valuable collaboration at various stages of these multiple proceedings.
This matter exemplifies Franklin’s ability to devise and implement sophisticated litigation strategies combining French and EU law to address major commercial and regulatory challenges for its clients. It also highlights the importance of judicial dialogue between national courts and the ECJ in shaping the legal framework applicable to emerging business models, particularly in highly regulated sectors such as healthcare.
