CJEC, 6th chamber, May 25, 1993, No C-271/92

THE COURT (Sixth Chamber),

1 By judgment of 2 June 1992, received at the Court on 16 June, the Cour de Cassation (Court of Cassation) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 30 and 36 of the Treaty in relation to the French Code de la Santé Publique (Public Health Code, hereinafter "the Code") which prohibits the sale of corrective lenses by persons who do not hold an optician' s certificate or similar qualification.

2 Those questions were raised in proceedings between LPO, which markets contact lenses, intra-ocular implants and related products, and a number of professional organizations of opticians supplying spectacles, which consider that LPO is in breach of the Code' s provisions on the sale of such products.

3 The Cour de Cassation, before which the case was brought on appeal, decided to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

"1. Must Article 30 of the Treaty be interpreted as applying to the sale of contact lenses and related products subject to conditions such as those laid down in Articles L-505 and L-508 of the Code de la Santé Publique reserving solely to holders of an optician' s certificate (Diplôme d' opticien-lunetier) the sale of optical appliances and corrective lenses?

2. May such legislation be justified by mandatory requirements relating to the protection of consumers or human health and life, as referred to in Article 36 of the Treaty?"

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first question

5 It should be noted first of all that Community law contains no common or harmonized rules on the distribution of contact lenses. Consequently, the task of determining the relevant rules is a matter for the Member States, subject to compliance with the provisions of the Treaty, in particular those on the free movement of goods.

6 It is clear from the documents in the case and from the written and oral observations submitted to the Court that the French legislation at issue in the main proceedings applies without distinction to domestic and imported products and has no direct effect on imports.

7 However, as that legislation prohibits certain forms of marketing, it must be borne in mind that the Court has held that national legislation which grants to members of a specific profession the exclusive right to distribute certain products is capable, in so far as it restricts sales to certain channels, of affecting the possibilities of marketing imported products and may accordingly constitute a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty (Case C-369-88 Delattre [1991] ECR I-1487, paragraph 51, and Case C-60-89 Monteil [1991] ECR I-1547, paragraph 38).

8 It follows that legislation of the kind at issue in the main proceedings, which reserves to specialized agents the sale of contact lenses and related products, is capable of affecting intra-Community trade.

9 The answer to the first question must therefore be that Article 30 of the Treaty is to be interpreted as precluding national legislation which reserves the sale of optical appliances and corrective lenses solely to holders of an optician's certificate.

The second question

10 As to whether such legislation may be justified on the basis of Article 36 of the Treaty, on grounds of the protection of public health, it follows from the Court' s case-law (judgment in Joined Cases C-1-90 and C-176-90 Aragonesa [1991] ECR I-4154, paragraph 16) that in the absence of common or harmonized rules it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, comply with the principle of proportionality.

11 National legislation which reserves the sale of products designed to correct a defect in a human bodily function to traders holding the relevant professional qualifications is intended to protect public health. The sale of contact lenses, even if ophthalmologists are responsible for prescribing them, cannot be regarded as a commercial activity like any other, since the vendor must be able to provide users with information on the use and care of the lenses.

12 Furthermore, legislation of the kind at issue in the main proceedings does not contravene the principle of proportionality. The reservation to opticians of the sale of contact lenses and related products is appropriate for the purpose of ensuring the protection of public health. There is no evidence in the file to suggest that such legislation goes beyond what is necessary to achieve that objective.

13 The answer to the second question must therefore be that Article 36 of the Treaty is to be interpreted as meaning that national legislation which prohibits the sale of contact lenses and related products in commercial establishments which are not run or managed by persons who fulfil the conditions laid down for practising as opticians is justified on grounds of the protection of public health.

Costs

14 The costs incurred by the French Government, the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Cour de Cassation by judgment of 2 June 1992, hereby rules:

1. Article 30 of the Treaty is to be interpreted as precluding national legislation which reserves the sale of optical appliances and corrective lenses solely to holders of an optician' s certificate.