By order of 26 October 2017, the Court of Justice of the European Union (the “ECJ”) ruled that the Belgian prohibition on advertising for procedures relating to plastic surgery or non-surgical plastic medicine is compatible with Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the “Directive”) (ECJ, 26 October 2017, Case C-356/16, Wamo BVBA and Luc Cecile Jozef Van Mol).
The ECJ delivered its order in response to a request for a preliminary ruling from the Dutch-language Brussels Court of First Instance (Nederlandstalige Rechtbank van Eerste Aanleg te Brussel/Tribunal de Première Instance néerlandophone de Bruxelles – the “Court”). The Court had addressed the ECJ in criminal proceedings brought against Wamo BVBA, an operator of clothing stores under the commercial name ZEB (“ZEB”), and its managing director. ZEB was accused of having disseminated advertising for procedures relating to plastic surgery to its customers (both online and in paper format) in breach of Article 20/1 of the Law of 23 May 2013 regulating the qualifications required to perform procedures relating to non-surgical plastic medicine and plastic surgery and regulating the advertising and information relating to such procedures (Wet van 23 mei 2013 tot regeling van de vereiste kwalificaties om ingrepen van niet heelkundige esthetische geneeskunde en esthetische heelkunde uit te voeren en tot regeling van de reclame en informatie betreffende die ingrepen/Loi du 23 mai 2013 réglementant les qualifications requises pour poser des actes de médecine esthétique non chirurgicale et de chirurgie esthétique et réglementant la publicité et l'information relative à ces actes - the “Law”). Article 20/1 of the Law provides for a general prohibition on disseminating advertising for procedures relating to plastic surgery or non-surgical plastic medicine.
The Court had requested the ECJ to assess whether Article 20/1 of the Law, which seeks to protect public health and the dignity and integrity of the professions of plastic surgeon and plastic doctor, is compatible with the Directive.
Reiterating the terms of its Vanderborght judgment of 4 May 2017, in which the ECJ had ruled that the Belgian prohibition on advertising for dental care is compatible with the Directive (see VBB on Belgian Business Law, Volume 2017, No. 5, p. 3, available at www.vbb.com), the ECJ answered in the affirmative. It started its analysis by repeating that the term “commercial practice”, as defined in Directive 2005/29/EC, has a very broad scope and that the advertising of procedures relating to plastic surgery qualifies as a “commercial practice”. However, it continued that, pursuant to Articles 3(3) and (8) of the Directive, this Directive is without prejudice to: (i) EU or national rules relating to the health and safety aspects of products and services; and (ii) the ethical codes of conduct or other specific rules governing regulated professions. Noting that the Belgian general prohibition on disseminating advertising for procedures relating to plastic surgery or non-surgical plastic medicine seeks to protect public health and the dignity and integrity of the professions of plastic surgeon and plastic doctor, the ECJ concluded that the prohibition is compatible with the Directive.
It is important to note that, contrary to what was the case in the Vanderborght case and somewhat surprisingly, the ECJ was not asked to examine whether the prohibition is compatible with: (i) Directive 2000/31/EC of 8 June 2000 on specific legal aspects of information society services, in particular electronic commerce in the Internal Market; and (ii) the freedom to provide services. In view of the Vanderborght judgment, it is questionable whether the prohibition at issue here is compatible with these sets of rules (see VBB on Belgian Business Law, Volume 2017, No. 5, p. 3, available at www.vbb.com).
By Koen T’Syen, Counsel, ktsyen@vbb.com and Charlotte Woolfson, Associate, cwoolfson@vbb.com
