OPINION OF ADVOCATE GENERAL
BOT
delivered on 8 September 2016 (1)
Case C‑339/15
Openbaar Ministerie
v
Luc Vanderborght
(Request for a preliminary ruling from the rechtbank van eerste aanleg te Brussel (Court of First Instance, ))
(Reference for a preliminary ruling — National legislation prohibiting providers of dental care from advertising their services to the public — National legislation defining the requirements of discretion to be fulfilled by a dental practice’s sign — Compatibility — Articles 49 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Existence of a foreign element — Restriction — Protection of public health — Proportionality — Directive 2000/31/EC — Electronic commerce — Scope — Article 3(3) — Exclusion of national provisions relating to health — Article 3(8) — Exclusion of national provisions governing regulated professions — Directive 2005/29/EC — Unfair commercial practices — Article 3(1) — Internal market clause — Applicability of the legal system of the service provider’s Member State of establishment — Article 8 — Restriction on freedom to provide information society services in order to ensure compliance with professional rules)
I – Introduction
1. The present request for a preliminary ruling provides the Court with the opportunity to rule once again on the compatibility of the Belgian legislation which very strictly regulates advertising in relation to dental care, in the light of both primary law, and in particular the rules on freedom of establishment and freedom to provide services, and secondary law applicable to unfair business practices and electronic commerce.
2. The Court has already ruled on the compatibility of certain provisions of that legislation by reference to the competition rules prohibiting agreements and concerted practices between undertakings, in its judgment of 13 March 2008 in Doulamis. (2)
3. The present case originated in criminal proceedings brought in Belgium against Mr Luc Vanderborght, a general dental practitioner, who is accused of having, between 1 March 2003 and 24 January 2014, advertised the dental services which he provides, in a manner contrary to the Belgian legislation.
4. Article 8d of the Koninklijk besluit houdende reglement op de beoefening der tandheelkunde (Royal Decree regulating the practice of dentistry) of 1 June 1934, (3) in the version in force at the time of the facts of the main proceedings, (4) sets out the requirements of the discretion to be exercised by providers of dental care when they place a plaque or an inscription at the entrance to the building in which they practise, in order to protect the dignity of the profession.
5. That provision reads as follows:
‘For the purpose of informing the public, it is permissible to affix only an inscription or a plaque of modest dimensions and appearance to the building in which a competent person … practises dentistry, stating the name of the practitioner and possibly his legal designation, his sessions days and times, the name of the undertaking or health care organisation within which the practitioner carries out his professional activity; it may also state the branch of dentistry in which the practitioner specialises: surgical dentistry, oral prosthesis, orthodontics, dental surgery.
…’
6. In the present case, Mr Vanderborght is accused of having affixed, at the entrance to his surgery, for the purpose of informing the public, a large advertising pillar, of immodest size and appearance. This sign consisted of three printed faces, each 47 centimetres high and 75 centimetres wide, on which appeared the practitioner’s name, his designation as a dentist and also the website and telephone numbers of the dental practice.
7. Article 1 de la Wet bettreffende de publiciteit inzake tandverzorging (Law on advertising in relation to dental care) of 15 April 1958, (5) in the version in force at the time of the facts of the main proceedings, (6) prohibits providers of dental care services, in the context of a profession or a dental practice, to advertise their services to the public, directly or indirectly, in any form whatsoever.
8. That provision is worded as follows:
‘No person may, whether directly or indirectly, engage in advertising of any kind with a view to treating or providing treatment, whether or not by a qualified person, in Belgium or abroad, for dental or oral ailments, injuries or abnormalities, by means, inter alia, of displays or signs, inscriptions or plaques liable to be misleading as to the lawful nature of the activity advertised, leaflets, circulars, handouts and brochures, via the media of the press, radio or cinema …’
9. In this instance, Mr Vanderborght is accused of having placed advertisements in local newspapers and recommended, through his website, his know-how in dental care, using for that purpose ‘before and after’ photographs and patient testimonials which refer to the difference between those services and the treatment provided by other dental practitioners.
10. In the present case, the rechtbank van eerste aanleg te Brussel (Court of First Instance, Brussels, Belgium), sitting as a criminal court, questions the compatibility of the provisions of the provisions on which the proceedings are based with the rules of EU law on, first, unfair commercial practices referred to in Directive 2005/29/EC; (7) second, electronic commerce, established by Directive 2000/31/EC; (8) and, third, freedom of establishment and freedom to provide services, enshrined in Articles 49 TFEU and 56 TFEU respectively.
11. In this Opinion, I shall state, first of all, that the legislation at issue in the main proceedings does not come within the scope of the Unfair Commercial Practices Directive because of the limitations expressly laid down by the EU legislature in Article 3(3) and (8) of that directive.
12. I shall observe, on the contrary, that a national rule, such as that laid down in Article 1 of the Law of 1958, which prohibits all advertising relating to the provision of dental care via the internet falls within the scope of the Directive on electronic commerce. I shall none the less explain that, having regard to Article 3(1) and Article 8(1), that directive does not appear to preclude that rule, since the rule is intended to ensure compliance with the rules of a regulated profession and applies to a service-provider established on the national territory.
