Publication date: March 25, 2026
Poland has for years represented one of the most restrictive approaches in Europe. That is precisely why the recent judgment of the Court of Justice of the European Union in Commission v Poland, delivered on 19 June 2025 in Case C-200/24, is so important. It does not only affect one domestic provisions. It forces us to revisit a broader question: where is the proper legal balance between public health protection, professional ethics, consumer information, and economic freedom in the pharmacy sector?
The remarks are divided into four parts. First, there are outlined the general European framework for advertising medicinal products and pharmacies. Second, it is explained why pharmacy advertising is treated as a particularly sensitive area under EU law. Third, there is discussed the Polish model, which until now has been exceptionally restrictive. And fourth, there is addressed the recent CJEU judgment and the Polish draft reform, which together may fundamentally reshape the rules of pharmacy communication in Poland.
At EU level, the starting point is that Europe does not operate on the basis of a single, fully harmonised code for pharmacy advertising as such. Instead, the legal landscape is fragmented. There is a detailed EU framework for the advertising of medicinal products, especially through Directive 2001/83/EC, while the advertising of pharmacies themselves is still regulated primarily by national law. But that national autonomy is not unlimited. It must remain consistent with the internal market freedoms, with the E-Commerce Directive, and with the principle of proportionality under EU law. That is exactly where the Polish system ran into difficulty.
The most important EU instrument is Directive 2001/83/EC, the Community code relating to medicinal products for human use. Its advertising rules, especially Articles 86 to 100, are the backbone of pharmaceutical advertising law in Europe. The directive defines advertising broadly and regulates both what may be promoted and how promotion may take place. It is not simply a technical instrument. It reflects a policy choice: medicinal products are not treated like ordinary consumer goods. The law is designed to protect public health, prevent misleading influence on therapeutic choices, and promote rational use of medicines. Those three ideas run through the whole European model.
One major feature of this model is the prohibition on advertising prescription-only medicines to the general public. In Europe, direct-to-consumer advertising of prescription medicines is not accepted. Prescription medicines may be promoted only to healthcare professionals such as doctors or pharmacists. By contrast, over-the-counter products may be advertised to the public, but even then under strict conditions: the message must be objective, not misleading, and consistent with the authorised product information. It must not exaggerate therapeutic benefits, and it must encourage rational use rather than emotional or manipulative consumption.
EU law also prohibits advertising of medicinal products that do not yet have a marketing authorisation. And, more generally, any advertising must comply with the product’s Summary of Product Characteristics and be grounded in reliable scientific data. That requirement matters because it shows that pharmaceutical advertising is not seen only as commercial speech. It is also treated as a health-related communication which may affect patient behaviour and, in turn, health outcomes. That is why the margin for persuasive marketing is narrower here than in many other sectors.
A further layer of regulation concerns the forms of promotion. Across Europe, various restrictions exist on price promotions, gifts, loyalty schemes, samples, and other financial incentives linked to medicines. There is a recurring concern that financial inducements may distort therapeutic choices and turn medicines into ordinary promotional goods. In some jurisdictions, even discount-based campaigns for medicinal products are viewed with suspicion. The same logic applies to the use of gifts or material advantages. These restrictions are all rooted in the same policy concern: that the purchase and use of medicines should not be driven by aggressive sales techniques.
This leads to an important distinction which is often blurred in practice but is central in law: the distinction between advertising medicines and advertising pharmacies. The former is partly harmonised at EU level; the latter is not. In many Member States, pharmacies may advertise at least some aspects of their activity. Typically, they may communicate their location, opening hours, available pharmaceutical services, sometimes home delivery, vaccination or testing services, and other forms of patient support. This is especially relevant in the digital environment, where EU law has also developed a framework for online sale of medicines, including the common logo for legal online pharmacies and national registers of authorised online sellers. The rise of e-pharmacy and digital health services makes it increasingly artificial to treat all pharmacy communication as inherently suspect.
Against that background, Poland became an outlier. Under Article 94a(1) of the Polish Pharmaceutical Law, there was, until now, a near-total prohibition of advertising of pharmacies, pharmacy outlets, and their activity. In practice, the only clearly permitted category was information on location and opening hours. Enforcement lay with the regional pharmaceutical inspector, who could order cessation of the prohibited activity and impose administrative fines of up to PLN 50,000. What made the Polish system especially problematic was not only the text of the law, but also its interpretation. Neutral statements such as “You can pay by card here” or “We speak Lithuanian here” were treated as unlawful advertising. In other words, the concept of advertising was interpreted so expansively that even practical consumer information could trigger sanctions.
Legally speaking, that approach was always vulnerable. The reason is simple. Even if there is no single EU regulation specifically on pharmacy advertising, Member States cannot legislate in a way that disregards primary EU law and directly applicable internal market principles. In particular, domestic rules must remain compatible with freedom of establishment under Article 49 TFEU, freedom to provide services under Article 56 TFEU, and, where online communication is concerned, with Article 8(1) of Directive 2000/31/EC on electronic commerce, which protects the use of commercial communications by members of regulated professions subject to professional rules. That is the legal architecture against which the CJEU assessed Poland’s total ban.
The judgment of 19 June 2025 in Case C-200/24 is therefore a landmark. The Court held that Poland had failed to fulfil its obligations under Article 49 TFEU, Article 56 TFEU, and Article 8(1) of the E-Commerce Directive. The key point was proportionality. Poland argued that the broad ban was justified by public health concerns, especially the need to combat excessive consumption and overuse of medicines. The Court did not deny that public health is a legitimate aim. But it held that the Polish rule went beyond what was necessary to achieve that aim. In the Court’s view, an absolute prohibition covering essentially all pharmacy advertising was too restrictive and disproportionate.
