An absolute ban on advertising for dentists deemed invalid

Court of Justice of the European Union, C-339/15, Luc Vanderborght, 4 May 2017

This article by Bart Van Besien was published in Leading Internet Case Law, July-August 2017, pages 18-19.

Restrictions on advertising for dentists and other liberal professions

In its judgment of 4 May 2017, the Court of Justice of the European Union (‘CJEU’) verified whether a general ban on advertising for Belgian dentists is in line with European Union law. In its judgment, the CJEU rejected an absolute ban but did not object to national or deontological rules that impose restrictions on advertising. The judgment is important for many liberal professions, including doctors, lawyers, architects, notaries, etc.

Factual background: advertisements for dental services


 

Vanderborght worked as a dentist in Belgium. He advertised his services contrary to Belgian law, which contained a general ban on advertising for dental services.[1] In particular, Vanderborght installed a sign mentioning his name, his designation as a dentist, the address of his website and his telephone number. He also created a website to inform patients of the various types of treatment he provides, and placed advertisements in local newspapers. Following a complaint from the ‘Verbond der Vlaamse Tandartsen,’ a professional dentists’ association, criminal proceedings were brought against Vanderborght.

Preliminary ruling

 

The referring Court[2] decided to refer five questions to the CJEU for a preliminary ruling:

 

A general ban on advertising for dental care services is not contrary to Directive 2005/29 on Unfair Commercial Practices.

 

With its first three questions, the referring Court asked whether Directive 2005/29 (the ‘Unfair Commercial Practices Directive’) precludes national legislation protecting public health and the dignity of the profession of dentistry by imposing a general prohibition 
on advertising for oral and dental
care services (and by establishing certain requirements of discretion with regard to signs of dental practices).

The CJEU first confirmed that the advertisements at issue constitute ‘commercial practices’ within the meaning of Article 2(d) of Directive 2005/29. The CJEU then referred to the exceptions of Articles 3(3) and 3(8) of Directive 2005/29:

  • “This Directive is without prejudice to Community or national rules relating to the health and safety aspects of products.” (Article 3(3))
  • “This Directive is without prejudice to any conditions of establishment or of authorisation regimes, or to 
the deontological codes of conduct or other specific rules governing regulated professions in order to uphold high standards of integrity on the part of the professional, which Member States may, in conformity with Community law, impose on professionals.” (Article 3(8))

The CJEU noted that the national legislation at issue apparently protects public health and the dignity of 
the profession of dentistry, so that legislation comes under Article 3(3) and (8) of Directive 2005/29.

Therefore, the CJEU’s answer to the first three questions was that the general ban on advertising is not contrary to Directive 2005/29 on Unfair Commercial Practices.

 

A general ban on online advertising is contrary to Directive 2000/31 
on E-Commerce (but professional rules may impose less restrictive limitations on advertising).

 

With its fourth and fifth questions, the referring Court asked whether Directive 2000/31 (Directive on E-Commerce) precludes national legislation imposing a general prohibition on any advertising relating to oral and dental care services, inasmuch as it prohibits any form of electronic commercial communications, including by means of a website.

The CJEU first reiterated that, according to Article 8(1) of Directive 2000/31, Member States must ensure that ‘commercial communications’ that are part of an ‘information society service’ provided by a member of a ‘regulated profession’[3] are authorised. The CJEU stated that online advertising may constitute an ‘information society service’ for the purposes of Directive 2000/31.[4] Following Article 2(f) of Directive 2000/31, the concept of ‘commercial communication’ covers any form of communication designed to promote the services of a person practising a regulated profession. The CJEU also accepted that, in Belgium, the profession of dentistry constitutes a ‘regulated profession.’

Therefore, advertising relating to oral and dental care services through a website created by a member of a regulated profession should be considered a ‘commercial communication’ which is part of an ‘information society service’ or which constitutes such a service for the purposes of Article 8 of Directive 2000/31. Member States must in principle ensure that such commercial communications are authorised.
 That being the case, such commercial communication may be subject to compliance with the professional rules regarding the independence, dignity and honour of the profession, professional secrecy and fairness towards clients
 and other members of that profession.

However, such professional rules cannot impose a general and absolute prohibition on any form of online advertising designed to promote the activity of a person practising a regulated profession. In other words, the Court 
of Justice accepts that the content and form of commercial communications 
may be subject to professional rules,
 but warns that such rules cannot include a general and absolute prohibition of such commercial communications.

