With the
Ker-Optika judgment that I wrote about before in relation to
internet sales of medical devices and
online sale of eHealth services the European Court (ECJ) set
boundaries for national legislation in the EU regulating the
internet sales of medical devices. To sum it up, the fact that an
expert consult is necessary initially does not justify a
prohibition on internet sales of a medical device.
It is a common principle in EU internal market law that what
member states are not allowed to prohibit via national law
companies are not allowed to prevent by means of agreements. It is
therefore no great surprise that the ECJ, when faced with the
question if internet sales for prestigeous cosmetic products could
be prohibited in a selective distribution agreement on grounds of
'cosmetovigilance', ruled in the recent
Pierre Fabre Dermo-Cosmétique case that it
"has not accepted arguments
relating to the need to provide individual advice to the customer
and to ensure his protection against the incorrect use of products,
in the context of non-prescription medicines and contact lenses, to
justify a ban on internet sales" (point 44)
The ECJ referred explicitly to the Ker-Optika case in this
respect as well as to the DocMorris case in which it also
dissociated the internet delivery of a regulated product (medicinal
product) and the need to protect consumers against incorrect use of
the product. Consequently, the ECJ held that
"in the context of a
selective distribution system, a contractual clause requiring sales
of cosmetics and personal care products to be made in a physical
space where a qualified pharmacist must be present, resulting in a
ban on the use of the internet for those sales, amounts to a
restriction by object within the meaning of that provision where,
following an individual and specific examination of the content and
objective of that contractual clause and the legal and economic
context of which it forms a part, it is apparent that, having
regard to the properties of the products at issue, that clause is
not objectively justified." (point 47)
The manufacturer of the cosmetic products had further submitted
that the prohibition was allowed because it was equivalent to a
prohibition on operating out of an unauthorised establishment,
which was exempted under
Regulation 2790/1999, the old vertical restraints block
exemption. That argument did not convince the ECJ either because it
held that
"prohibiting de facto
the internet as a method of marketing cannot be regarded as a
clause prohibiting members of the selective distribution system
concerned from operating out of an unauthorised place of
establishment within the meaning of Article 4(c) of Regulation No
2790/1999″ (point 55)
This will play out in the same way under the new vertical
restraints block exemption,
Regulation 330/2010, which has exact hardcore restriction that
removes an agreement from the safe harbour in articel 4 (c). That
does not mean that a manufacturer has no instruments at all to
protect consumers even if it cannot prevent internet sales as such,
since the Commission has stated in its
FAQ about the new block exemption:
"However, certain vertical
restraints on online sales can be justified because they eventually
benefit consumers. For instance a supplier may impose a
requirement, as for off-line sales, that, in a selective
distribution system, a distributor must not sell online through a
website that does not meet the agreed quality standards, or to
unauthorised distributors."
In the end however the judgment of the ECJ does not mean that
internet sales cannot be prohibited in a selective distribution
system under any circumstances. The manufacturer needs an objective
justification derived from the properties of the product at issue.
So, while it may not be objectively justifiable to prohibit
internet sales for low-risk over-the-counter medical devices, it
may well be that higher risk devices sales on the internet can be
prohibited as I have written in
http://medicaldeviceslegal.com/2010/12/05/eu-court-rules-on-internet-sales-restrictions-for-medical-devices/my
post about the Ker-Optika case, when discussing 'burden of
justification' in detail
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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Specific Questions relating to this article should be addressed directly to the author.
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