Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 10 August 2009 — MSD Sharp & Dohme GmbH v Merckle GmbH

(Case C-316/09)

2009/C 267/66

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: MSD Sharp & Dohme GmbH

Defendant: Merckle GmbH

Question referred

The following question relating to the interpretation of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, (1) most recently amended by Directive 2008/89/EC of the European Parliament and of the Council of 11 March 2008, (2) is hereby referred to the Court of Justice of the European Communities for a preliminary ruling:

Does the scope of application of Article 88(1)(a) of Directive 2001/83/EC on the Community code relating to medicinal products for human use extend to the advertising to the general public of medicinal products which are available only on prescription where that advertising contains only information which was placed before the authorising authority in the course of the marketing authorisation procedure and which is accessible in any event to every person acquiring the product, and where that information is not made available to an interested party on an unsolicited basis but can be accessed only through the internet when the party concerned takes steps to do so?

(1)  OJ 2001 L 311, p. 67.

(2)  OJ 2008 L 81, p. 51.