Dentists cannot be absolutely prohibited from advertising their services, the Court of Justice of the European Union (CJEU) has recently ruled. This does not mean, however, that the relevant national association cannot supervise the form and manner of any communication tools used by such professionals in order to ensure the protection of public health and of the dignity of the profession itself.
The EU’s Electronic Commerce Directive provides that member states must permit the use of commercial communications – that is, advertising – by a member of a regulated profession but such communication must comply with the rules of the profession. The question therefore arises as to what is the legal position of those professionals whose association imposes an absolute prohibition on advertising their particular services. Some light on this question has now been shed by the CJEU in this judgment.
The facts of this case which came before the CJEU were briefly as follows. Belgian law prohibits in absolute terms any advertising relating to the provision of oral and dental care services and advocates discretion in so far as signage advertising a dental clinic is concerned.
A dentist established in Belgium advertised his dental care services 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. He also created a website in order to inform patients of the various types of treatment which he provides at his practice and placed some advertisements in local newspapers.
Following a complaint lodged by a dentists’ professional association, criminal proceedings were filed against the said dentist for breach of national law. In his defence, the dentist maintained that the Belgian rules in question are contrary to EU law, in particular, the directive on electronic commerce and the fundamental principle of freedom to provide services as laid down in EU treaties. The national court seized of the case decided to refer the matter to the CJEU.
The CJEU observed that the directive on electronic commerce prohibits legislation such as the Belgian one, which makes provision for an absolute prohibition of any form of electronic commercial communication by dentists, aimed at promoting oral and dental care. The court noted that, although the content and form of such communications may legitimately be subject to professional rules, the latter cannot stipulate a general and absolute prohibition of any type of online advertising aimed at promoting the professional activity in question.
Such a general and absolute prohibition on the advertising of professional services also goes against the fundamental EU principle of freedom to provide services, the court asserted. This is so since a prohibition to advertise a certain professional activity could restrict the possibility for the relevant professionals of making themselves known to their potential clientele and of promoting their services. Such a prohibition therefore constitutes a restriction on the freedom to provide services.
The CJEU acknowledged that the objectives of the Belgian law in question, that is, the protection of public health and dignity of the dentistry profession, could be seen as being overriding reasons in the public interest. They could therefore as such be capable of justifying a restriction on the freedom to provide services. It is also true, the court conceded, that the extensive use of advertising or of aggressive promotional messages could mislead patients as to the care being offered and hence damage the image and reputation of the dentistry profession.
Nonetheless, the CJEU concluded that imposing a general and absolute prohibition of any advertising is not the way to go about protecting public health and public interest since such a drastic measure goes beyond what is necessary to attain the objectives in question. Indeed, the CJEU affirmed that the same objectives could be attained through the use of less restrictive measures such as through the close supervision by professional associations of advertising tools used by dentists.
Most professional associations impose restrictions on their members when it comes to advertising. This judgment, however, clearly indicates that a balance must be kept at all times between the objective of protecting the public and the profession itself, often the impetus behind such restrictions, with the fundamental right of EU professionals to freely provide their services to the public at large.
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.
mariosa@vellacardona.com