Ker-Optika v ANTSZ [2010]
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C-108/09 Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete [2010] represents a critical development in the interpretation of European Union law regarding the free movement of goods and the limitations of national legislation under Article 34 TFEU which prohibits, which prohibits quantitative restrictions between Member States on imports and all measures having equivalent effect.
The case arose when Hungarian authorities prohibited Ker-Optika, a company selling contact lenses online, from conducting such sales without operating a physical specialist shop and providing access to optometric or ophthalmologic services. The Hungarian legislation was justified as necessary for the protection of public health, arguing that in-person guidance from professionals was crucial for safe usage. Ker-Optika challenged this prohibition, leading to a referral to the Court of Justice of the European Union (CJEU) to determine whether the national legislation was consistent with EU law.
In its judgment, the CJEU assessed the Hungarian measure in light of both Article 34 TFEU and Directive 2000/31 on electronic commerce. The Court emphasised that any national measure restricting the free movement of goods must be proportionate and should not exceed what is necessary to achieve its objectives. Although the Hungarian rules were framed as measures aimed at protecting public health—a legitimate ground under Article 36 TFEU—the Court concluded that less restrictive alternatives could achieve the same objective. The blanket prohibition on selling contact lenses online, in particular, was considered disproportionate and therefore incompatible with Article 34 TFEU.
The Ker-Optika decision is significant because it represents a shift away from the strict selling arrangements framework established in Keck and Mithouard [1993]. Although the Hungarian measure was ostensibly a selling arrangement, the Court applied a broader market access test, as seen in cases like Commission v Italy [2009], also known as the Italian Trailers case. The market access approach evaluates whether a national measure hinders the ability of goods from other Member States to enter the market, moving beyond a narrow focus on discrimination or equal application. In Ker-Optika, the Court determined that the Hungarian law disproportionately restricted market access for foreign traders selling contact lenses online, particularly because it eliminated an effective sales channel without a sufficient public health justification.
The Ker-Optika case has been widely discussed by legal scholars as an indicator of the CJEU’s evolving approach towards a unified market access test. Critics of the earlier Keck decision have argued that the distinction between product requirements and selling arrangements is overly simplistic and fails to adequately address modern trade barriers. Ker-Optika supports this critique by demonstrating how even non-discriminatory selling arrangements can significantly hinder market access, thereby requiring closer scrutiny. The case also exemplifies the Court’s emphasis on proportionality and the need to consider less restrictive measures when assessing national rules that affect intra-EU trade.
Overall, Ker-Optika illustrates the Court’s gradual movement towards a more holistic assessment of national measures in free movement cases. While the decision still respects certain principles established in Keck, it expands the scope of what can be considered an unjustifiable restriction under Article 34 TFEU, aligning more closely with the realities of cross-border e-commerce and digital markets.
