Professional Documents
Culture Documents
Prohibitions on the sale of certain goods via
internet might hinder the free movement of
goods
Problems of jurisdiction
C-243/01, Gambelli
•
A widespread and complex organisation of
Italian agencies linked by internet to the famous
English bookmaker Stanely International were
prosecuted according to the local law for
clandestine betting
•
In Italy this activity is reserved to the State or its
licensees
•
The Italian government maintained that an
individual who is connected from his home by
internet to a bookmaker established in another
C-243/01, Gambelli
•
The Court found that the Italian provisions
constitute a restriction on the freedom of
establishment, the freedom to provide
services and the freedom to receive or benefit
from services offered by a supplier.
C-243/01, Gambelli
•
The Court states that such restrictions may be
justified if they are necessary for consumer
protection and for the preservation of the
social order, taking account of moral, religious
and cultural factors and of the moral and
financial consequences for individuals and
society
•
The main aim of such restrictions must reflect an
overriding reason of general interest, such as
reducing gaming opportunities
C-243/01, Gambelli
•
However in the present case the restrictions
could not be justified because the Italian state
was pursuing a policy of substantial expansion of
betting and gaming at national level to procure
funds, while protecting licensees of the State
•
Other case: (C42/07, Santa Casa, portuguese
regulation, C258/08, Ladbrokes case, dutch
monopoly): no obligation to recognise
permissions issued in another Member State,
internet gambling may be lawfully prohibited
C-322/01, Doc Morris
•
A pharmacy based in the Netherlands offered
„internet pharmacy” services
•
The consumer was confronted with a list of
drugs. Whether prescription was needed in the
home state of the consumer, it was indicated at
the relevant item. In the case of prescription
medicines, the client had the present the
prescription
•
The drugs were delivered by courrier
C-322/01, Doc Morris
•
According to the German legislation pharmacy
only products could not be bought via
correspondence (import ban)
•
The German Association of Pharmacists objected
to the offering of services of online pharmacies
in Germany and brought the case to the Regional
Court of Frankfurt
•
Preliminary question: are the German rules
infringing the principle of free movement of
goods?
C-322/01, Doc Morris
•
Are such restrictions measures having equivalent
effect to quantitative restrictions (MEQR)?
•
If they were „selling arrangements” within the
meaning of Keck they would not be MEQR.
•
Reminder: selling arrangements are provisions
on how, where and when a product can be sold.
If they are not discriminative they are not MEQR
C-322/01, Doc Morris
•
Dual burden rules (rules on the shape, size,
composition of a product) are MEQRs unless they
might be justified by overrriding rules (Article 36
of TFEU or mandatory requirements)
•
Selling arrangments (rules on how, when and
where a product can be sold) are not MEQR
unless they are discriminatory in law or in fact
•
Even that case they may be justified by the
C-322/01, Doc Morris
•
The Court: A national prohibition on the sale by
mail order of medicinal products the sale of
which is restricted to pharmacies in the Member
State concerned is in that regard a measure
having an effect equivalent to a quantitative
restriction where the prohibition has a greater
impact on pharmacies established outside the
national territory and could impede access to the
market for products from other Member States
more than it impedes access for domestic
C-322/01, Doc Morris
•
Consequence: Prohibitions or restrictions on the
sale via internet can never be considered as
selling arrengements because they have a greater
impact on those who are nor established in the
Member State concerned
•
Such restrictions constitute a MEQR
•
Could they be justified by the effective protection
C-322/01, Doc Morris
Jusitification in the case of prescription medicines
the Court takes the view that allowing such
medicines to be supplied on receipt of a
prescription and without any other control could
increase the risk of prescriptions being abused or
incorrectly used. Furthermore, the fact that the
labelling of a medicinal product may be in a
different language can have more harmful
consequences in the case of prescription medicines.
C-322/01, Doc Morris
Justification in the case of nonprescription
medicines
In the case of nonprescription medicines, the
prohibition is not justified, since it is possible that
adequate advice and information may be provided.
Internet buying may even have certain advantages,
such as giving consumers time to think about any
questions they may wish to ask the pharmacist from
home
C-108/09, Ker-Optika
•
Contact lenses could only be sold in Hungary in
optical shops and could not be sold by internet
•
KerOptika was selling contact lenses through its
website until the Hungarian public authorities
placed an online sales ban. The firm chellanged
the Hungarian rule
C-108/09, Ker-Optika
•
The Court followed its reasoning in Doc Morris
•
A ban on the selling via internet is not a selling
arrangement, but constitute an MEQR
•
Such ban however not be justified by the
protection of public health, because this
protection could be achieved by less restrictive
means than a ban (adequate information to the
consumer, requiring the personal presence only
C-585/08, Pammer and C-144/09,
Heller (joined cases)
•
The Brussels I regulation on jurisdiction in civil
and commercial matters provides that actions
against a person domiciled in a Member State
must, as a general rule, be brought in the courts
of that State. It also provides that cases resulting
from a contractual relationship may be decided
by the courts for the place of performance of the
contractual obligation.
