The Court of Justice of the European Union (CJEU) has ruled against Poland for imposing an absolute ban on advertising by pharmacies, a measure deemed excessive in light of EU law requirements
Summary
The Judgment of 19 June 2025 C-200/24 handed down by the CJEU concerns an action for failure to fulfil obligations brought by the European Commission against Poland. The Commission complained that Poland had introduced a general and absolute ban on advertising for pharmacies, thereby infringing both the freedoms of movement guaranteed by Articles 49 and 56 of the TFEU (freedom of establishment and freedom to provide services), and Article 8(1) of Directive 2000/31/EC (Directive on electronic commerce). The CJEU ruled that this ban constituted a disproportionate measure, not justified by the protection of public health, and contrary to the fundamental principles of Union law. It therefore found Poland in breach of its obligations.
Facts
The Polish legislation at issue, and more specifically article 94a of the Pharmaceutical Law, prohibits all forms of advertising for pharmacies and pharmaceutical sales outlets. Only information strictly necessary to identify a pharmacy, such as its name, address and opening hours, is permitted. Any breach of this ban is punishable by a fine of up to 12,000 euros.
This legislation was adopted by Poland with the declared aim of protecting public health, by seeking to limit excessive consumption of medicines, as well as guaranteeing the professional independence of pharmacists. However, the ban applied uniformly to all pharmacies, whatever their mode of operation or target audience, including those offering online services.
The European Commission took the view that this provision infringed EU law, and brought an action for failure to fulfil obligations before the CJEU.
The applicants’ arguments
The Commission argued that the ban imposed by Polish legislation infringed two sets of European standards. Firstly, Directive on electronic commerce, in particular Article 8(1), which guarantees members of regulated professions (such as pharmacists) the possibility of using online commercial communications, subject to compliance with professional rules. And secondly, Articles 49 and 56 TFEU, concerning freedom of establishment and freedom to provide services within the Union.
In the Commission’s view, the Polish ban constitutes a general and absolute restriction on commercial communications, incompatible with Union law. It refers to the Vanderborght case (C-339/15), in which the CJEU had already condemned a similar ban on advertising in the dental care sector.
It added that this ban hindered market access for new pharmacies, particularly foreign ones, and distorted competition by preventing fair communication with consumers. Moreover, Poland had failed to demonstrate that the measure was necessary to achieve the stated objective of protecting public health. In the Commission’s view, less restrictive measures would have sufficed, such as a framework for advertising content or information requirements.
Decision/assessment by the CJEU
The CJEU found in favor of the European Commission on all grounds. Firstly, it found that the general ban on advertising constituted a restriction on commercial communications within the meaning of Directive on electronic commerce. This directive requires such restrictions to be proportionate, i.e. they must not go beyond what is strictly necessary to achieve an objective in the general interest.
The Court recalls that an absolute prohibition can only be justified in exceptional cases, which has not been demonstrated here. Poland has provided no tangible evidence that the ban would have any real effect on reducing excessive drug consumption. Moreover, it has not demonstrated that a less intrusive framework for advertising content would not have sufficed.
As regards the infringement of fundamental freedoms (Articles 49 and 56 TFEU), the CJEU emphasized that the ban creates a competitive disadvantage for new pharmacies, in particular those wishing to establish themselves on the Polish market. It prevents economic operators from advertising their services and therefore constitutes an unjustified obstacle to free competition and freedom of establishment.
Lastly, the Court held that, although the protection of public health is a legitimate objective, it cannot justify such a radical and indiscriminate measure, in the absence of concrete evidence of its effectiveness.
Practical consequences of the ruling
With this ruling, the CJEU has found Poland in breach of its obligations under EU law. Poland is therefore required to amend its legislation to bring it into line with European law. It will have to allow pharmacies to advertise, subject to compliance with professional ethics rules.
For pharmacies established in Poland, this ruling now opens up the possibility of freely communicating about their services, including by electronic means, subject to certain reasonable limits set by national regulations.
For Member States in general, the ruling is a firm reminder that any restriction on economic freedoms must be duly justified and proportionate. The invocation of legitimate objectives such as public health is not enough: it must be demonstrated that the measure is necessary and appropriate, and that no less restrictive alternative is possible.
In short, this ruling reinforces European case law on commercial communications in the regulated professions, reaffirming the primacy of the principle of proportionality and facilitating the opening up of national markets to fair and transparent competition within the framework of the European Union’s internal market.
