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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-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, online 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 ecommerce 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
Thank you for your attention! gabor. [email protected] gov. hu