13. Last, I shall examine the compatibility of that rule by reference to Articles 49 TFEU and 56 TFEU, on freedom of establishment and freedom to provide services. In the first place, I shall demonstrate that the main proceedings have a foreign element, in so far as the advertising in respect of which Mr Vanderborght is accused was effected on an internet site, which is a medium designed for worldwide distribution, making it possible to reach a public and therefore to attract patients in a Member State other than Mr Vanderborght’s Member State of establishment.
14. In the second place, I shall explain the reasons why a prohibition of all advertising of dental care to the public constitutes a restriction on the freedom to provide services, broadly applying the reasoning which I had proposed, for the sake of completeness, in my Opinion in Doulamis (C‑446/05, EU:C:2007:701). I shall explain why that restriction is, in my view, justified on the ground of the protection of public health, where the national legislation at issue in the main proceedings does not have the effect of prohibiting a dental care provider from giving basic details, free from enticement or incentive, making known his existence as a professional in a telephone directory or other source of information accessible by the public.
II – The questions referred for a preliminary ruling
15. It was in the context of the proceedings pending before it that the Rechtbank van eerste aanleg te Brussel (Court of First Instance, ) decided to refer to the Court the following questions for a preliminary ruling:
‘(1) Should [the Unfair Commercial Practices Directive] be interpreted as precluding a national law — such as Article 1 of the … Law of 15 April 1958 … which prohibits, in absolute terms, any advertising, by anyone, relating to oral or dental care?
(2) Is a prohibition on advertising in respect of oral and dental care to be regarded as a “rule relating to the health and safety aspects of products” within the meaning of Article 3(3) of [the Unfair Commercial Practices Directive]?
(3) Should [the Unfair Commercial Practices Directive] be interpreted as precluding a national provision — such as Article 8dd of the Royal Decree of … 1934 laying down rules for the practice of dentistry — which describes in detail the requirements in terms of discreetness to be met by a sign, intended for the public, at a dental practice?
(4) Should [the Unfair Commercial Practices Directive] be interpreted as precluding a national law — such as Article 1 of the … Law of 1958 — which prohibits, in absolute terms, any advertising, by anyone, relating to oral or dental care, including a prohibition on commercial advertising by electronic means (website)?
(5) How should the term “information society services”, as defined in Article 2(a) of [the Directive on electronic commerce] by reference to Article 1(2) of Directive 98/23/EC, [(9)] as amended by Directive 98/48/EC [of the European Parliament and of the Council of 20 July 1998], [(10)] be interpreted?
(6) Should Articles 49 TFEU and 56 TFEU be interpreted as precluding a national rule such as that at issue in the main proceedings, whereby, in order to protect public health, a complete ban is imposed on advertising in respect of dental care?’
III – European Union legal framework
A – The Unfair Commercial Practices Directive
16. Recitals 6, 8 and 9 of the Unfair Commercial Practices Directive read as follows:
‘(6) This Directive … approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers’ economic interests and thereby indirectly harm the economic interests of legitimate competitors. …
…
(8) This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. …
(9) This Directive … is also without prejudice to Community and national rules on … the health and safety aspects of products … The Member States will thus be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health and safety of consumers in their territory wherever the trader is based, for example in relation to alcohol, tobacco or pharmaceuticals …’
17. According to Article 1 thereof, the purpose of that directive is ‘to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests’.
18. Article 2(d) of that directive defines ‘business practices’ as ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. (11)
19. Article 3 of the Unfair Commercial Practices Directive, which defines the scope of that directive, provides:
‘1. This Directive shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product.
…
3. This Directive is without prejudice to Community or national rules relating to the health and safety aspects of products.
…
8. This Directive is without prejudice to any conditions of establishment or of authorisation regimes, or to the deontological codes of conduct or other specific rules governing regulated professions in order to uphold high standards of integrity on the part of the professional, which Member States may, in conformity with Community law, impose on professionals.
…’
20. According to Article 5(2) of that directive, a commercial practice is unfair if it is contrary to the requirements of professional diligence and it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
B – The Directive on electronic commerce
21. Recitals 7, 17, 18, 22, 32 and 33 of the Directive on electronic commerce read as follows:
‘(7) In order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market.
…
(17) The definition of information society services … covers any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service …
(18) Information society services span a wide range of economic activities which take place on-line … [they] are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications …
…
(22) Information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives … moreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member States in which the service provider is established.
…
(32) In order to remove barriers to the development of cross-border services within the Community which members of the regulated professions might offer on the Internet, it is necessary that compliance be guaranteed at Community level with professional rules aiming, in particular, to protect consumers or public health …
(33) This Directive complements Community law and national law relating to regulated professions maintaining a coherent set of applicable rules in this field.’
22. In accordance with Article 1(1) thereof, the Directive on electronic commerce has as its objective to ‘contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States’.
23. According to Article 1(2) of that directive, the directive ‘approximates … certain national provisions on information society services relating to the internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States’.
24. Article 2(a) of that directive defines ‘information society services’ by reference to Article 1(2) of Directive 98/34, as amended, which refers to ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.
25. Article 2(f) of the Directive on electronic commerce defines ‘commercial communication’ as ‘any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession’.
