The conditional backing of the European Court of Justice came indirectly a few weeks ago with the publication of an opinion expressed by its attorney general, Paolo Mengozzi, on a number of questions raised by a Hungarian court in reference to a foreign e-commerce operation, Ker-Optika, trading in the country.
In essence, the court concluded that a total ban would amount to hindering the free movement of goods between one European country and another, considering that a foreign retailer would have a harder time in setting up a brick-and-mortar operation in another country than a local player. The Hungarian government demands that contact lenses can only be sold by a certified optician or optometrist from a physical store with its own workshop.
The court further argued that the sale of such medical devices over the internet could not be prohibited outright for health protection reasons, especially for customers who have been using the same contact lenses for a while. It indicated that it would be sufficient to alert consumers to the necessity of getting professional advice at the start and in case of problems.
The European court's opinion may contribute to determining a future directive of the European Union that would liberalize or regulate sales of contact lenses over the internet. The national legislation on this issue varies widely from the liberal attitude of the British government and the stricter attitude of the French government.
The issue will be debated within Eurom 1, the European optical industry association, at a meeting in Strasbourg on July 5-6, prior to a major presentation of its position on driving safety and other issues to members of the European Parliament and the European Commission.
A Hungarian court requested the opinion of the European Court of Justice after Ker-Optika appealed a decision made by regional authorities in August 2008 and backed by a local court in November of the same year. In issuing its statement, the court availed itself of written observations by the European Commission and by the Greek, Spanish, Hungarian and Dutch governments. These parties also participated in a public hearing last April 15.
The European attorney general said it was necessary to dissociate the medical consultation phase, culminating in the release of a prescription, from the actual delivery of the merchandise to the consumer, where local regulations may call for the use of specialized personnel at this stage of the process. In previous disputes about other types of products, the European Court has ruled in favor of allowing the sale of videos and medicines over the internet.