Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete.
Date: 2010-12-02
27. Lastly, it should be stated that the activity of selling medical devices such as contact lenses is not listed among the activities to which, under Article 1(5) of Directive 2000/31, that directive is not applicable.
43. In that regard, it is settled case-law that, where a national measure relates to both the free movement of goods and another fundamental freedom, the Court will in principle examine it in relation to one only of those two fundamental freedoms, if it appears that one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, Case C‑275/92 Schindler  [1994] ECR I‑1039, paragraph 22, and Case C‑20/03 Burmanjer and Others  [2005] ECR I‑4133, paragraph 35).
44. Further, it follows from Case C‑322/01 Deutscher Apothekerverband  [2003] ECR I‑14887, paragraphs 65, 76 and 124, that a national measure concerning an arrangement characterised by the sale of goods via the Internet and the delivery of those goods to the customer’s home is to be examined only with regard to the rules relating to the free movement of goods and, consequently, with regard to Articles 34 TFEU and 36 TFEU.
47. According to settled case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 34 TFEU (see, inter alia, Case 8/74 Dassonville  [1974] ECR 837, paragraph 5, and Case C‑110/05 Commission  v Italy  [2009] ECR I‑519, paragraph 33).
48. 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 (see Commission  v Italy , paragraph 34 and the case‑law cited).
49. Accordingly, measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having an effect equivalent to quantitative restrictions, as are rules that lay down requirements to be met by such goods, even if those rules apply to all products alike (see Commission  v Italy , paragraphs 35 and 37).
50. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept ( Commission  v Italy , paragraph 37).
51. For that reason, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of the case‑law flowing from Dassonville , unless those provisions apply to all relevant traders operating within the national terri tory and affect in the same manner, in law and in fact, the selling of domestic products and of those from other Member States. The application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is by nature such as to prevent their access to the market or to impede such access more than it impedes the access of domestic products (see, to that effect, Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard  [1993] ECR I‑6097, paragraphs 16 and 17, and Commission  v Italy , paragraph 36).
54. As regards the second condition, it is undisputed that the 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 in Hungary. 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 (see, by analogy, in relation to medicinal products, Deutscher Apothekerverband , paragraph 74).
57. According to settled case-law, an obstacle to the free movement of goods may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet overriding requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see, inter alia, Commission  v Italy , paragraph 59 and the case-law cited).
58. In that regard, if that measure is within the field of public health, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a measure of discretion (see Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez  [2010] ECR I‑0000, paragraph 44 and the case-law cited).
63. 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. 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 (see, to that effect, Case C‑271/92 LPO  [1993] ECR I‑2899, paragraph 11).
64. While not entirely eliminating the risks incurred by users of lenses, the establishment of a link to a qualified optician and the services provided by such an optician are likely to reduce those risks. Accordingly, by reserving the supply of contact lenses to the opticians’ shops which offer the services of such an optician, the legislation at issue in the main proceedings is appropriate for securing the attainment of the objective of ensuring protection of the health of those users.
69. However, customers can be advised, in the same way, before the supply of contact lenses, as part of the process of selling the lenses via the Internet, by means of the interactive features on the Internet site concerned, the use of which by the customer must be mandatory before he can proceed to purchase the lenses (see, to that effect, as regards the selling of medicinal products via the Internet, Deutscher Apothekerverband , paragraph 114).
73. Moreover, the Member State may require the economic operators concerned to make available to the customer a qualified optician whose task is to give to the customer, at a distance, individualised information and advice on the use and care of the contact lenses. The provision of such information and advice at a distance may, moreover, offer advantages, since the lens user is enabled to submit questions which are well thought out and pertinent, and without the need to go out (see, to that effect, as regards the selling of medicinal products via the Internet, Deutscher Apothekerverband,  paragraph 113).
76. 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.