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
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
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
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:
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
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