So put plainly, on the one hand, Article 8(1) of Directive 2000/31 allows taking into account the particularities of health professions in professional rules by supervising the form and manner of the online commercial communications, to ensure that the confidence that patients have in those professions is not undermined. On the other hand, those professional rules cannot impose a general and absolute prohibition of any form of online advertising.

The CJEU concluded that Directive 2000/31 precludes national legislation imposing a general and absolute prohibition of any advertising relating to the provision of oral and dental care services, inasmuch as it prohibits any form of electronic commercial communications, including by means of a website created by a dentist.

 

A general ban on advertising for dental care services is contrary to the freedom to provide services (Article 56 TFEU), but national law may impose less restrictive measures to protect public health or the dignity of the profession.

 

The sixth question related to the compatibility with Articles 49 and 56 TFEU (freedom of establishment and freedom to provide services respectively) of national legislation that imposes a general and absolute prohibition on advertising for oral and dental care services. The cross border element concerned the fact that a number of Vanderborght’s patients came from other EU Member States.

The CJEU examined the question in light of the ‘freedom to provide services’ and ruled that national legislation imposing 
a general prohibition of advertising restricts the freedom to provide services. A restriction of fundamental freedoms by national law may be allowed only if the restriction pursues an objective in the public interest, is appropriate for ensuring the attainment of that objective, and does not go beyond what is necessary to attain the objective pursued.[5]

In the case at hand, the referring Court indicated that the national legislation aims to protect public health and the dignity
of the profession of dentist. The CJEU accepted that the protection of public health and the protection of the dignity 
of the profession of dentist are indeed objectives that may justify a restriction 
on the freedom to provide services.

The CJEU noted in this regard: “The extensive use of advertising or the selection of aggressive promotional messages, even such as to mislead patients as to the care being offered, by damaging the image of the profession of dentistry, by distorting the relationship between dentists and their patients,
 and by promoting the provision of inappropriate and unnecessary care, may undermine the protection of health and compromise the dignity of the profession of dentistry[6].” The CJEU added: “In that context, a general and absolute prohibition of any advertising is appropriate for attaining the objectives pursued by avoiding any use, by dentists, of advertising and promotional messages[7].”

However, the CJEU also noted that, in the case at hand, the restriction resulting from the general and absolute prohibition on advertising for dental services imposed by national law exceeds what is necessary to attain 
the objectives pursued[8]. Indeed, all the advertising messages prohibited are not, in themselves, likely to produce effects that are contrary to the objectives of protecting public health and the dignity of the profession of dentistry.

The CJEU concluded: “In those circumstances, it must be held that the objectives pursued by the legislation 
at issue in the main proceedings could be attained through the use of less restrictive measures supervising, closely if necessary, 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.”[9] In other words, the answer to the sixth question was that Article 56 TFEU precludes national legislation that imposes a general and absolute prohibition on any advertising relating to the provision of oral and dental care services.

 

Conclusion

 

This judgment rules out a general and absolute prohibition on advertising, but leaves the door open for less restrictive limitations on advertising for regulated professions such as dentists, doctors, lawyers, etc.

A justification for limiting commercial communications by regulated professions may be found in ‘public health’ (relevant for professions), but also in the ‘dignity of the profession.’ 
In other words, national legislators and professional organisations such as bar associations or medical associations may actually find inspiration in this judgment to strengthen rules on commercial communication. In doing so, they should be careful not to go further than what is necessary to attain the objectives pursued, such as the protection of 
public health or the dignity of the profession. At least for the protection of public health, the CJEU acknowledges that Member States have a measure 
of discretion. The question is how far does this level of discretion go.

 

Author: Bart Van Besien

 

[1] Article 1 of the Belgian Act of 15 April 1958 on advertising in relation to dental care and Article 8d of the Belgian Royal Decree of 1 June 1934 laying down rules for the practice of dentistry.

[2] The Dutch-language Court of First Instance, Criminal Section, of Brussels.

[3] Or which constitutes such a service.

[4] See also judgment of 15 September 2016, McFadden, C-484/14, EU:C:2016:689, paragraphs 41 and 42.

[5] See judgment of 12 September 2013, Konstantinides, C-475/11, EU:C:2013:542, paragraph 50.

[6] Paragraph 69 of the judgment.

[7] Paragraph 70 of the judgment.

[8] Paragraph 72 of the judgment.

[9] Paragraph 75 of the judgment.