Case C-108/09

Ker-Optika bt

v

ÀNTSZ Dél-dunántúli Regionális Intézete

(Reference for a preliminary ruling from the Baranya megyei bíróság)

(Free movement of goods – Public health – Selling of contact lenses via the internet – National legislation authorising the sale of contact lenses solely in medical supply shops – Directive 2000/31/EC – Information society – Electronic commerce)

Summary of the Judgment

1.        Approximation of laws – Electronic commerce – Directive 2000/31

(European Parliament and Council Directive 2000/31)

2.        Free movement of goods – Quantitative restrictions – Measures having equivalent effect

(Art. 34 TFEU and 36 TFEU; European Parliament and Council Directive 2000/31, Art. 3(4))

1.        National rules relating to the selling of contact lenses fall within the scope of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) since they concern the act of selling such lenses via the Internet, namely, in particular, the on line offer and the conclusion of the contract by electronic means. On the other hand, the national rules relating to the supply of contact lenses are not covered by that directive.

(see paras 28, 31, 77, operative part)

2.        Articles 34 TFEU and 36 TFEU, and Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), must be interpreted as precluding national legislation which authorises the selling of contact lenses only in shops which specialise in medical devices.

Such legislation constitutes a measure having an effect equivalent to a quantitative restriction, as prohibited by Article 34 TFEU, since the consequent prohibition on the selling of contact lenses via the Internet applies to contact lenses from other Member States, which are sold by mail order and delivered to the home of customers resident within the national territory, and deprives traders from other Member States of a particularly effective means of selling those products, thus significantly impeding the access of those traders to the market of the Member State concerned.

It is true that by reserving the supply of contact lenses to the opticians’ shops which offer the services of a qualified optician, such legislation is appropriate for securing the attainment of the objective of ensuring protection of the health of contact lens users. However, in adopting such legislation, the national legislature exceeded the limits of the discretion which it is allowed to determine the level of protection which it wishes to afford to public health, and that legislation must be held to go beyond what is necessary to attain the claimed objective, since that objective can be achieved by measures which are less restrictive than those provided for under that legislation, namely measures which subject to certain restrictions only the first supply of lenses and which require the economic operators concerned to make available a qualified optician to the customer.

For the same reasons, since it contains a prohibition on selling contact lenses via the Internet, that legislation cannot be held to be proportionate to the objective of ensuring the protection of public health, for the purposes of Article 3(4) of Directive 2000/31.

(see paras 58, 64, 74-76, 78, operative part)