26. Article 2(h) of that directive, which defines ‘coordinate field’, is worded as follows:
‘“coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.
(i) The coordinated field concerns requirements with which the service provider has to comply in respect of:
– the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,
– the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider;
…’
27. Article 3 of that directive provides:
‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the in question which fall within the coordinated field.
2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another .
…
4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:
(a) the measures shall be:
(i) necessary for one of the following reasons:
…
– the protection of public health,
…
– the protection of consumers …
(ii) taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;
(iii) proportionate to those objectives;
…’
28. Article 8 of the Directive on electronic commerce, entitled ‘Regulated professions’, provides as follows in paragraph 1:
‘Member States shall ensure that the use of commercial communications which are part of, or constitute, an information society service provided by a member of a regulated profession is permitted subject to compliance with the professional rules regarding, in particular, the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of the profession.’
IV – My analysis
A – The compatibility of the provisions at issue of the Law of 1958 and the Royal Decree of 1934 with the Unfair Commercial Practices Directive
29. By its first to third questions, the referring court asks the Court, in essence, whether national rules such as those laid down in the provisions at issue of the Law of 1958 and the Royal Decree of 1934 may come under the Unfair Commercial Practices Directive and, if so, whether that directive precludes such rules.
30. The question arises in so far as the Unfair Commercial Practices Directive fully harmonises the national rules on unfair commercial practices and the Member States are therefore not permitted to retain or introduce in their legislation stricter national rules than those provided for in that directive, even in order to ensure a higher level of consumer protection. (12)
31. It has consistently been held that the Unfair Commercial Practices Directive is characterised by its very wide scope, the Court having held that it extends to ‘any commercial practice directly connected with the promotion, sale or supply of a product to consumers’. (13) In fact, the concept of ‘business-to-consumer commercial practices’ is defined in Article 2(d) of that directive as meaning ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. (14) The term ‘product’, in accordance with Article 2(c) of that directive, means any goods or service.
32. In addition, in Article 3(1) of the Unfair Commercial Practices Directive the EU legislature determines, in a positive manner, the scope of that directive, stating that it is to apply to unfair business-to-consumer commercial practices before, during and after a commercial transaction in relation to a product.
33. Prima facie, the Unfair Commercial Practices Directive therefore applies to all business-to-consumer transactions, in all sectors of activity.
34. However, the EU legislature made express provision for certain limitations to the application of that directive.
35. According to Article 3(3) of the Unfair Commercial Practices Directive, that directive ‘is without prejudice to Community or national rules relating to the health … aspects of products’. (15) In recital 9 of that directive, the EU legislature thus makes clear that ‘Member States will … be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health … of consumers’.
36. Consequently, although the stated objective of Unfair Commercial Practices Directive is to bring about the full harmonisation of national rules relating to such practices, the Member States none the less remain free to adopt more restrictive measures in the case of advertising practices affecting the health of consumers. In that case, those national measures are intended to protect interests which go much further than the mere protection of consumer economic interests referred to by that directive in recitals 6 and 8 and in Article 1.
37. In its Guidance on the implementation/application of the Unfair Commercial Practices Directive (16) and in its First Report on the application of that directive, (17) the European Commission thus emphasises that, where the measures adopted by the Member States aim at protecting interests which are not of an economic nature, they do not fall within the scope of that directive. According to the Commission, that directive therefore does not affect the possibility for the Member States to adopt more restrictive rules regulating commercial practices for reasons of protection of the health of consumers. (18)
38. Moreover, according to Article 3(8) of the Unfair Commercial Practices Directive, it is provided that ‘[that directive] is without prejudice to … the deontological codes of conduct or other specific rules governing regulated professions in order to uphold high standards of integrity on the part of the professional, which Member States may, in conformity with Community law, impose on professionals’.
39. Consequently, the Member States also remain free to adopt stricter rules as regards the practices provided by the members of a regulated profession such as the profession of dentist, to which Mr Vanderborght belongs.
40. It follows that, in order to come under the Unfair Commercial Practices Directive, the product concerned (a) must satisfy the conditions laid down in Article 3(1) of that directive and (b) must not come within one of the restrictions expressly referred to by the EU legislature in Article 3(3) and (8) of that directive.
41. While it is common ground that the service at issue in the main proceedings constitutes, in accordance with Article 2(d) of that directive, a business-to-consumer consumer practice in so far as the practices concerned involve advertising in relation to dental care, the referring court observes that the provisions at issue of the Law of 1958 and the Royal Decree of 1934 seek to protect, respectively, public health and the dignity of the profession of dentist, and the limitations provided for in Article 3(3) and (8) of the Unfair Commercial Practices Directive therefore seem to me to be applicable.
42. The prohibition of any advertising in relation to the provision of dental care, as established in Article 1 of the Law of 1958, and the requirements of discretion laid down in Article 8d of the Royal Decree of 1934 therefore indicate a health issue rather than an economic issue. As the Belgian Government submits in its observations, they play a part in upholding the dignity of the profession by preventing the quality of services, the integrity of practitioners and the confidence trust must exist between providers of dental care and their patients being jeopardised by advertising practices such as those at issue in the main proceedings, which are designed to attract patients by means of advertisements or promotions.
