Monday, 8 May 2017

Ban on advertising of dental practices contrary to EU (not consumer) law - CJEU in Vanderborght (C-339/15)

It is not the first time that the CJEU has to assess the compliance with EU law of Belgian law and its tendency to absolutely prohibit certain commercial practices. In the Vanderborght case (decided last Thursday, 4 May; case C-339/15), it was the ban on advertising of dental practices that was at stake.

Mr Vanderborght offered and advertised his dental services in Belgium, the latter 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", as well as by advertising in local newspapers. On his website he provided information on various treatments he offered. A professional association of dentists (Verbond der Vlaamse Tandartsen) was concerned about his advertising practices as pursuant to Belgium law advertising relating to oral and dental care is prohibited, in order to protect public health and dignity of the profession of dentist. Mr Vanderborght claimed that such a general ban on advertising was contrary to EU law, among other things, to the provisions of the Unfair Commercial Practices Directive (2005/29/EC).

The CJEU points out that the UCPD allows the Member States to introduce other rules that aim at protecting health and safety of consumer products, as well as codes of conduct related to upholding "high standards of integrity on the part of the professional" (para. 26-27). Therefore, EU consumer law will not stand in the way of imposing a general ban on advertising regulated services, which ban is motivated by concern for public health and safety of products. However, such a general ban on advertising may infringe the freedom of movement of services - art. 56TFEU and provisions of the E-Commerce Directive (2000/31/EC), considering also advertising via websites falls within the scope of this ban.

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