Preslmayr Attorneys at Law updates

Medicinal products by presentation
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 25 January 2017

The Supreme Court recently ruled on the line between dietetic foods and medicinal products by presentation. The defendant was ultimately ordered to cease and desist from distributing its product OMNi-BiOTiC MIGRAene as a medicinal product without marketing authorisation and using the product's name. This decision is important as it keeps a close watch on the thin line between dietetic foods and medicinal products.

Who has jurisdiction between EU Merger Regulation and national cartel law? Please wait!
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 15 December 2016

The Supreme Court recently considered whether a special concentration had to be assessed in accordance with the EU Merger Regulation or national cartel law. The Supreme Court ultimately submitted this question to the European Court of Justice for a preliminary ruling. While an answer to this question is necessary, the interest in quick merger proceedings must also be considered.

Recommendations: line between providing information and advertising
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 16 November 2016

The Supreme Court recently ruled in a case involving a request for an ophthalmologist to cease and desist from providing recommendations for opticians to his clients. According to the court, the prohibition against advertising can be interpreted as allowing physicians to recommend a specific service provider to patients on request. Recommendations will be considered illegal only where they are based on inappropriate motives (eg, to gain a financial advantage).

Retailer settlement and amendments to Cartel Act
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 15 September 2016

After the Supreme Court imposed a record €30 million fine on grocery chain SPAR Österreichische Warenhandels-AG and its subsidiaries, a draft to amend the Cartel Act 2005 was circulated. In addition to implementing EU Directive 2014/104/EC, the draft amends existing limitation periods, reiterates the joint and several liability of cartel members and further promotes Austria's leniency programme regarding the fine procedure.

Shear victory: patient wins compensation for lost surgical scissors
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 10 August 2016

The Supreme Court recently granted compensation for pain and suffering for mental strain to a patient after a piece of broken scissors was left in his body post-surgery. Although the claimant suffered no physical pain, contrary to the appellate court's opinion, the Supreme Court considered his distress and uncertainty to constitute a mental strain following a physical injury.

Calculating SPC application period based on variation of existing marketing authorisation
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 25 May 2016

The Vienna Higher Regional Court recently considered whether an amendment to an existing marketing authorisation could be considered valid under EU Regulation 469/2009. The court referenced established European Court of Justice case law in holding that prior authorisations do not prevent later authorisations of a patented use from being considered as a first authorisation, as long as the earlier authorisation is not protected by the basic patent.

Media cooperation in radio market
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 21 April 2016

Triggered by a complaint from radio station Kronehit, the Federal Competition Authority (FCA) looked into the media cooperation practices between radio broadcasters and concert and festival organisers. The investigation led to a set of FCA guidelines for media cooperation which will address the prevalent inequality between Austrian public broadcaster radio stations and private radio stations as media partners of concert and festival organisers.

Liability of apparent manufacturer of a medical device
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 09 March 2016

The Supreme Court recently clarified the rather sparse jurisprudence in relation to the liability of apparent manufacturers according to Section 3 of the Product Liability Act. This case centred on the question of whether there was an objective impression that the defendant was the manufacturer when the medical device was put into circulation.

ECJ rules on date of first authorisation
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 13 January 2016

The Vienna Higher Regional Court recently referred two questions to the European Court of Justice for a preliminary ruling. The Vienna court wanted to know whether the date of first authorisation for a supplementary protection certificate is determined according to EU law or the law of the member state in question; and if EU law applies, whether the applicable date is the date of authorisation or the date of notification.

Overview (December 2015)
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 17 December 2015

The Cartel Act contains antitrust regulations on cartels, merger control and abuses of dominant market positions. It sets out the rules on what constitutes a cartel, the definition of vertical restrictions, joint dominance and mergers and establishes the conditions for when pre-merger control applies.

Supreme Court rules on advertising of dentist's mobile surgery
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 02 December 2015

The Chamber of Dentists recently sued a dentist's assistant to cease and desist radio advertising – in particular, in relation to information provided about the dentist's mobile surgery in a radio interview. While the Supreme Court noted that a cease and desist claim can be made based on third-party infringements, it held that the plaintiff could not rely on this remedy, as the defendant had reserved the right to approve the interview before it went live.

Cranberry tablets – food or medicine?
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 30 September 2015

Defining the boundaries between medicines, food supplements, dietetic foods and foods is frequently difficult. A recent Supreme Court decision sheds some light on the differences between medicines and dietetic foods, clarifying that the marketing of medicinal products requires marketing authorisation and that products qualify as medicinal products due to their presentation as such, even in the absence of medicinal properties.

Supplementary protection certificate for carrier protein?
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 05 August 2015

Applications for supplementary protection certificates (SPCs) often raise interesting and sometimes difficult questions. Following a preliminary ruling by the European Court of Justice, the Supreme Court recently issued a decision in which it provided the Patent Office with supplementary guidance for further proceedings regarding the grant of an SPC.

Use of spyware during dawn raids
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 02 July 2015

Following a dawn raid of the business premises of one of Austria's biggest food retailers, the company challenged the Cartel Court's order to conduct the raid and the Federal Cartel Authority's actions during the raid – in particular, due to the use of espionage software. The Supreme Administrative Court dismissed the applicant's appeal and ruled that the use of forensic software to access electronic data during a raid is unquestionably legal.

Supreme Court rules on nutritional advice by 'bioenergeticians'
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 03 June 2015

The Supreme Court recently enforced and supported the law which states that only qualified healthcare professionals can provide health-related advice and services. The case involved a 'bioenergetician' who offered services (eg, assessing an individual's nutritional type, testing for adverse food reactions and suggesting nutritional supplements) which are reserved for professionals who have completed specific education.

Forwarding agencies' cartel and its consequences
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 23 April 2015

The Higher Regional Court, acting as the Cartel Court, recently imposed a fine of approximately €17.5 million on 30 forwarding agencies for infringing European competition law by agreeing on tariffs regarding collective freight transport between 2002 and 2007. The Cartel Court's decision preceded significant discussions among competition law specialists and several other Austrian and EU decisions clarifying important questions of law.

New rules on reproductive medicine
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 01 April 2015

The Constitutional Court recently repealed parts of the Act on Reproductive Medicine which had prohibited female civil partners and female life partners from availing of all permitted methods of medically assisted reproduction. Under the amended act, homosexual and heterosexual individuals will have equal access to medically assisted reproduction. However, the amendment still permits different treatment of male and female homosexual couples.

New settlement policy
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • 19 February 2015

Following criticisms of an apparent lack of information and transparency in Federal Competition Authority (FCA) settlement proceedings, the FCA has issued guidelines on its settlement policy, elaborating on its legal position and practice. While it is clear that settlements provide some legal certainty for undertakings, they must be treated with caution, as settlement decisions include a binding sentence of guilt.

Pneumococci vaccination campaign
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 14 January 2015

The Supreme Court recently had to determine whether an advertising campaign regarding pneumococci aimed at the general public violated the Medicinal Products Act's restrictions on the advertising of medicinal products. The court dismissed the claim, holding that since none of the ads accessible to the public contained a direct or indirect reference to a particular medicinal product, the act was not violated.

Can patients receive refund for alternative medical treatment abroad?
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 19 November 2014

A recent Supreme Court case considered a plaintiff's claim to obtain a refund for costs incurred from her daughter's alternative medical treatment abroad. The plaintiff's claim was denied, but the decision clarifies that social security institutions must bear the costs associated with the off-label use of medicines if an acceptable and promising treatment using medicines with marketing authorisation is unavailable or unsuccessful.

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