43. In the light of those factors, I therefore propose that the Court should rule that the Unfair Commercial Practices Directive must be interpreted as meaning that, owing to the limitations expressly provided for by the EU legislature in Article 3(3) and (8) of that directive, does not apply to a national rule, such as that laid down in Article 1 of the Law of 1958, which prohibits all advertising in relation to the provision of dental care, or to a national rule, such as that laid down in Article 8d of the Royal Decree of 1934, which establishes the requirements of discretion with which a dental practice must comply.
B – The compatibility of the provisions at issue of the Law of 1958 with the Directive on electronic commerce
44. By its fourth and fifth questions, the referring court asks the Court whether a national rule, such as that laid down in Article 1 of the Law of 1958, which prohibits all advertising in relation to the provision of dental care, including electronic advertising, may come under the Directive on electronic commerce and, if so, whether that rule constitutes, for the purposes of that directive, a restriction on the freedom to provide electronic commerce services.
45. The Directive on electronic commerce seeks to contribute to the development of ‘information society services’ and to maximise the opportunities afforded to electronic commerce by the internal market, in order to enhance economic growth and the competitiveness of European industry. (19)
46. The directive covers only certain legal aspects of electronic commerce. (20) As the Court observed in its judgment of 25 October 2011 in eDate Advertising and Others, (21) it is not intended to achieve harmonisation of substantive rules, but defines a ‘coordinated field’ which relates to the requirements with which the provider of the service must comply. (22)
47. In accordance with Article 2(h) of the Directive on electronic commerce, ‘coordinated field’ refers to all the requirements laid down in national laws with which the service provider has to comply in respect of the taking up of the activity of an information society service and the exercise of such an activity, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider.
48. Article 2(a) of that directive defines ‘information society services’ as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’. (23) It follows from recital 18 of the Directive on electronic commerce and from the Court’s case law (24) that those services include services provided at a distance by means of electronic equipment for the processing and storage of data and extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications. (25)
49. In this instance, the advertising relating to the provision of dental services which Mr Vanderborght made via an internet site which he set up comes in my view within the scope of the Directive on electronic commerce.
50. Not only does such advertising constitute an on-line ‘commercial communication’ within the meaning of Article 2(f) of that directive, but it is also made by a member of a regulated profession, which is expressly permitted the EU legislature in Article 8(1) of that directive. In that provision, the EU legislature establishes the principle that Member States must ensure that the members of a regulated profession may advertise on the internet provided that they comply with the rules of the profession.
51. Consequently, a national rule such as that at issue in the main proceedings may indeed be seen from the perspective of the provisions laid down by the EU legislature in the context of the Directive on electronic commerce.
52. I shall now examine the substantive provisions of that directive.
53. To my mind, the compatibility with EU law of the rule at issue in the main proceedings must be examined in the light of Article 3(1) and 8(1) of that directive.
54. Article 3(1) of the Directive on electronic commerce, entitled ‘Internal market’, is the ‘cornerstone’ of that directive. (26)
55. Article 3(1) of that directive establishes the principle that information society services are to be subject to the law of the in which the service provider is established. (27)
56. That provisions thus requires each to ensure that the services supplied by a provider established on its territory comply with the national provisions which are applicable in that and which come within the ‘coordinated field’. According to the EU legislature, such a mechanism must enable information society services to be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives. (28)
57. In its judgment of 25 October 2011 in eDate Advertising and Others, (29) the Court thus held, in the light of the ‘coordinated field’ referred to in the Directive on electronic commerce, that the law of the Member State in which the service provider is established includes the rules of civil law and the rules relating to liability of service providers. In the absence of harmonised rules at EU level, the Court thus concluded that those substantive rules to which the had decided to make the service providers and their services subject are binding. (30)
58. To my mind, that reasoning is applicable by analogy in the context of a commercial communication made over the internet, in so far as the ‘coordinated field’ referred to the Directive on electronic commerce also covers, as provided for in the second indent of Article 2(h)(i) of that directive, requirements concerning the behaviour of the service provider and requirements regarding the quality and content of advertising.
59. In those circumstances, it seems to me that the mechanism provided for in Article 3(1) of the directive prescribes, in the case of advertising on the internet, the application of the substantive law in force in the in which the service provider is established.
60. Consequently, in the present case, nothing seems to preclude the application of the Belgian legislation, as the service at issue in the main proceedings does not come from a other than the , since Mr Vanderborght is established in Belgian territory.
61. The situation described in Article 3(2) of the Directive on electronic commerce therefore does not apply. (31)
62. Accordingly, it is now necessary to take account of the rules expressly laid down by the EU legislature in Article 8(1) of that directive with respect to commercial communications made specifically by members of a regulated profession.
63. It follows from the first part of that provision that the Member States are, in principle, required to permit the members of a regulated profession to have recourse to commercial communication, by means of electronic communication. As the Commission states in its First Report on the application of the Directive on electronic commerce, that means that the members of the regulated professions may provide information to their clients via websites, which, according to the Commission, was previously not possible in a number of Member States. (32)
64. However, that principle is subject to an exception as regards compliance with the deontological rules of the profession.
