ECJ says Hungary's contact lens e-commerce ban breaks EU law

Out-Law News | 03 Dec 2010 | 3:00 pm | 3 min. read

A law banning the online sale of contact lenses on health grounds is incompatible with EU law, the European Court of Justice (ECJ) has said. Health can be protected without a full ban on online sales, the Court has ruled.

A Hungarian law said that contact lenses could only be sold from a shop with an optometrist on or ophthalmologist on staff and with a minimum area of 18 square metres or premises with an attached workshop.

Ker-Optika sold contact lenses online until local health authority (ÀNTSZ) for the South Transdanubian region barred it from doing so. The company appealed that ruling and the appeals court asked the ECJ if Hungarian law was compliant with EU cross border trade laws.

The Court examined whether the law broke the terms of the E-Commerce Directive or the EU's constitution, the Treaty on the Functioning of the European Union (TFEU).

The Court said that because the law stopped companies from outside Hungary reaching Hungarian customers it was a restriction on the free movement of goods that seemed to break EU law.

"It is clear that the prohibition on selling contact lenses by mail order deprives traders from other Member States of a particularly effective means of selling those products and thus significantly impedes access of those traders to the market of the Member State concerned," it said in its ruling.

Such restrictions are permissible for policy reasons, and the Court said that ensuring the health of contact lenses wearers was a legitimate aim.

"Given the risks to public health which thus exist, a Member State may impose a requirement that contact lenses are to be supplied by qualified staff who are to alert the customer to those risks, carry out an examination of the customer and recommend or advise against the wearing of lenses, while inviting the person concerned, where necessary, to obtain the advice of an ophthalmologist," said the ruling. "Because of those risks, a Member State may also impose a requirement that, where the wearing of lenses is not advised against, qualified staff are to determine the most appropriate type of lenses, check the positioning of the lenses on the eyes and provide the customer with information on the correct use and care of the lenses."

EU law says that any restrictions must not go further than is necessary to achieve the policy objective, though. And it said that Hungary could still protect the health of its citizens and allow cross border trade in lenses.

"As regards the requirement that the customer must be physically present to have his eyes examined by an optician at the sales outlet, it must be observed, first, that precautionary examinations, carried out for investigative purposes, can be undertaken by ophthalmologists in places other than opticians’ shops," said the ruling.

"There is nothing in the documents submitted to the Court to suggest that it is a requirement of the legislation at issue in the main proceedings either that an optician must make every supply of lenses dependent on a precautionary examination or on medical advice having first been obtained or that those conditions are imposed, in particular, on each occasion when there is a series of supplies of lenses to the same customer," it said.

"At the time of subsequent supplies, there is, as a general rule, no need to provide the customer with such services," it said. "It is sufficient that the customer advise the seller of the type of lenses which were provided when lenses were first supplied, the specifications of those lenses having been adjusted, where necessary, by an ophthalmologist who has issued a new prescription which takes into account any change in the customer’s vision."

The ECJ said that this disproportionate effect meant that the law was not compatible with EU law.

"Where a Member State adopts legislation such as that at issue in the main proceedings, it exceeds the limits of the discretion [allowed it], and that legislation must therefore be held to go beyond what is necessary to attain the objective the Member State claims to pursue," said the ruling. "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."

The Court said that the TFEU and E-Commerce Directive meant that Hungary could not have a law which banned the selling of lenses except in shops specialising in medical devices.