On 4 May 2017, the Court of Justice of the EU answered several prejudicial questions submitted by the Belgian tribunal of first instance regarding the advertising of the services of dentists. In this judgment, the Court held that the Belgian legislation imposing a general and absolute prohibition of any advertising relating to the provision of oral and dental care services and establishing certain requirements of discretion with regard to signs advertising dental practices infringes EU law and, more specifically, the Directive on electronic commerce and the freedom to provide services.
These prejudicial questions were submitted in the case against Luc Vanderborght, a dental practitioner in Belgium. Vanderborght installed a sign consisting of three printed faces, stating his name, his designation as a dentist, his website address and his practice’s telephone number. In addition, he set up a website to inform patients of the various types of treatment provided at his practice. Finally, he also placed advertisements in local newspapers. Following a complaint from the Verbond der Vlaamse Tandartsen VZW, a professional association, criminal proceedings were brought against him before the Nederlandstalige rechtbank van eerste aanleg te Brussel, strafzaken (Dutch-language Court of First Instance, Criminal Section, Brussels, Belgium). The Prosecutor considered that he advertised his dental services in violation of Belgian law. In particular, the Law of 15 April 1958 on advertising in relation to dental care prohibits, in absolute terms, any advertising relating to oral and dental care, and the Royal Decree of 1 June 1934 (which rules on the practice of dentistry) establishes certain requirements of discretion with regard to signs advertising dental practices.
Vanderborght argued that this legislation is contrary to EU law, more specifically the Unfair Commercial Practices Directive[1] and the Directive on electronic commerce[2] as well as the freedom to provide services laid down in Article 56 of the Treaty on the Functioning of the European Union (“TFEU”).
In the 2008 Doulamis case[3], the Court had already ruled on the compatibility of certain provisions of the same legislation by reference to competition law prohibiting agreements and concerted practices between undertakings that affect competition and trade between Member States. In that case, Doulamis had placed advertisements in a national paper directory. The Court had stated that the Belgian legislation in question did not infringe competition law as the latter only applies to the conduct of undertakings and not to laws or regulations, unless Member States create a framework allowing undertakings to infringe competition law, which was not the case at stake.
Thus, the Court again had the chance to assess the conformity of the Belgian legislation with EU law.
In its judgment of 4 May 2017, the Court held that the Unfair Commercial Practices Directive ought to be interpreted as not precluding national legislation which, such as the Belgian legislation in the case at stake, protects public health and the dignity of the profession of dentist.
However, as far as the Directive on electronic commerce is concerned, the Court stated that the Belgian legislation, which imposes a general and absolute prohibition of any advertising relating to the provision of oral and dental care services, violates the Directive since it prohibits any form of electronic commercial communications, including by means of a website created by a dentist. The Court found that the professional rules referred to in the Belgian law cannot legitimately impose a general and absolute prohibition of any form of online advertising designed to promote the activity of a person practising such a profession.
Finally, regarding the freedom to provide services as established in the TFEU, the Court confirmed that it remains, in principle, for the Member States to determine the level of protection which they wish to give to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a measure of discretion. However, the Court considered that the Belgian legislation exceeds what is necessary for meeting the objectives of that legislation. These objectives could be met using less restrictive measures supervising the form and manner which the communication tools used by dentists may legitimately have, without imposing on them a general and absolute prohibition of any form of advertising. The Court thus concluded that the Belgian legislation violates the freedom of providing services laid down in Article 56 of the TFEU. It should be emphasized that to apply Article 56 of the TFEU to the matter in question, the Court noted that the dentist concerned provided services to patients from other European countries and that therefore the situation was not confined in all respects to a single Member State.
By this judgment, the Court did not follow the opinion of Advocate General Bot of 8 September 2016. The Advocate General concluded that the Belgian legislation did not violate the Directive on electronic commerce since the Belgian rule aims to ensure compliance with the rules of the profession and applies to a service provider established in the national territory.
Furthermore, Bot considered that the Belgian legislation does indeed constitute a restriction on the freedom of establishment and the freedom to provide services, but that this restriction is justified on the ground of the protection of public health, since the law does not prohibit service providers from giving, in a telephone directory or other source of publicly accessible information, basic details, free of enticements or incentives, making known their existence as professionals, such as their name, their permitted activities, their place of work, their hours of business and their contact details.
The opinion does not bind the Court, but the Court regularly follows the opinion in its judgment. In this case, however, the Court did not. Contrary to the opinion of the Advocate General, the Court interpreted more strictly the protection of public health as an exception to the freedom to provide services. This exception is necessary and fundamental, but only those national measurements that are proportional can be valid under European law. The Court thus stressed once again the importance of the fundamental freedoms in the European Union, which we can only encourage. It seems that the Belgian legislator will have to adjust its very strict legislation on advertising in conformity with EU law.
[1] Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council.
[2] Directive 2001/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market.
[3] ECJ, C‑446/05, 13 March 2008, EU:C:2008:157.
Bruno Fonteyn
Senior Associate, Brussels
bruno.fonteyn@cms-db.com
Annabelle Lepièce
Partner, Brussels
annabelle.lepiece@cms-db.com
Delphine Phan
Junior Associate, Brussels
delphine.phan@cms-db.com