65. In effect, in the second part of that provision, the EU legislature permits the Member States to adopt specific rules in order to ensure compliance with the professional rules regarding, ‘in particular’, the independence, dignity and honour of the profession and fairness towards clients and other members of the profession. In that sense, I can certainly see that, in accordance with recital 33 of the Directive on electronic commerce, that directive ‘complements’ national law relating to regulated professions.
66. In permitting such restrictions, the EU legislature distinguishes the services provided by the members of a regulated profession from those provided by any other service provider, since medicine and the sale of medicinal products, or the provision of legal advice and the drafting of notarial documents, is not a business like any other business. The nature of those activities does not permit advertising on the same terms as advertising by another service provider, as the latter is free to promote the provision of his services by any form of communication in order to encourage consumers to make use of them.
67. The reasons stated for those restrictions are not exhaustive, as shown by the use, in Article 8(1) of the Directive on electronic commerce, of the adverbial phrase ‘in particular’. There can be no doubt that compliance with the rules of the health professions includes the protection of public health and in particular the protection of the health of the patient, which is the primary duty of dental surgeons, as is apparent from the code of deontology of that profession and that of the profession of medical practitioner. (33) National legislation such as that at issue in the main proceedings must therefore be interpreted as clearly playing a role in ensuring compliance with the rules of deontology regulating the profession of dentist. By prohibiting any form of advertising in relation to the provision of dental care, the seeks to avoid and breach of patients’ trust in the dental practitioner that might affect the dignity of the profession and to ensure that the quality of care is not jeopardised to the detriment of patients. It also aims to avoid the integrity of dental practitioners being affected by means of advertisements or promotions and the reputation of dental practitioners being undermined by action such as that taken by Mr Vanderborght, who disseminates on his website patients’ testimonials referring to the differences between his services and the treatment offered by other dental practitioners.
68. The restrictions set out in Article 1 of the Law of 1958 may therefore in my view be justified, within the meaning of Article 8(1) of the Directive on electronic commerce, for reasons associated with compliance with the deontological rules of the profession of dentist.
69. In the light of those factors, I consider that the Directive on electronic commerce, and in particular Article 3(1) and Article 8(1) thereof, must be interpreted as meaning that it does not preclude a national rule, such as that laid down in Article 1 of the Law of 1958, which prohibits providers of dental services, in the context of a profession or a dental practice, from making any advertising whatsoever, via the internet, of their services, provided that that rule aims to ensure compliance with the rules of the profession and applies to a service provider established on the national territory.
70. It is by reference to primary law that the compatibility of that rule with EU law should now be assessed.
C – The compatibility of the provisions at issue of the Law of 1958 with freedom of establishment and freedom to provide services
71. By its sixth question, the referring court asks the Court, in essence, whether Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they preclude legislation of a Member State which prohibits dental care providers, in the context of professional services or a dental surgery, from engaging in advertising of any kind of their services, whether directly or indirectly, to the public.
72. It has consistently been held that medical and paramedical activities, in particular those relating to dental care, come within the scope of the Treaty provisions guaranteeing the freedoms of movement. (34)
73. It is settled case-law that those provisions cannot be applied to a situation which is confined in all respects within a single . (35) The application of the Treaty provisions on freedom of establishment and freedom to provide services is therefore conditional on the existence of a foreign element.
74. In the present case, the position is that Mr Vanderborght carries out his activities in , where he is established, and is the subject of criminal proceedings in that . Those proceedings were initiated not only because he placed a plaque at the entrance to his surgery that did not comply with the requirements of discretion imposed by national law, but also because he engaged in advertising in a local newspaper and on his website.
75. Unlike Mr Doulamis in the case giving rise to the judgment of 13 March 2008 in Doulamis (C‑446/05, EU:C:2008:157), who had only placed advertisements in a national paper directory, Mr Vanderborght engaged in advertising by means of a tool which, by its nature, has no frontiers.
76. In its judgment of 25 October 2011 in eDate Advertising and Others, (36) concerning an alleged infringement of the right to protection of personality by means of content on an internet website, the Court recognised that ‘the placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it in regard to its consultation beyond that person’s Member State of establishment’. (37) The Court concluded that ‘it … appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal’. (38)
77. In the context of the internet, the commercial advertising by electronic means in which Mr Vanderborght engaged is therefore sufficient, in my view, to satisfy the ‘foreign element’ criterion in so far as it is capable of reaching a public and thus attracting patients situated in a Member State other than his Member State of establishment.
78. The Court has also accepted that that foreign element may be the consequence not only of the service-provider himself but also of the recipient. In its judgment of 11 June 2015 in Berlington Hungary and Others, (39) the Court thus concluded that there was a cross-border interest in so far as a number of the customers of the businesses operating slot machines were European Union citizens holidaying in Hungary, thus making clear that ‘services which a provider carries out without moving from the Member State in which he is established for recipients established in other Member States constitutes the provision of cross-border services for the purposes of Article 56 TFEU’. (40)
79. In the light of those factors, I therefore consider that the main proceedings have sufficient connection with EU law for the Court to be able to assess the compatibility of the national legislation at issue in the main proceedings with the freedoms of movement guaranteed by the FEU Treaty.
