The matter at hand

This matter relates to criminal proceedings brought against a dentist, Mr Vanderborght, on the ground that he advertised his dental services contrary to a provision of Belgian law, by installing a sign stating his name, his designation as a dentist, the address of his website and the telephone number of his practice and by placing advertisements in local newspapers. The relevant provision of Belgian law prohibits, in absolute terms, any advertising relating to oral and dental care.

In the criminal proceedings before the Brussels Court of First Instance, Mr Vanderborght argued that this provision is contrary to EU law, in particular the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and Articles 49 and 56 TFEUTreaty on the Functioning of the European Union. The Brussels Court of First Instance referred this question to the ECJ for preliminary ruling.

The judgment of the ECJ

The ECJ recalls that Article 3(3) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market provides that the directive is without prejudice to national provisions relating to the health and safety aspects of products. The ECJ rules that the provision of national legislation at issue falls under this Article, considering that it is aimed at protecting public health. On this basis, the ECJ concludes that the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market does not preclude national legislation which protects public health by imposing a general and absolute prohibition of any advertising relating to the provision of oral and dental care services.

As to the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, the ECJ notes that Article 8(1) thereof lays down the principle that Member States are to ensure that the use of commercial communications which are part of an information society service provided by a member of a regulated profession, or which constitutes such a service, is authorised. The ECJ rules that this provision covers the online advertising by a dentist relating to the provision of oral and dental care services, considering that in Belgium the profession of dentist constitutes a regulated profession (paragraph 34) and that it already follows from the judgment of the ECJ in McFadden (C-484/14) that online advertising may constitute an information society service (paragraph 38). The ECJ rules that, although the content and form of such advertising may legitimately be subject to professional rules, such rules cannot include a general and absolute prohibition of that type of communication. On this basis, the ECJ concludes that the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market “must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes 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” (paragraph 52).

Lastly, the ECJ considers whether Articles 49 and 56 TFEUTreaty on the Functioning of the European Union preclude national legislation which imposes a general and absolute prohibition of any advertising relating to the provision of oral and dental care services. The ECJ rules that this is the case, considering that “[n]ational legislation which imposes a general and absolute prohibition of any advertising for a certain activity is liable to restrict the possibility, for the persons carrying on that activity, of making themselves known to their potential clientèle and of promoting the services which they offer to their clientele” (paragraph 63) and must therefore be regarded as a restriction on the freedom to provide services (paragraph 64). In this connection, the ECJ holds that the general and absolute prohibition cannot be justified by objectives in the public interest, considering that not all the advertising messages prohibited by the national legislation are, in themselves, likely to produce effects that are contrary to such objectives. The general and absolute prohibition at issue therefore exceeds what is necessary to attain the objectives pursued by that legislation (paragraphs 65 – 73).