Electronic Commerce Of Contact Lenses. Eva Kon. Kitsiou

 Decision ECJ 2^nd December 2010, Ker-Otica, C-108/09

A.Relevant Legal Framework

Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘the Directive on electronic commerce.

Recital 18 in the preamble to the Directive on electronic commerce states inter alia that «activities which by their very nature cannot be carried out at a distance and by electronic means, such as the statutory auditing of company accounts or medical advice requiring the physical examination of a patient are not information society services».

Article 1 παρ.3 provides that «this Directive complements Community law applicable to information society services without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts and national legislation implementing them in so far as this does not restrict the freedom to provide information society services».

Β. Sale of Contact Lenses

          In the sale of contact lenses is classified as health service the definition, given by the European Union legislation, of an information society service does not in fact appear capable of being applied to that particular activity. Selling contact lenses via Internet is acceptable given that the phase of medical advice, is separated from the actual sale of those lenses. Prior medical advice can be held to be justified as the use of contact lenses may damage the user’s helth (p.e. can cause eye inflammations and even lasting visual impairment).  

C. Consideration according to the freedom of community commerce

The advantage of selling on‑line is precisely that the Internet offers traders a shop window with a visibility that transcends frontiers, without the trader bearing the costs and constraints associated with the possession of a ‘real’ shop. On‑line selling is an alternative selling arrangement to trade as traditionally understood and represents an extra means whereby national traders can reach customers who are not confined, from a geographical point of view, to the population around the physical shop.

          Furthermore, the Court seems to have therefore clearly accepted that the prohibition on Internet sales of a category of goods penalises traders who do not operate within the national territory more than it penalises those who do. It is also apparent from settled case-law that Article 34 TFEU reflects the obligation to comply with the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of EU products to national markets.

Prohibiting absolutely Internet sales of contact lenses is not proportionate to the objective pursued of protecting public health as the aforementioned objective can be achieved by means of measures less restrictive of the free movement of goods (p.e. delivery by qualified staff,  insertion of instructions for use in parcels e.t.c.)        

Articles 34 TFEU and 36 TFEU, and Directive 2000/31, must be interpreted as precluding national legislation which authorises the selling of contact lenses only in shops which specialise in medical devices.