The European Court of Justice (ECJ) has found that a law prohibiting the sale of contact lenses over the internet was in violation of European Union law.
Background
A Hungarian law provided that contact lenses could not be sold over the internet. Such products could only be sold in specialist shops which satisfied conditions such as having suitably qualified staff. An internet provider of contact lenses challenged this requirement and the local court referred the matter to the ECJ for a preliminary ruling.
ECJ Judgment
The ECJ found that selling medical devices such as contact lenses comes within the scope of the E- Commerce Directive. However, national rules imposing conditions governing the sale of goods over the internet fall within the scope of the Treaty on the Functioning of the European Union, in particular the free movement of goods.
In order for restrictions to the free movement of goods to be permitted, the restrictions must be objectively justified (e.g. on public health grounds) and there must not be other less restrictive means by which the objective can be achieved. The court found that the objective of protecting the health of contact lens users could be achieved through less restrictive measures. The court noted that customers could be advised by opticians through interactive features on the website, the use of which was mandatory before the lenses could be purchased. Furthermore, comprehensive eye exams are generally required only when lenses are first supplied. The court concluded that the Hungarian law prevented the free movement of goods and could not be justified on public health grounds as there were less restrictive measures which could have been adopted.
Conclusion
This case will be welcome news to online retailers and emphasises that national rules applicable to internet sales of medical devices must be proportionate, even where the ultimate goal is to protect the health of individuals.
For further information please contact John Magee or David Cullen of our Life Sciences department. .