1. Applicable primary law
80. As a preliminary point, it is appropriate to examine whether the national legislation at issue in the main proceedings must be examined from the aspect of freedom of establishment or from that of freedom to provide services.
81. It follows from the Court’s case law that, when a national measure concerns two fundamental freedoms guaranteed by the Treaty, the Court will in principle examine the measure in question in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it. (41)
82. To my mind, that is the position here. In the present case, I am inclined to think that the centre of gravity lies more on the side of the freedom to provide services, having regard to the aim pursued by Mr Vanderborght not only by advertising in local newspapers but also by setting up a website. By engaging in such advertising practices, Mr Vanderborght sought to win a new clientele, whether established in his of establishment or in another . (42)
83. While freedom of establishment is also liable to be affected by a prohibition such as that at issue in the main proceedings, in that it may constitute, for professionals established in another Member State, a serious barrier to entry to the market for the provision of dental care and, consequently, to the exercise of their activities, (43) that freedom seems here to be secondary in relation to the freedom to provide services and may in my view be considered together with it.
84. In those circumstances, I therefore propose that the Court should examine the compatibility of the national rule at issue in the main proceedings in relation to Article 56 TFEU.
2. The existence of a restriction on the freedom to provide services
85. In accordance with the Court’s case-law, all measures which prohibit, impede or render less attractive the exercise of that freedom are also to be regarded as constituting restrictions on freedom to provide services within the meaning of Article 56 TFEU. (44)
86. Those measures include measures which, while being applicable without distinction, restrict the right of service-providers established on the territory of the to offer services to potential recipients established in other Member States.
87. In its judgment of 10 May 1995 in Alpine Investments, (45) the Court held that a rule of a Member State prohibiting an undertaking established on its territory from contacting by telephone individuals established in other Member States in order to offer various financial services to them may constitute a restriction on freedom to provide services. The Court first of all held that the fact that those services are merely offers made by a provider established in one Member State to a recipient established in another Member State who has not yet been determined does not preclude the application of Article 56 TFEU. According to the Court, the freedom to provide services would become illusory if national rules were at liberty to restrict offers of services. (46) The Court then held that such a prohibition, in that it deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States, restricts the freedom guaranteed by Article 56 TFEU, even though the prohibition in question is imposed in the Member State in which the provider is established. The Court thus makes reference to its consistent case law. The right freely to provide services may be relied on by an undertaking as against the Member State in which it is established if the services are provided for persons established in another Member State. (47)
88. To my mind, that reasoning can be applied by analogy to a national rule, such as that at issue in the main proceedings, which prohibits all advertising in respect of the provision of dental care.
89. Advertising (48) in the press or on the internet thus does indeed seem to be an essential instrument allowing economic operators of all sizes to make themselves known and provide information to consumers about the services which they offer. It thus plays a decisive role in a provider’s ability to extend its customer base. In that regard, internet advertising is nowadays an extremely effective means of providing information capable of reaching a very wide public and being of interest to customers established in other Member States. Advertising also promotes competition in so far as it is the means whereby economic operators seek to convince consumers to use their services rather than their competitors’. Last, as the Commission emphasised in its First Report on the application of the Directive on electronic commerce, internet advertising provides a major source of revenue for many information society service providers. (49)
90. The prohibition of all kinds of advertising in the field of dental care, such as that provided for by the Law of 1958, therefore deprives a professional like Mr Vanderborght of an effective means of providing information in order to make his services known to a potential clientele established in other Member States. That prohibition is therefore indeed of such a kind as to affect the provision of dental care to patients established in other Member States. In addition, as I had emphasised in my Opinion in Doulamis (C‑446/05, EU:C:2007:701), such an advertising regime deprives providers of advertising services established in Member States other than the Kingdom of Belgium of the possibility of offering their services to professionals established in Belgium and also prevents those professionals from using the services of such providers. (50)
91. In those circumstances, such a prohibition does indeed seem to me to constitute a restriction on the freedom guaranteed by Article 56 TFEU.
92. It is now appropriate to examine whether that restriction may be justified.
3. The justification for the restriction
93. In the case giving rise to the judgment of 13 March 2008 in Doulamis (C‑446/05, EU:C:2008:157), the Belgian Government set out its reasons for adopting the prohibition of all advertising by providers of dental care. According to the Belgian Government, advertising practices aimed at attracting patients by means of advertisements or promotions are irreconcilable with the requirements of the protection of public health and the dignity of the profession. Such practices would be liable to undermine the trust which must exist between dental care providers and their patients, as well as the status and integrity of dental practitioners.
94. I am of the view that Member States are entitled to prohibit dental care providers from advertising their services to the general public where that prohibition is limited to the promotion of those services. I base that analysis on the following considerations.
95. In accordance with settled case law, a restriction on the exercise of a freedom of movement may be justified if four conditions are met, namely that the restriction must be applied in a non-discriminatory manner; it must be justified by an overriding reason of general interest; it must be suitable for ensuring the attainment of the objective pursued; and it must no go beyond what is necessary to achieve that objective, given that such legislation, according to the Court, fulfils that condition only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner. (51)
96. The first of those conditions is satisfied, since the rules on advertising at issue in the main proceedings apply irrespective of the of establishment of the providers to whom they are addressed.
