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The Ker-Optika Case. Gábor Csiszér Ministry of National Development Department of Electronic Communications, Postal Services and Information Societ y Belgrade, 26.10.2010. Ker-Optika - 1 Ker-Optika is a Hungarian company, selling contact lenses

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the ker optika case

The Ker-Optika Case

Gábor Csiszér

Ministry of National Development

Department of

Electronic Communications,

Postal Services and

Information Society

Belgrade, 26.10.2010.

ker optika
Ker-Optika - 1

Ker-Optika is a Hungarian company, selling contact lenses

Ker-Optika launched an on-line store, where he sold contact lenses also

Due to the Hungarian healthcare legislation, contact lenses shall be sold only in premises, with an appropriate skilled staff

This is a restriction for entering the product into the retail-market

However, buyers are not restricted to not buy lenses on-line, from a foreign on-line store

(usually they do this, because on-line lenses are cheaper)

Hungarian Healthcare Authority referred to the legislation above, imposed fine to Ker-Optika, and banned selling lenses online

Ker-Optika appealed to court, referring that:

This activity falls under the scope of e-commerce directive, and the ban of prior authorization (Art. 4.)

Hungarian legislation conflicts with the „free movement of goods and services” principle (Art. 28 EC)

Hungarian Authorities say, that:

This is not an e-commerce directive issue

selling contact lenses requires medical advice

The case is before the ECJ (C-108/09)

Ker-Optika
ker optika1
Ker-Optika - 2

In his opinion Advocate General Mengozzi explained that

Directive 2000/31/EC covers only certainaspects of information society services

According to recital (21) of the Directive the coordinated field covers only requirements relating to on-line activities such as on-line information, on-line advertising, on-line shopping, on-line contracting

The Directive does not cover Member States' legal requirements relating to goods such as safety standards, labelling obligations, or liability for goods, or Member States' requirements relating to the delivery or the transport of goods

This means that the Directive does not establish a fully liberalised e-commerce market in the EU, art 4. is not a „bianco” exemption for all requirement regarding trade

In this case the Hungarian legislation was made for all methods of selling contact lenses, therefore the Directive is not applicable in this regard

Ker-Optika
slide4
Thank you for your attention!

gabor.csiszer@nfm.gov.hu