WRITTEN QUESTION P-2784/98

by Eva Kjer Hansen (ELDR) to the Commission

(9 September 1998)

Subject: Advertising of medical services

Under German law, practising dentists are not permitted to advertise their services either inside or outside Germany. Pursuant to Law No 463 of 10 June 1997, Danish law permits the advertising of medical practices provided that it is objective, accurate and adequate. A dental practice situated in Germany can thus be prosecuted for advertising its services in Denmark, where such advertising is legal.

Will the Commission state whether the German ban on advertising runs counter to Article 59 of the Treaty concerning the freedom to provide services?

Answer given by Mr Monti on behalf of the Commission

(2 October 1998)

The Honourable Member notes that whereas German dentists are banned from advertising their services in Germany, in Denmark they can advertise, subject to strict conditions. Given that a German dentist could thus advertise in Denmark but his Danish equivalent would be barred from undertaking such commercial communications in Germany, the Honourable Member asks whether the German ban is not contrary to Article 59 of the EC Treaty on the free movement of services.

As the Commission has indicated in the communication adopted in March on this issue(1), the Honourable Member is correct in stating that commercial communication services such as advertising services fall under Article 59 of the EC Treaty. However, this does not automatically imply that the ban on such advertising in Germany is incompatible with the EC Treaty. Such a ban could be justified if the Court of justice ruled that it pursued recognised public interest objectives (such as the protection of consumers), was indiscriminately applied and proportional in meeting its objective.

To date the Commission has not received complaints on this issue which is repeated across many borders in the field of the regulated professions. However, if called to do so by the professions or the Parliament, it could seek to resolve such restrictions to the free movement of commercial communication services by raising them before the expert group on commercial communications consisting of Member States' representatives which it has recently established. Through this structure of administrative co-operation the Commission is trying to encourage Member States to apply mutual recognition in such fields either by altering their national laws or by identifying areas requiring harmonisation.

The negative effects of such cross-border restrictions are particularly acute and require urgent attention in the field of electronic commerce where professional practitioners in certain Member States are finding that the advertising they undertake on their information world wide web sites which is legal in their own country could make them subject to court action or action by other professional bodies in other Member States. Given that the internet is de facto a cross-border medium they cannot avoid this problem when launching such services.

The urgency of this specific aspect of the problem raised by the Honourable Member and the fact that the Commission is currently preparing a text on the regulatory framework for electronic commerce explains why certain professional bodies have suggested that this issue be addressed in this text.

(1) COM(98) 121 final.