Criminal proceedings against Luc Vanderborght.
Date: 2017-05-04
22


In order to reply to the questions referred, it is necessary first of all to determine whether the advertisements which are the subject of the prohibition at issue in the main proceedings constitute commercial practices within the meaning of Article 2(d) of Directive 2005/29 and are therefore subject to the rules laid down by that directive (see, by analogy, judgment of 9 November 2010, Mediaprint Zeitungs- und Zeitschriftenverlag, C‑540/08, EU:C:2010:660, paragraph 16).
23


It must be recalled that Article 2(d) of that directive gives a particularly wide definition to the concept of ‘commercial 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’ (judgment of 9 November 2010, Mediaprint Zeitungs- und Zeitschriftenverlag, C‑540/08, EU:C:2010:660, paragraph 17).
24


In addition, under Article 2(c) of that directive, the concept of a ‘product’ covers any goods or service.
25


It follows that the advertising of oral and dental care services such as that at issue in the main proceedings, whether through publications in advertising periodicals or on the internet, or through the use of signs, constitutes a ‘commercial practice’, for the purposes of Directive 2005/29.
37


In those circumstances, it must be considered that online advertising may constitute an information society service for the purposes of Directive 2000/31 (see, to that effect, judgment of 15 September 2016, Mc Fadden, C‑484/14, EU:C:2016:689, paragraphs 41 and 42).
53


The Court has consistently held that the Treaty provisions guaranteeing the freedoms of movement cannot be applied to a situation which is confined in all respects within a single Member State (see to that effect, inter alia, judgments of 21 October 1999, Jägerskiöld, C‑97/98, EU:C:1999:515, paragraph 42, and of 11 July 2002, Carpenter, C‑60/00, EU:C:2002:434, paragraph 28).
56


The Court has already held that the fact that a number of the patients are EU citizens coming from other Member States could constitute a cross-border element involving the application of the Treaty provisions guaranteeing the freedoms of movement (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraphs 25 and 26).
58


It should be observed that, when a national measure concerns both the freedom of establishment and the freedom to provide services, the Court will in principle examine the measure in dispute 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 (judgment of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 39 and the case-law cited).
60


Since the cross-border element which makes the Treaty provisions guaranteeing the freedoms of movement applicable is constituted by the movement of recipients of services established in another Member State (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 26), it is appropriate to answer the sixth question with reference to Article 56 TFEU.
61


In that regard, it is clear from the Court’s settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom to provide services must be regarded as restrictions of that freedom (see, to that effect, judgments of 17 July 2008, Corporación Dermoestética, C‑500/06, EU:C:2008:421, paragraph 32; of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 45; and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 21).
62


It must also be recalled that, in particular, the concept of ‘restriction’ covers measures taken by a Member State which, although applicable without distinction, affect the free movement of services in other Member States (judgment of 12 September 2013, Konstantinides, C‑475/11
EU:C:2013:542, paragraph 45 and the case-law cited).
65


As regards the justification for such a restriction, national measures which are liable to restrict the exercise of fundamental freedoms guaranteed by the Treaty may be allowed only if they pursue an objective in the public interest, are appropriate for ensuring the attainment of that objective and do not go beyond what is necessary to attain the objective pursued (judgment of 12 September 2013, Konstantinides, C‑475/11, EU:C:2013:542, paragraph 50 and the case-law cited).
67


It must be noted, in that regard, that the protection of the health is one of the objectives which may be regarded as overriding reasons in the public interest capable of justifying a restriction on the freedom to provide services (see, to that effect, judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 46, and of 12 September 2013, Konstantinides, C‑475/11, EU:C:2013:542, paragraph 51).
68


In addition, with regard to the importance of the relationship of trust which must prevail between a dentist and his patient, the protection of the dignity of the profession of dentist may also be regarded as being capable of constituting such an overriding reason in the public interest.
69


The extensive use of advertising or the selection of aggressive promotional messages, even such as to mislead patients as to the care being offered, by damaging the image of the profession of dentist, by distorting the relationship between dentists and their patients, and by promoting the provision of inappropriate and unnecessary care, may undermine the protection of health and compromise the dignity of the profession of dentist.
71


As regards the need for a restriction on the freedom to provide services such as that at issue in the main proceedings, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is, in principle, for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a measure of discretion (see, to that effect, judgments of 2 December 2010, Ker-Optika, C‑108/09, EU:C:2010:725, paragraph 58, and of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 118).
72


It must therefore be found that, notwithstanding that measure of discretion, the restriction resulting from the application of the national legislation at issue in the main proceedings, imposing a general and absolute prohibition of any advertising relating to the provision of oral and dental care services, exceeds what is necessary to attain the objectives pursued by that legislation, as referred to in paragraph 66 above.
75


In those circumstances, it must be held that the objectives pursued by the legislation at issue in the main proceedings could be attained through the use of less restrictive measures supervising, closely if necessary, the form and manner which the communication tools used by dentists may legitimately have, without imposing on them a general and absolute prohibition of any form of advertising.