French Administrative Supreme Court paves way for medical practitioner advertising

On 6 November 2019, the French Council of State, the Administrative Supreme Court, granted the request to annul the implicit Minister of Health's refusal to revoke the Articles of the Public Health Code (French language) that prohibited the use of any advertising by dentists and dental surgeons (Decision of 6 November 2019 docket 420225) (French language). The request for annulment was based on a claim of the Minister's excessive use of power.

The court's decision reflects a recent ECJ ruling (C-339/15) which concluded, inter alia, that the Directive on Electronic Commerce (2000/31/EC) and Article 56 of the Treaty on the Functioning of the European Union "must be interpreted as precluding national legislation […] which imposes a general and absolute prohibition of any advertising relating to the provision of oral and dental care services". According to the ECJ, such "interpretation is supported by the fact that Article 8(2) of Directive 2000/31 provides that Member States and the Commission are to encourage the drawing-up of codes of conduct intended, not to prohibit that type of advertising, but rather to determine the types of information that can be given for the purposes of commercial communication in conformity with those professional rules".

As a result, the Administrative Supreme Court concluded that while it is for the regulatory authority to define the conditions under which the use by a dental surgeon (and a fortiori by any medical doctor) of advertisements would be compatible with the requirements of public health protection, the dignity of the profession concerned, the confraternity between practitioners and patient trust in practitioners, the aforementioned texts preclude regulatory provisions that seek to generally and absolutely prohibit all advertising.

The French Competition Authority published a decision (French language) identifying the non-compliance of the French provisions earlier this year.

This article was co-authored by Alexis Vaujany

A prior version of this post was originally published by the same authors in Practical Law – Life Sciences, December 2019 Issue (Thomson Reuters).