23/05/2017

Healthcare Newsflash: A general and absolute prohibition of any advertising relating to the provision of oral and dental care services is contrary to the EU law

In a recently delivered judgment in Case C-339/15, the Court of Justice of the European Union found that the Belgian legislation prohibiting in strict and absolute terms any advertising with regard to the provision of oral and dental care services is incompatible with the EU law.

The case concerned a Belgian general dental practitioner accused of having, during the period from 2003 to 2014, advertised the dental services he provided in a way contravening the national rules prohibiting all advertising for the provision of oral and dental care services. The advertising consisted of a three printed-face sign affixed at the entrance of the dental practice, stating the dentist’s name, his designation as a dentist, the website and the phone number of his practice. The website was created to inform the patients about the types of treatments provided at the practice; some advertisements about the practice were also placed in local newspapers.

Criminal proceedings followed after a complaint had been filed by the Flemish professional association, Verbond der Vlaamsetandartsen. Belgian legislation prohibits any form of advertising of oral and dental care services and sets out requirements of discretion to be exercised when placing signs of dental practices aimed at the public.

The defendant argued that the Belgian rules in question are contrary to the EU law and specifically the Directive 2000/31 on electronic commerce and the freedom to provide services laid down in Article 56 of the TFEU. The Court of First Instance, Criminal Section in Brussels (Rechtbank van eerste aanleg te Brussel) decided to refer the case to the Court of Justice for a preliminary ruling.

On 4 May, the Court rendered its judgment in which it considers that the Directive 2000/31 on electronic commerce precludes national legislation, like the Belgian one in question, prohibiting in a general and absolute manner any form of electronic commercial communication, including by using a website set up by a dentist. According to the Court, although the form and content of the communication tools can be subject to some restrictive measures in order to protect public health and the dignity of the dental profession, the Belgian legislation exceeds  what is necessary to attain the objectives pursued by it.

The Court therefore found that the freedom to provide services precludes national legislation imposing a general and absolute prohibition of any advertising relating to the provision of oral and dental care services. The Court considered that the Belgian legislation in question constitutes a restriction on the freedom to provide services by preventing the services providers from making themselves known to their potential clientele and promoting the services that they offer.

However, the Court noted 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. In circumstances such as extensive use of advertising, aggressive promotional messages misleading the patients, damaging the image of the profession or promoting inappropriate or unnecessary treatments, the protection of health and the dignity of the profession may be undermined.

It is interesting to note that the Court did not follow the Opinion of the Advocate General who considered that the Directive 2000/31 on electronic commerce does not preclude national legislation i.e. Belgian law on where that legislation aims to ensure compliance with the rules of the profession and applies to a service provider established on the national territory. The Advocate General also concluded that the Belgian law prohibiting any advertising of dental care services does constitute a restriction on the freedom to provide services but this restriction is justified on the ground of the protection of public health. The same reasoning was set out in the Opinion in Doulamis case (C-446/05, EU:C:2007:701).

Questions?

For more information, please contact:

Evelina Roegiers

Aleksandra Sanak

Yves Van Couter