Repon for the Hearing in Case C-271/92
I — The relevant national provisions
1. Under Article 505 of the Code de la Santé Publique (Public Health Code, hereinafter the Code) no one may act as a retail optician and supplier of spectacles unless he holds the certificate of optician and supplier of spectacles, the diploma of certified pupil of the national professional schools, opticians and spectacle supply section, the certificate of the optical trades school or any other qualification designated by order of the Minister for National Education, the Minister for Trade, the Minister for Public Health and Population and the Minister for Finance and Economic Affairs.
2. Under Article 508 of that Code, commercial establishments whose main business is optical supplies and the supply of spectacles, their branches, and shop departments supplying optical appliances and spectacles may be run or managed only by a person fulfilling the conditions laid down for the exercise of the profession of optician and supplier of spectacles. The peddling of glasses to correct ametropia is prohibited. No corrective lens may be supplied to a person of less than 16 years of age without a medical prescription.
3. An infringement of these provisions renders the person liable to the criminal penalties provided for in Article 509 of that Code.
4. Under Article 512(1) of the Code, wholesale or retail sales of products for the maintenance of contact lenses or the supply of such products to the public are reserved to pharmacists. However, Article 521 of that Code provides that, as an exception to the pharmacists' monopoly, such products may also be sold to the public by opticians and suppliers of spectacles.
II — Facts and procedure
1. The Laboratoire de Prothèses Oculaires (Laboratory for Eye Prostheses, hereinafter LPO) markets contact lenses, intraocular implants and related products, on prescription by ophthalmologists, through its agents or distributors associated with it under lixence; the products are supplied to the persons concerned under seal, without employing the services of an optician, and must then be fitted by an ophthalmologist.
2. Considering itself to be the victim of machinations by a number of professional associations of opticians supplying spectacles, who sought to have it banned by the courts from selling those products on the basis of Articles 505 and 508 of the Code, LPO brought an action against the Syndicat des Opticiens Français Indépendants (SOFI) (Union of French Independent Opticians), the Groupement d'Opticiens-Lunetiers Détaillants (GOLD) (Association of Retail Opticians supplying Spectacles), the Union Nationale des Syndicats d'Opticiens de France (UNSOF) (National Federation of Opticians' Trade Unions in France) and the Syndicat National des Adaptateurs d'Optique de Contact (SNADOC) (National Union of Contact Lens Opticians) for a ruling that Articles 505 and 508 of the Code do not give qualified opticians supplying spectacles a monopoly on the distribution of contact lenses and that the various actions brought against it by those professional organizations constituted restrictive and discriminatory practices.
3. The Cour d'Appel de Paris (Paris Court of Appeal), in a decision of 15 April 1991, dismissed LPO's claim, upheld the professional organizations' counterclaim and enjoined LPO, subject to a penalty for infringement, from selling contact lenses to individuals at sales outlets which it controlled and which were run by persons who did not hold an optician's certificate (Diplôme de lunetier-opticien).
4. LPO applied for a review of that decision. It pointed out that all national rules which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures incompatible with Article 30 of the Treaty even if they affect the sale of domestic products as well as imported products. LPO also argued that in the absence of Community rules on marketing a product, whatever its classification under domestic law, it is for the national courts to verify whether the marketing monopoly conferred on the holders of a particular qualification is necessary for the protection of public health or consumers and whether those two objectives cannot be achieved by less restrictive measures.
5. By judgment of 2 June 1992, the Cour de Cassation (Court of Cassation) decided to stay the proceedings until the Court had given a preliminary ruling on the following questions:
6. The order for reference dated 2 June 1992 was received at the Court Registry on 16 June 1992.
7. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice, written observations were submitted by LPO, represented by Defrenois and Levis, Advocates with the right of audience before the Conseil d'Etat and the Cour de Cassation; by the Syndicat des Opticiens Français Indépendants (SOFI) and the Groupement d'Opticiens Lunetiers-Détaillants (GOLD), represented by Lyon-Caen, Fabiani and Thiriez, Advocates with the right of audience before the Conseil d'Etat and the Cour de Cassation, and Mr Brueder (of Lafarge), Advocate with the right of audience before the Cour d'Appel de Paris; by the Union Nationale des Syndicats d'Opticiens de France (UNSOF) and the Syndicat National des Adaptateurs d'Optique de Contact (SNADOC), represented by Lemaître-Monod, Advocates with the right of audience before the Conseil d'Etat and the Cour de Cassation; by the French Government, represented by P. Pouzoulet and H. Duchene, of the Ministry of Foreign Affairs, acting as Agents; by the Greek Government, represented by F. P. Georgakopoulos, Assistant Legal Adviser in the State Legal Service, acting as Agent; and by the Commission of the European Communities, represented by R. Pellicer of its Legal Service and V. Melgar, a national civil servant seconded to the Legal Service of the Commission under the scheme for exchanges with national civil servants, acting as Agents.
8. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the case to the Sixth Chamber.
III — Observations submitted to the Court
1. The plaintiff in the main proceedings, LPO, claims that in the present state of Community law, in which the rules on marketing medical devices have not been harmonized, the question whether such rules comply with Community law must be considered in the light of Articles 30 and 36 of the Treaty.
2. On the first question, the defendants in the main proceedings, SOFI and GOLD, contend that the Community provisions are not applicable in the present case. The Court has consistently held that, in the absence of any factor that is not purely national, Community law does not apply to a domestic situation. In the present case, LPO is a small business which neither produces nor imports contact lenses.
3. The defendants in the main proceedings, UNSOF and SNADOC, contend that in the absence of Community rules on the marketing of a product, it is for the Member States to regulate all aspects of the distribution of the product in question, provided that such legislation does not obstruct intra-Community trade.
4. The French Government notes, first, that there is no harmonization of the rules on marketing optical appliances within the Community. It therefore falls to the Member States to determine such rules, subject to compliance with the provisions of the Treaty.
5. The Greek Government notes that the national rules at issue concern the conditions laid down for practising as an optician. They define the qualifications required of members of that profession to ensure that it is practised in an equitable manner, that is to say without imposing any restriction on the products distributed or discriminating between them so as to give domestic products an advantage over products of Community origin.
6. The Commission considers that in the present case no distinction can be drawn between contact lenses and related products; although they are different products, they are intrinsically too closely linked in marketing terms to be subject to different legal provisions. Fitting contact lenses necessarily entails instruction in the use of the related products for cleaning them.
1 Language of the case: French.