Prohibition of advertising of oral and dental care services is contrary to the EU law
In a recent judgment (C-339/15), the Court of Justice of the European Union found that Belgian legislation prohibiting in strict and absolute terms any advertising with regard to the provision of oral- and dental-care services is incompatible with EU law.
The case concerned a Belgian general dental practitioner who had been accused of having, from 2003 to 2014, advertised the dental services he provided in a way that contravened national rules prohibiting all advertising for oral and dental care services. The advertising consisted of three printed faces, each 47 centimetres high and 75 centimetres wide, on which appeared the practitioner’s name, his designation as a dentist, and the website and telephone numbers of the dental practice. The website was created to inform patients about the types of treatments provided at the practice. The dentists had also placed advertisements in local newspapers.
Criminal proceedings followed a complaint by the Flemish professional association, Verbond der Vlaamsetandartsen. Belgian legislation prohibits any form of advertising of oral- and dental-care services, and requires dentists to exercise discretion when placing signage aimed at the public.
The defendant argued that the Belgian legislation in question is contrary to EU law—specifically, Directive 2000/31 on electronic commerce and the freedom to provide services laid down in Article 56 of the Treaty on the Functioning of the European Union.1 The Court of First Instance, Criminal Section, Brussels (Rechtbank van eerste aanleg te Brussel) decided to refer the case to the Court of Justice for a preliminary ruling.
On 4 May 2017, the Court rendered its judgment, in which it found that Directive 2000/31 on electronic commerce precludes national legislation, such as that in the instant case, from prohibiting in a general and absolute manner any form of electronic commercial communication, including a website set up by a dentist. According to the Court, although the form and content of the communication tools may be subject to some restrictions in order to protect public health and the dignity of the dental profession, the Belgian legislation goes beyond what is necessary to meet those objectives.
The Court therefore found that the freedom to provide services precludes national legislation from imposing a general and absolute prohibition on any advertising related to the provision of oral- and dental-care services. It also found that the Belgian legislation in question constitutes a restriction on the freedom to provide services by preventing service providers from making themselves known to their potential clientele and from promoting their services.
However, the Court did note that the importance of the relationship of trust between a dentist and a patient as well as the protection of the dignity of the dental profession may be overriding reasons to justify a restriction on the freedom to provide services. It found that, in cases where extensive use of advertising and aggressive promotional messages could mislead patients and thus damage the image of the profession or promote inappropriate or unnecessary treatments, the protection of health and the dignity of the profession could be undermined.
Not following the Opinion of the Advocate General
It is worth remarking here that the Court did not follow the Opinion of the Advocate General, who had argued that Directive 2000/31 on electronic commerce does not preclude that rule, since it is intended to ensure compliance with the rules of a regulated profession and applies to a service provider established on the national territory.The Advocate General had also concluded that the Belgian law prohibiting any advertising of dental-care services does constitute a restriction on the freedom to provide services, but had held that this restriction was justified on the grounds of the protection of public health. He had used the same reasoning in his Opinion in the Doulamis case (C-446/05, EU:C:2007:701).
YvesVan CouterAttorney at law Partner
Yves Van Couter is a Loyens & Loeff partner based in Brussels. He is a member of the Litigation & Risk Management Practice Group, heads the firm-wide Food & Beverages Team and co-heads the Data Protection & Privacy Team.T: +32 2 773 23 69 E: email@example.com