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BGH refers question on data protection and competition law to the ECJ

The I. Civil Senate of the German Federal Court of Justice, which is responsible for competition law, has sent the Court of Justice of the European Union the questions addressed in this blogpost for a preliminary ruling, namely whether a pharmacist who sells pharmaceuticals on an Internet sales platform is in breach of the data protection provisions applicable to health data, and whether such a breach can be pursued by another pharmacist with an action under competition law before the civil courts.

The Federal Court of Justice has stayed proceedings I ZR 223/19 and referred the question to the Court of Justice of the European Union for a preliminary ruling as to whether the provisions in Chapter VIII of the General Data Protection Regulation preclude national provisions which – in addition to the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the legal protection options of the data subjects – grant competitors the power to take action against the infringer by way of an action before the civil courts for infringements of the General Data Protection Regulation from the perspective of the prohibition of engaging in unfair commercial practices.

In addition, the Federal Court of Justice asked the Court of Justice of the European Union whether the data that customers of a pharmacist acting as a seller on an Internet sales platform enter when ordering pharmacy-only but not prescription-only medicines on the sales platform (name of the customer, delivery address and the information necessary for the individualization of the pharmacy-only medicine ordered) constitute health data within the meaning of Art. 9 para. 1 DSGVO as well as data on health within the meaning of Art. 8 para. 1 of Directive 95/46/EC (Data Protection Directive, DSRL) are.

The BGH has suspended the other proceedings mentioned in my blog post, I ZR 222/19, pending a decision on its reference for a preliminary ruling in the case I ZR 223/19.


Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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