Belgium's absolute advertising prohibition for oral and dental care services incompatible with EU law

On 4 May 2017, the EU Court of Justice (CJEU) ruled that a general and absolute prohibition of any advertising for the provision of oral and dental care services is incompatible with EU law (Case C-339-15). The Court found that Directive 2000/31 on electronic commerce as well as the freedom to provide services laid down in the Treaty on the Functioning of the European Union (TFEU) preclude national legislation, in particular the Belgian legislation at issue, imposing such a general and absolute advertising ban.

Belgium prohibits in absolute terms the advertising of oral and dental care. The Belgian Law on the advertising of dental care of 15 April 1958 bans any kind of direct or indirect advertising for dental and oral services, in Belgium or abroad, by means of inter alia, “displays or signs, inscriptions or plaques that may mislead as to the lawful nature of the activity advertised, through leaflets, circulars, hand-outs and brochures, via the media of the press, radio or cinema, by conferring or promising any kind of benefits such as discounts, free-of-charge transport for patients, or through canvassers or other such intermediaries.” Violations of this prohibition are sanctioned by fines, imprisonment, seizure and/or the prohibition to exercise the dental profession.

The CJEU’s decision follows a request for a preliminary ruling from the Brussels Court of First Instance in criminal proceedings brought by a Belgian dentists’ professional association Verbond der Vlaamse tandartsen (VVT) against Mr Vanderborght, a dentist established in Belgium. Between 2003 and 2004, Mr. Vanderborght advertised his dental care services, amongst others by installing a sign consisting of three printed faces, stating his name, his designation as a dentist, the address of his website and the telephone number of his practice. In addition, he created a website in order to inform patients of the various types of treatment which he provides at his practice. Finally, he also placed some advertisements in local newspapers.

Considering that online advertising falls within the scope of the broad Belgian advertising prohibition, the CJEU concluded that, although the content and form of commercial communications may legitimately be subject to professional rules, the Directive on electronic commerce precludes legislation which prohibits any form of electronic commercial communication aimed at promoting oral and dental care services.

In addition, an absolute advertising ban for oral and dental care services is equally precluded by the fundamental freedom to provide services. According to the CJEU, the Belgian legislation is liable to restrict the possibility for dentists of making themselves known to potential clients and of promoting the services they propose to offer to these clients. The prohibition therefore includes a restriction on the freedom to provide services. The objectives of the Belgian legislation in question – the protection and dignity of the profession of dentistry – are legitimate but should 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.

This decision is likely to significantly enlarge the currently virtually non-existing advertising possibilities for oral and dental care in Belgium, which have been the subject of discussions for many years. Belgian professional dentists’ associations are calling for a new legislative and/or ethical framework providing for regulations and supervision on the form and content of dental advertising, possibly in the framework of a Professional Council for Dentists (Orde van Tandartsen) – which does not exist to date – and ditto self-regulatory code.

In addition, the decision of the CJEU may have a broader impact on advertising and professional communications by other regulated professions in Belgium and the EU. In this respect, the Belgian Federation of Liberal Professions has announced that it will start discussions later this year between the various professional councils and institutions to explore further synergy, including regarding professional communications in accordance with the existing legal and ethical framework.

This post was originally co-authored by Charlot Van Der Jeucht.