97. Nor can it be disputed that the second condition is also satisfied.
98. It has consistently been held that the protection of the health and life of humans and the protection of consumers are objectives which may be regarded as overriding reasons in the public interest capable of justifying a restriction on the freedom to provide services. (52) The Court has held, moreover, in that regard, that the health and life of humans rank foremost among the interests protected by the provisions of the Treaty (53) laying down permissible derogations from the prohibition of restrictions on the freedoms of movement.
99. In my view, the third condition required by the case law is also satisfied.
100. In fact, there can be no doubt that information provided to the public in the health sector must come from objective sources and advertising carried out by the service providers themselves does not necessarily fulfil that requirement of objectivity. In those circumstances, the ban prohibiting service providers from engaging in advertising of any kind of their services to the public is indeed intended to prevent them from engaging in advertising activities which might undermine the trust which their patients place in dental practitioners, by detracting from the dignity of their profession and thus compromising the quality of care.
101. The central issue in the present case is therefore, in actual fact, whether such a prohibition is disproportionate in relation to such objectives or, in other words, whether those objectives may be achieved just as effectively by measures which are less restrictive. (54)
102. The existence of that legislation therefore prompts me to examine whether the protection of public health and the protection of the dignity of the profession are capable of justifying a ban prohibiting dental care providers from engaging in advertising in the same way as for any other service provider, that is to say, by promoting their services through any form of communication in order to encourage the consumer to purchase them. It must also be ascertained whether those grounds are capable of justifying a prohibition on any form of advertising to the general public.
103. For the same reasons as those set out in my Opinion in Doulamis (C‑446/05, EU:C:2007:701), I consider that the protection of public health may justify the prohibition of any form of communication designed to attract or provide an incentive to the general public, for the following reasons.
104. In the first place, healthcare services differ from other services. They affect the physical integrity and psychological balance of the recipient. Moreover, a patient who avails himself of those services is responding to a genuine need related to the restoration of his health and, in some cases, the protection of his life. Bearing in mind the importance of what is thus at stake, when having to decide whether or not to avail himself of treatment, the patient does not have the same freedom of choice as he does with other services. When he avails himself of treatment, the patient is not satisfying a desire but responding to a need.
105. In the second place, the dental care sector, as with all activities in the healthcare sector, is one in which, in my view, the degree of ‘asymmetry of information’ between the provider and the recipient of the service, to adopt the expression used by the Commission in its Report on Competition in Professional Services, (55) is at its highest. That means that, in his area of activity, the service provider has a level of competence which is very much higher than that of the recipient, so that the latter is not in a position to make a genuine assessment of the quality of the service offered.
106. Consequently, taking into account that asymmetry in the level of competence and the significance to the patient of the decision whether or not to avail himself of healthcare services, I consider that the relationship of trust between the patient and the healthcare professional is a vital one. In other words, it must be possible for the patient to be convinced that, when that practitioner advises or recommends that he follow a course of treatment, the reasons for that advice or recommendation relate solely to the protection of his health and are not financially motivated.
107. It is for those reasons that I consider that that relationship of trust would necessarily be undermined if dental care providers were permitted to advertise to the general public in order to promote their services. In such circumstances, the patient might legitimately fear that, when the practitioner advises or recommends that he follow a course of treatment, that advice or recommendation is motivated, at least in part, by the economic interests of the practitioner. The patient might then reassess the value of that advice or recommendation and thus compromise his state of health by refusing or deferring the treatment proposed.
108. The indication of the fee is not in itself without danger. It cannot be precluded that professionals will be tempted to engage in price competition corresponding to competition on the service, which could lead to a reduction in actual quality, if not in the technical act, in any event, for example, of the prosthesis implanted, which the patient is not technically capable of measuring.
109. Consequently, I am of the opinion that the protection of public health may properly justify a ban prohibiting dental care providers from engaging in any form of advertising to the general public to promote their services.
110. Since the EU legislature has not adopted any common or harmonised rule concerning advertising in the field of dental care, the Court has repeatedly held that it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that level of protection is to be achieved. Since the level of protection may vary from one to another, the Court considers that the Member States must be allowed a measure of discretion. (56)
111. When exercising that discretion, the Member States must, of course, ensure that the measures adopted are proportionate and necessary. (57)
112. In this instance, the prohibition referred to in Article 1 of the Law of 1958 is not in my view contrary to Article 56 TFEU. Having regard to the particular nature of the services at issue in the main proceedings, to what is at stake for the patient when he decides whether or not to have recourse to dental care services and to the relationship of trust that must be protected between the dental care provider and the patient, that prohibition seems to me to be perfectly logical.
113. The need for such high levels in the health care sector has already been reflected in the very strict rules applicable to the health professions in the different Member States. Moreover, it was those extensive rules that prompted the EU legislature to adopt in that field the first sectoral directives on recognition of the qualifications needed to exercise those professions and on harmonisation of the training required in order to obtain those qualifications. (58)
114. Furthermore, the relationship between a patient and a treatment provider is concerned with services for which the need for quality is clearly higher than in other sectors of activity. Healthcare is therefore a sector in which freedom of movement for professionals has met with significant obstacles and in which the need for mutual recognition has required very broad harmonisation by the EU legislature.
