Monday, 12 September 2016

AG opinion in Vanderborght (C-339/15): Belgian prohibition of all ads for dental care is EU law-proof.

Last Thursday, AG Bot has delivered his opinion in case C-339/15, a Belgian case concerning the prohibition, in that country, of any form of advertisement relating to dental care.

The national court which has submitted the preliminary ruling request doubts the compatibility of these- quite old- Belgian provisions with primary and secondary EU law- with headings ranging from internal market freedoms to the Unfair Commercial Practices Directive, to the so-called "E-commerce" Directive.

An interesting question that the Court may need to address is whether a similar prohibition can fall under the exception carved out into the UCPD for "health and safety aspects of products", the regulation of which is left unaffected by the directive.

According to AG Bot, the provision does fall under that exception. Looking at the Directive's recitals, the AG observed that under recital 9 makes clear that Member States would "be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health of the consumers". In his view, this observation is reinforced by the fact that according to the commission's guielines on the implementation of the UCPD, all measures adopted by the Member States tgat aim at protecting interests which are not of an economic nature fall outside the scope of the Directive (para 37).  For this reason, the Directive does not apply. 

The e-commerce directive is in principle applicable (para 49), Under article 3 of that Directive, in principle information society services (such as, in this case, online advertising by a professional) are subject to the law of the MS in which the service provider is established. In the case at hand, the professional concerned was located in Belgium- thus the directive sets no obstacles to the applicability of Belgian law.  
According to the Directive's article 8, professionals must be able to give clients information on their activities through the internet; however, in the case of regulated professions, they can only do so provided they comply with the (national) deontological rules of the profession. According to AG Bot, legislation such as that as issue in the main proceesings must "be interpreted as clearly playing a role in ensuring compliance with the rules of deontology regulating the profession of dentist" (para 67). Thus, the AG thinks the restrictions set out by Belgian law may be justified by reasons associated with the compliance with the deontological rules of the profession of dentist. 

In particular, AG Bot explains in the following section assessing the rules' compatibility with treaty law, the protection of public health is such that even quite far-reaching measures, su as the ones discussed in the case, can satisfy the requirement of proportionality (see para 100 and ff). This is both due to the crucial interest that healthcare has for citizens and to the pervasiveness of information asymmetries in this field, which make trust an indespensable element. 

Advertisement of healthcare services and products, according to the AG, is capable of undermining consumer trust. The need to preserve trust is such that negative integration is not desirable and the Union has at several points felt the need to legislate in order to facilitate mobility of providers (para 114).

In any case, the prohibition cannot be unlimited since providers must be able to let the public know of their existence.  This condition, according to the AG, is satisfied as long as a sufficiently detailed publicly available directory exists, "free from enticements or incentives", where names, contact details and areas of expertise are indicated (para 118).

The AG, it seems, considers the disruptive potential of advertisement on patient's trust a given, and bases large parts of his analysis on this fact- it remains to see whether the Court will agree. 

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