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TL;DRAn open house contract (Open-House-Vertrag) is a non-exclusive admission system in which a public body contracts with every economic operator willing to supply on conditions fixed in advance, without making any selection among them. In German pharmaceutical practice it is the model used for Rabattverträge (rebate contracts) between sickness funds and manufacturers under §130a Abs. 8 SGB V.
The defining feature is what is absent. There is no Auswahlentscheidung (selection decision). The fund publishes the terms, in particular the rebate, and every applicant meeting the criteria and accepting those terms receives a contract. Nobody wins and nobody loses, because there is no competition for a limited number of slots. Suppliers may join at any point during the term, on the same conditions as everyone already admitted.
That absence is not a stylistic difference. It is the whole point of the model, because it is precisely what places it outside procurement law.
Under §103 Abs. 1 GWB, öffentliche Aufträge are contracts for pecuniary interest between contracting authorities and undertakings for the procurement of supplies, works or services. The EU definition adds the decisive element: Directive 2014/24/EU describes acquisition from economic operators die von diesen öffentlichen Auftraggebern ausgewählt werden, that is, operators selected by the contracting authority.
The European Court of Justice settled the question in Case C-410/14, Dr. Falk Pharma GmbH v DAK-Gesundheit, judgment of 2 June 2016, on a reference from the Oberlandesgericht Düsseldorf. Every serious treatment of the subject anchors here. The Court held that Article 1(2)(a) of Directive 2004/18/EC means that a contract system
mittels dessen eine öffentliche Einrichtung Waren auf dem Markt erwerben will, wobei sie während der gesamten Laufzeit dieses Systems mit jedem Wirtschaftsteilnehmer, der sich verpflichtet, die betreffenden Waren zu im Vorhinein festgelegten Bedingungen zu liefern, einen Vertrag schließt, ohne eine Auswahl unter den interessierten Wirtschaftsteilnehmern vorzunehmen, und ihnen während der gesamten Laufzeit des Systems gestattet, ihm beizutreten,
does not constitute a public contract within the meaning of that directive. Procurement law therefore does not apply, and the procurement review procedure is not the route by which to attack it.
The second limb of the ruling is the one that gets forgotten, and it is the limit on the freedom the first limb grants. Where the subject matter has a clear cross-border interest, the admission procedure must still be designed and operated in accordance with the fundamental rules of the TFEU, in particular the principles of non-discrimination and equal treatment of economic operators and the transparency obligation that follows from them. Open house is free of procurement law, not free of law.
The clearest way to see the model is beside the alternative it replaces.
| Open house contract | Exclusive tender (Ausschreibung) | |
|---|---|---|
| Selection decision | None. This is the defining criterion. | Yes. The authority selects the winner or winners. |
| Number of partners | Unlimited. Everyone meeting the criteria is admitted. | Limited, often a single supplier per lot. |
| Conditions negotiable | No. Fixed in advance by the fund, take it or leave it. | Bidders compete on price and further award criteria. |
| Joining later | Possible at any time during the term, on identical terms. | Not possible. The window closes at the submission deadline. |
| Procurement law applies | No, per ECJ C-410/14. TFEU principles of equal treatment, non-discrimination and transparency still bind where cross-border interest exists. | Yes, in full. |
| Legal challenge | No procurement review of the award as such, because there is no public contract. | Nachprüfungsverfahren before the Vergabekammer. |
| Effect on supply | Several rebated products for the same active ingredient coexist. | Typically one rebate partner per active ingredient and fund. |
The facts of C-410/14 are worth knowing, because they are the template later open-house models follow.
Later decisions have refined the boundaries rather than moved them. The Vergabekammer des Bundes, in its decision of 7 May 2018 (VK 1-31/18) on an open-house model for contrast media, examined admissibility in two stages: first whether the requirements of a procurement-law-free open-house procedure are met, and only if they are not, whether the specific breach means a public contract exists after all. It rejected the application at the first stage.
This is the part that purely procurement-focused treatments leave out. Open house in German pharmacy is not an abstract construct. It runs on two specific rebate provisions, and they behave differently.
| §130a Abs. 8 SGB V | §130a Abs. 8c SGB V | |
|---|---|---|
| Who contracts | Die Krankenkassen oder ihre Verbände | Die Landesverbände der Krankenkassen und die Ersatzkassen |
| Subject matter | Rebates on medicines dispensed at the fund's expense | Rebates on the finished medicines used in parenteral preparations compounded in pharmacies, in oncology, for immediate administration to patients |
| Permitted structures | Volume-tiered rebates, an annual turnover volume with settlement, reimbursement linked to measurable therapeutic outcomes | Rebates on the specific finished medicines used |
| Term | Should run for two years (soll für eine Laufzeit von zwei Jahren erfolgen) | Not specified in the same terms |
| Pharmacy effect | Substitution toward the rebated product under §129 Abs. 1 SGB V | Substitution for finished medicines used in parenteral preparations, also under §129 Abs. 1 SGB V |
A rebate contract only has value if it changes what leaves the pharmacy. That mechanic sits in §129 Abs. 1 SGB V, and it is the piece procurement-law commentary consistently omits.
Where a doctor prescribes by active ingredient only, or has not excluded substitution, the pharmacy must dispense a product identical in strength and pack size, licensed for the same indication, with the same or an interchangeable dosage form. Within that set, substitution ist vorzunehmen toward a product covered by an agreement under §130a Abs. 8 with effect for that patient's fund, unless the framework contract under §129 Abs. 5 provides otherwise. If no such agreement exists, the pharmacy substitutes toward a lower-priced product under the framework contract instead. The same logic extends to finished medicines used in pharmacy-compounded parenteral preparations where a §130a Abs. 8c agreement applies.
Here is the consequence specific to open house, and it differs genuinely from an exclusive tender. Because an open-house model admits every willing supplier, several products for the same active ingredient can hold a valid §130a Abs. 8 agreement with the same fund at the same time. The statute steers the pharmacy toward the rebated set, but it does not by itself pick a winner inside that set. Which of the admitted partners is actually dispensed then follows the framework contract under §129 Abs. 2 and 5 and the pharmacy software implementing it. Rabattvertrag priority narrows the field; under open house it does not narrow it to one.
Rebate status reaches the platform through the licensed ABDA article master data, in two places on the article detail page.
One honest limitation, and our own field survey flagged it: the structure exists, but we have not verified its coverage. In three samples the Rabattvertrag tab was empty. That was expected in each case, because the field is populated only for a generic that is currently under contract and actually in distribution, and the samples were an OTC brand, an originator with EMA approval and a discontinued generic. An empty tab therefore tells you nothing either way about completeness. If rebate coverage is decision-relevant for you, ask us to demonstrate it against your own PZNs rather than taking a coverage claim on trust.