•
In the case of consumer contracts, however,
rules protecting the consumer apply. If the trader
C-585/08, Pammer and C-144/09,
Heller (joined cases)
•
Peter Pammer, who resides in Austria, wished to
travel by freighter from Trieste (Italy) to the Far
East. He therefore booked a voyage with the
German company, through a German travel
agency specialising in the sale on the internet of
voyages by freighter.
•
Mr Pammer refused to embark on the ground
that the conditions on the vessel did not, in his
view, correspond to the description which he had
received from the agency and he sought
C-585/08, Pammer and C-144/09,
Heller (joined cases)
•
Oliver Heller, a German resident, reserved a
number of rooms, for a period of a week, in
Hotel Alpenhof, which is in Austria. The
reservation was made by email, the hotel’s
website which Mr Heller had consulted
indicating an address for that purpose. Mr Heller
found fault with the hotel’s services and left
without paying his bill. The hotel then brought
an action before the Austrian courts for payment
of the bill. Mr Heller raised a plea of lack of
C-585/08, Pammer and C-144/09,
Heller (joined cases)
•
The Oberster Gerichtshof (Supreme Court,
Austria), before which these two cases are
pending, has asked the Court of Justice whether
the fact that a company established in a Member
State offers its services on the internet means
that they ‘are directed’ to other Member
States too. If that were so, consumers domiciled
in those other States who have recourse to the
services could also benefit, in the event of a
dispute with the trader, from the more
C-585/08, Pammer and C-144/09,
Heller (joined cases)
•
The Court states that mere use of a website by
a trader in order to engage in trade does not
in itself mean that its activity is ‘directed to’
other Member States, which would trigger
application of the protective rules of jurisdiction
in the regulation.
•
The Court holds that, in order for those rules to
be applicable in relation to consumers from other
Member States, the trader must have
manifested its intention to establish
C-161/10, Martinez
•
The Sunday Mirror published an article in
February 2008 it which it announced that Kylie
Minogue and Olivier Martinez form a couple
again
•
Martinez had sued the website editor in France
being his place of residence and claimed
damages for the infringement of his private life
C-161/10, Martinez
•
The Advocate General was of the opinion that
the internet has put an end to the territorial
fragmentation of the information media, and has
facilitated the circulation of information on a
worldwide scale instead of a national scale.
•
Therefore, a possible infringement on personal
rights on a website might have global and far
reaching consequences.
C-161/10, Martinez
•
The French court asked how the Brussels I
Regulation on jurisdiction and the recognition
and enforcement of judgments in civil and
commercial matters should be interpreted in
terms of jurisdiction to hear an action in tort
brought for infringement of personal rights by
placing information or photographs online in a
Member State
C-161/10, Martinez
•
The material is accessible in that Member State
but was published online in another. The editor
of the arcticle was established in an EU Member
State other than the EU Member State where the
victim was domiciled
•
It asks whether the simple accessibility of the
website from that first Member State is sufficient
or whether other criteria should be used to
demonstrate a sufficient, substantial or
significant link between the harmful event and
C-161/10, Martinez
•
the Advocate General introduces a new,
additional criterion to determine the competence
of a national court for an infringement on
personal rights committed via the internet, i.e.,
“the centre of gravity of the conflict”. According
to the Advocate General, the Member State
where the “centre of gravity of the conflict” is
located will be the Member State where the
courts are best placed to rule on a conflict
between the freedom of information and the
C-161/10, Martinez
•
The Advocate General provides the following
indications on how to determine in which
Member State the “centre of gravity of the
conflict” is located:
• the Member State where the individual whose
personal rights have allegedly been violated, has
the centre of his interests; or
• the Member State where the infringing
information at stake is objectively and particularly
relevant.
C-161/10, Martinez
•
ECJ: in the event of an alleged infringement of
personality rights by means of content placed
online on an internet website, the person who
considers that his rights have been infringed has
the option of bringing an action for liability, in
respect of all the damage caused, either before
the courts of the Member State in which the
publisher of that content is established or
before the courts of the Member State in
which the centre of his interests is based. That