abante obtains dis­missal of action for dam­ages due to deliv­ery short­falls in ten­dered phar­ma­ceu­ti­cal dis­count con­tracts

Munich rul­ing forms impor­tant land­mark deci­sion in favor of the phar­ma­ceu­ti­cal indus­try

Berlin, April 30, 2026. abante, the largest Ger­man law firm spe­cial­iz­ing in pub­lic pro­cure­ment law, suc­ceed­ed this week in obtain­ing the dis­missal of an exten­sive claim for dam­ages brought by a statu­to­ry health insur­ance fund before the Munich Social Court in favour of a phar­ma­ceu­ti­cal com­pa­ny, which con­cerned sup­ply short­falls in a ten­dered phar­ma­ceu­ti­cal dis­count con­tract. This deci­sion is the first ever rul­ing on this top­ic in eight years and can be seen as a lead­ing deci­sion for numer­ous com­pa­ra­ble legal dis­putes.

Phar­ma­ceu­ti­cal dis­count con­tracts put out to ten­der in Europe-wide ten­der­ing pro­ce­dures usu­al­ly include the oblig­a­tion of the phar­ma­ceu­ti­cal com­pa­ny to sup­ply the phar­ma­ceu­ti­cals cov­ered by the con­tract to whole­salers and phar­ma­cies. If a deliv­ery fail­ure occurs dur­ing the term of the con­tract, health insur­ance funds reg­u­lar­ly assert claims for dam­ages against the phar­ma­ceu­ti­cal com­pa­ny in addi­tion to con­trac­tu­al penal­ties. Whether such claims for dam­ages can be sub­stan­ti­at­ed in terms of rea­son and amount has been dis­put­ed for many years, as have numer­ous relat­ed ques­tions regard­ing the type of basis for the claim, the require­ments for con­crete evi­dence and the cal­cu­la­tion of such claims for dam­ages.

With the excep­tion of a sin­gle social court deci­sion from 2018, which has not yet become final and bind­ing and which dis­missed such a claim for dam­ages by a health insur­ance com­pa­ny, there is no case law or leg­isla­tive clar­i­fi­ca­tion on this top­ic, which is of great eco­nom­ic impor­tance to the phar­ma­ceu­ti­cal indus­try. The cur­rent rul­ing by the Munich Social Court on April 28, 2026 is there­fore the first court deci­sion in eight years to once again deal with the top­ic of “dam­ages from dis­count agree­ments” and once again dis­miss a cor­re­spond­ing claim. As ten­der­ing prac­tices and the word­ing of con­tracts for phar­ma­ceu­ti­cal dis­count agree­ments are con­stant­ly evolv­ing, it has been unclear for many years how courts will rule in the event of a dis­pute. As such dis­putes about sup­ply dis­rup­tions only devel­op after a dis­count con­tract has been award­ed, it is not the award­ing cham­bers that decide on this, but the social courts respon­si­ble for the legal rela­tion­ships between statu­to­ry health insur­ance funds and ser­vice providers.

abante Man­ag­ing Direc­tor Prof. Dr. Marc Gabriel, who con­duct­ed the court pro­ceed­ings on behalf of the defen­dant phar­ma­ceu­ti­cal com­pa­ny, com­ment­ed on the first-instance tri­al suc­cess: “The recent deci­sion by the Munich Social Court rep­re­sents an impor­tant mile­stone for com­pa­ra­ble dam­ages dis­putes. This is all the more true as it involved a large num­ber of dif­fer­ent active ingre­di­ents that had been ten­dered in the sin­gle and mul­ti-part­ner mod­el and all the legal issues typ­i­cal of such law­suits were at issue in these pro­ceed­ings.” As the judg­ment was only hand­ed down this week, it can still be appealed to the Bavar­i­an State Social Court.

If you have any ques­tions, please con­tact Prof. Dr. Marc Gabriel (Man­age­ment) or Mir­jam Schmidt (Press) at gabriel@abante.de and m.schmidt@abante.de

Down­load the press release: 2026-04-30 PM abante obtains lead­ing deci­sion on dam­ages in dis­count agree­ments