The Ker-Optika Case

1
The Ker-Optika Case

• Gábor Csiszér
• Ministry of National Development
• Department of
• Electronic Communications,
• Postal Services and
• Information Society
• Belgrade, 26.10.2010.

2
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)

3
Ker-Optika

• Ker-Optika - 2
• In his opinion Advocate General Mengozzi
  explained that
• Directive 2000/31/EC covers only certain aspects
  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

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• Thank you for your attention!
• gabor.csiszer_at_nfm.gov.hu