That proportionality analysis is crucial, especially for an international audience. The Court did not say that pharmacy advertising must be entirely free. Nor did it say that Member States are prevented from regulating pharmacy communications. What it said was more nuanced and more important: yes, a Member State may regulate, restrict, and supervise pharmacy advertising in order to protect public health; but no, it may not impose a blanket prohibition that captures all commercial communication regardless of content, medium, or effect. That is classic EU proportionality review: the legitimacy of the objective is recognised, but the means chosen must be suitable, necessary, and balanced.
The Court also made another important point. Pharmacies do not merely sell medicines. They also provide services. Those services may include pharmaceutical care, diagnostics, advisory functions, and other health-related activities not reducible to drug distribution alone. Once that is acknowledged, the Polish state’s argument becomes weaker. If a pharmacy wants to communicate that it offers a certain lawful service, or that it provides patient-friendly access conditions, or that it has certain facilities, that is not the same thing as stimulating irrational medicine consumption. The Court accepted that pharmacy advertising can also serve legitimate informational purposes and may benefit consumers, including by enabling them to compare prices or learn about available services.
This reasoning has direct practical consequences. It means that the legal debate in Poland is no longer about whether the old absolute prohibition is sustainable. It is not. The real question now is what should replace it. And that is where the draft reform enters the picture.
According to the Polish government’s published project, the reform is intended to implement the CJEU judgment by repealing the total ban and replacing it with a regulated advertising model. The project explicitly states that the purpose is to abolish the total prohibition in Article 94a and define rules for pharmacy advertising compatible with EU law while preserving the ethical framework of the profession. The draft also aims to update sanctions, which had remained unchanged for many years.
Under the draft, pharmacy advertising would be legally defined as any activity consisting in informing or encouraging the use of a pharmacy’s offer in order to increase sales of available assortment, services provided, or implemented programmes. That is a broad definition, but unlike the previous model it does not operate through total prohibition. Instead, it creates a regulated field of permitted communication with specific exclusions. This is a major conceptual shift: from prohibition with a tiny informational exception, to permission with a detailed list of safeguards and prohibitions.
What, then, would remain prohibited? The draft law would prohibit comparative advertising within the meaning of Polish unfair competition law. It would prohibit advertising directed at children or adolescents under 18, and also the use of elements specifically appealing to minors. It would prohibit the use of images or recommendations of famous persons, scientists, and persons with medical education, or even persons suggesting such education. It would prohibit fear-based messaging, including suggestions that failure to use a pharmacy’s offer may worsen health. It would also prohibit unlawful content, violations of professional secrecy, and breaches of pharmaceutical ethics. Finally, and very importantly, it would prohibit offering material benefits such as loyalty programmes or conditional discounts. So the reform is liberalising in structural terms, but still restrictive in substance.
Enforcement would remain in the hands of the regional pharmaceutical inspector. If the inspector orders the cessation of unlawful advertising, that decision would remain immediately enforceable. At the same time, sanctions would become more severe: according to the draft law and the government’s project summary, the maximum administrative fine would be increased from PLN 50,000 to PLN 100,000. So from a compliance perspective, the message is mixed but clear: there will be more room to communicate, but also stronger supervisory expectations and potentially higher penalties for getting it wrong.
The transitional provisions are also extremely important for practice. Administrative proceedings initiated under the old Article 94a and linked to Article 129b, if still pending when the new rules enter into force, are expected to be discontinued. That would be highly beneficial for pharmacy operators currently exposed to ongoing proceedings. The source also raises a further issue: possible state liability for damage caused by final administrative decisions based on a national norm later found contrary to EU law. In Polish private law, that discussion would likely arise in connection with the provisions on state liability for unlawful normative acts and administrative decisions. Even if the practical path to compensation is complex, the legal point is important: the CJEU judgment is not only prospective in effect; it may also shape litigation about the consequences of the previous enforcement model.
Finally, the reform has also provoked understandable concern from the pharmacy profession itself. Representatives of the pharmacy chamber have expressed fear that liberalisation could reopen the door to aggressive marketing techniques, especially online. They are particularly concerned about the future role of artificial intelligence in targeted communications, the difficulty of distinguishing neutral health information from covert advertising, and the risk that large urban pharmacy operators will gain a disproportionate competitive advantage over smaller local pharmacies. Those are serious concerns, and in my view they should not be dismissed. They show that the post-C-200/24 model in Poland will not be a simple story of deregulation. It will be a story of re-regulation, with new lines of dispute around digital marketing, platform visibility, algorithmic targeting, and professional ethics.
This is also where the AI Act begins to matter conceptually. There is no pharmacy-specific lex specialis for AI-driven pharmacy advertising, so the general transparency and governance logic of Regulation (EU) 2024/1689 may become increasingly relevant in future compliance analysis. Even if the AI Act does not itself answer the pharmacy advertising question, it provides the broader regulatory context in which digital promotional practices will be assessed.
First, at EU level, pharmacy advertising sits at the intersection of public health law, market regulation, professional ethics, and digital communications law. It is not a purely national topic, even though much of the detailed regulation remains domestic.
Second, Poland has until now embodied the most restrictive end of the spectrum, largely because of the nearly absolute ban in Article 94a and its expansive administrative enforcement. That model has now been authoritatively rejected by the CJEU as incompatible with EU law.
Third, the future Polish regime will not simply become “advertising-friendly.” Rather, it will move toward a controlled communication model: broader than before, but still ethically constrained, professionally supervised, and heavily conditioned by public health concerns. For international lawyers and foreign investors, this makes Poland especially interesting. It is becoming a case study of how an over-restrictive national rule can be corrected through EU free movement law, yet still replaced by a highly regulated domestic framework rather than by pure liberalisation.