European Union: Court Of Justice Of European Union Outlaws Belgian Ban On Advertising For Dental Care

Last Updated: 19 June 2017
Article by Koen T’Syen

Most Read Contributor in Belgium, August 2018

On 4 May 2017, the Court of Justice of the European Union (the "ECJ") held that the Belgian general and absolute prohibition on advertising for dental care is incompatible with EU law (Case C-339/15, Openbaar Ministerie v. Luc Vanderborght).

The judgment was issued 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 questioned the ECJ in criminal proceedings brought against Luc Vanderborght, a general dental practitioner, who was accused of having advertised his dental services by means of "a large advertising pillar, of immodest size and appearance", in local newspapers and on his website.

The Public Prosecutor considered that Mr. Vanderborght had breached: (i) Article 8quinquies of the Royal Decree of 1 June 1934 regulating the practice of dentistry (Koninklijk Besluit van 1 juni 1934 houdende reglement op de beoefening der tandheelkunde/Arrêté royal du 1er juin 1934 réglementant l'exercice de l'art dentaire) which, in order to protect the dignity of the profession, outlines the requirements of the discretion to be exercised by providers of dental care when they place a plaque or an inscription at the entrance of the building in which they practise; and (ii) Article 1 of the Law of 15 April 1958 on advertising in relation to dental care (Wet van 15 april 1958 betreffende de publiciteit inzake tandverzorging/Loi du 15 avril 1958 relative à la publicité en matière de soins dentaires), which prohibits providers of dental care services, in the context of a profession or a dental practice, from advertising their services to the public, directly or indirectly, in any form whatsoever.

In his defence, Mr. Vanderborght maintained that these rules are contrary to: (i) Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices ("Directive 2005/29/EC"); (ii) Directive 2000/31/EC of 8 June 2000 on specific legal aspects of information society services, in particular electronic commerce in the Internal Market ("Directive 2000/31/EC"); and (iii) the principles of freedom of establishment and freedom to provide services as laid down in Articles 49 and 56 of the Treaty on the Functioning of the European Union ("TFEU"). In view of these arguments, the Court requested the ECJ to assess the compatibility of the Belgian measures within these three sets of EU rules.

Compatibility with Directive 2005/29/EC

The ECJ started its analysis by reiterating that the term "commercial practice", as defined in Directive 2005/29/EC, has a very broad scope and that advertising in relation to dental care qualifies as a "commercial practice". However, it continued that, pursuant to Articles 3(3) and (8) of Directive 2005/29/EC, this Directive is without prejudice to: (i) 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. In noting that the Belgian rules seek to protect public health and the dignity of the dentistry profession, the ECJ concluded, in line with the opinion of Advocate General Bot ("AG Bot") of 8 September 2016 (See, VBB on Belgian Business Law, Volume 2016, No. 9, p. 4, available at www.vbb.com), that the Belgian rules are compatible with Directive 2005/29/EC.

Compatibility with Directive 2000/31/EC

The ECJ considered that Directive 2000/31/EC applies because advertising over the internet for dental care services constitutes an information society service within the meaning of Article 2(a) of the Directive. The ECJ examined whether the rules at issue are compatible with the substantive rules of Directive 2000/31/EC, including Article 8(1). Pursuant to this provision, the use of commercial communications over the internet by a member of a regulated profession is permitted, this is so provided that the communication complies with the ethical rules of the profession. As Article 8(1) permits the members of a regulated profession to advertise their services by means of information society services, subject to compliance with the professional rules, the ECJ outlined that such professional rules cannot include a general and absolute prohibition of any type of online advertising aimed at promoting dental care. This ruling departs from the view of AG Bot, who maintained that the Belgian rules are compatible with Directive 2000/31/EC (See, VBB on Belgian Business Law, Volume 2016, No. 9, p. 4, available at www.vbb.com ).

Compatibility with freedom to provide services (Article 56 TFEU)

The ECJ considered that freedom of establishment is ancillary to the freedom to provide services. According to the ECJ, it is therefore sufficient to examine the compatibility of the national measures at issue with the freedom to provide services.

In the ECJ's view, the measures at issue constitute a restriction on the freedom to provide services. As a result, the ECJ examined whether this restriction can be justified on grounds of: (i) public health; and (ii) the dignity of the dentistry profession. The ECJ ruled contrary to AG Bot's reasoning. While the ECJ agreed that a general and absolute advertising ban is suitable for achieving the stated objectives of public interest, it held that these objectives could be achieved through less restrictive measures. In other words, Belgium is entitled to regulate how dentists can advertise their services, but it does not have the power to prohibit any advertising altogether.

The judgment is good news for Mr. Vanderborght, who will now quite likely avoid criminal sanctions.

This is not the first ruling of the ECJ on the Belgian ban on advertising of dental care. On 13 March 2008, the ECJ held that this prohibition is compatible with Article 101 TFEU (prohibition on cartels and other agreements that restrict competition) read in conjunction with Article 4(3) TFEU (duty of EU Member States to cooperate in good faith with the EU) (ECJ, 13 March 2008, Case C-446/05, Ioannis Doulamis).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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