115. Nonetheless, the prohibition referred to in Article 1 of the Law of 1958 cannot be unlimited.
116. In order for dental care providers, as well as other healthcare professionals, to be able to pursue their activities, the public must be aware of their existence. That means that the public must have some way of knowing the identity of the service provider, whether a natural person or a legal person, the services which he is permitted to provide, the place where he provides them, his hours of business and contact details, such as telephone and fax numbers or an internet address.
117. Public access to such factual information is therefore necessary in order to put into effect freedom of movement for healthcare professionals. It also helps to improve the protection of public health by facilitating patient mobility within the European Union. Developments in the Court’s case-law since the judgments of 28 April 1998 in Decker (59) and Kohll (60) shows that patients increasingly seek treatment in other Member States. (61) There are several reasons for that trend. They may, for example, wish to benefit from less expensive healthcare or treatments which do not exist in their of residence, or they may wish to be treated more quickly than in that State. This mobility, in giving patients access to a wider range of healthcare than is available in their of residence, also contributes to the protection of public health.
118. A national law prohibiting dental care providers from advertising their services, whether directly or indirectly, to the general public should not go so far as to prohibit such service providers from giving, in a telephone directory or other source of information accessible by the public, basic details, free from enticements or incentives, making known their existence as professionals, such as their name, the activities they are permitted to pursue, the place where they pursue them, their hours of business and their contact details.
119. That does not seem to me to be the case if the terms of Article 1 of the Law of 1958 and those of Article 8d of the Royal Decree of 1934 are taken into account.
120. In any event, it is for the national court to assess whether, in this case, the advertising messages which Mr Vanderborght placed in local newspapers and on his internet site go beyond that limit, having regard, in particular, to the presentation of those advertisements, the inclusion of ‘before and after’ photographs and the reproduction of patients’ testimonials referring to the difference between the services and the treatments offered by other dental practitioners.
121. It is in the light of those considerations that I propose that the Court’s answer to the referring court should be that a national rule, such as that laid down in Article 1 of the Law of 1958, which prohibits providers of dental care, in the context of a profession or a dental surgery, to engage in advertising of any kind, directly or indirectly, to the general public of their services constitutes a restriction on freedom of establishment and freedom to provide services, within the meaning of Articles 49 TFEU and 56 TFEU.
122. However, that restriction is justified on the ground of the protection of public health where the national legislation at issue in the main proceedings does not have the effect of prohibiting such service providers from giving, in a telephone directory or other source of information accessible by the public, basic details, free from enticements or incentives, making known their existence as professionals, such as their name, the activities they are permitted to pursue, the place where they pursue them, their hours of business and their contact details.
V – Conclusion
123. In the light of the foregoing considerations, I propose that the Court should answer the rechtbank van eerste aanleg te Brussel (Court of First Instance, ) as follows:
(1) Directive 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 and amending Council Directive 84/450/, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) must be interpreted as meaning that, owing to the limitations expressly provided for by the EU legislature in Article 3(3) and (8) of that directive, it does not apply to a national rule, such as that laid down in Article 1 of the Wet bettreffende de publiciteit inzake tandverzorging (Law on advertising in relation to dental care) of 15 April 1958, in the version in force at the time of the facts in the main proceedings, which prohibits all advertising in relation to the provision of dental care, or to a national rule, such as that laid down in Article 8d of the Koninklijk besluit houdende reglement op de beoefening der tandheelkunde (Royal Decree regulating the practice of dentistry) of 1 June 1934, in the version in force at the time of the facts of the main proceedings, which lays down the requirements of discretion with which the sign of a dental practice must comply.
(2) Directive 2001/31/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 (Directive on electronic commerce), and in particular Article 3(1) and Article 8(1) thereof, must be interpreted as meaning that it does not preclude a national rule, such as that established in Article 1 of the Law of 15 April 1958 on advertising in relation to dental care, in the version in force at the time of the facts of the main proceedings, which prohibits providers of dental care, in the context of a profession or a dental practice, from advertising via the internet any advertising whatsoever for their services, where that rule aims to ensure compliance with the rules of the profession and applies to a service provider established on the national territory.
(3) A national rule, such as that laid down in Article 1 of the Law of 15 April 1958 on advertising in relation to dental care, in the version in force at the time of the facts of the main proceedings, which prohibits providers of dental care, in the context of a profession or a dental practice, from engaging in advertising of any kind of their services, whether directly or indirectly, to the general public constitutes a restriction on the freedom of establishment and the freedom to provide services within the meaning of Articles 49 TFEU and 56 TFEU.
That restriction is justified on the ground of the protection of public health where the national legislation at issue in the main proceedings does not have the effect of prohibiting such service providers from giving, in a telephone directory or other source of information accessible by the public, basic details, free from enticements or incentives, making known their existence as professionals, such as their name, the activities they are permitted to pursue, the place where they pursue them, their hours of business and their contact details.