Austria: Medical Meets Beauty

Based on the Austrian Act on Dentists¹ the Chamber of Dentists has issued a (re-strictive) Directive on Advertising². Amongst others the directive limits the size of advertisements in print media to the quarter of a page. Dentists must not make unobjective advertising, which is defined (amongst others) by promising to patients advantages or services which are in no connection with the dental services. The reserved section for the dental profession according to the Act on Dentists comprises not only the treatment and cure of dental diseases but also the performance of cosmetic and aesthetic intervention on teeth insofar such intervention requires a dental examination and diagnosis.

Facts

The Chamber of Dentists sued a dentist and a company with limited liability in which he was majority shareholder for cease and desist. The dentist and the company had run an advertisement in a publication under the (English) title "Medical meets Beauty" in which both dental care and various cosmetic treatments were advertised. The advertisement was a full page and also advertised cosmetic teeth bleaching.

First instance and second instance decision

The first instance³ granted the requested interim injunction on the basis that an advertisement in print media must not exceed the quarter of a page. The advertisement of the defendants covered a whole page. Even considering a spacial separation in colour between the services of the first defendant (dentist) and the second defendant (his company), the size was exceeded, because in this case either of the defendants advertised on half a page. Moreover, according to the court the services offered in the advertisement (facial and body treatments) infringed Article 1 and 2 of the Directive on Advertising.

Finally, according to the court cosmetic bleaching (although without peroxide) implies a photochemical reaction in the dentine. This requires dental examination and diagnosis reserved for dentists. The second defendant is not a dentist (or a dental clinic).

The decision was confirmed by the Appellate Court.⁴

Supreme Court Decision

The Supreme Court upheld the decisions of the lower instances.⁵ The court con-firmed that the advertising restrictions imposed by the directive are in compliance with the law of the European Union. The decision Luc Vanderborght⁶ referred to by the appellants concerned the general prohibition of advertising for physicians, whereas the directive only provides for a limited prohibition. Moreover, in Luc Van-derborght the ECJ even considered general prohibitions as reconcilable with EU-law; the ECJ had only concerns in respect of the E-Commerce-Directive and the free movement of services according to Article 56 TFEU.

The headline of the advertisement was "Medical meets Beauty by⁷ [first defendant] and [second defendant]" and contained the slogans "Well-being instead of fear" and "Combination of exclusivity, atmosphere and professionality" advertising a series of dental and cosmetic treatments. Therefore, the appellant's argument that the ad does not advertise dental services in combination with cosmetic services, but only informs on cosmetic services is not conceivable. On this basis the Appellate Court's assessment that the relevant overall impression of the advertisement is an unobjective amalgamation is in line with the Supreme Court's precedents.⁸

According to the Supreme Court's long standing jurisdiction teeth bleaching falls in the scope of the dental reserve even if the applied tooth gel does not contain hydrogen peroxide. This is not opposed by Regulation 1223/2009/EU on Cosmetic Products. Also, the fact that prior to the treatment a medical examination is made is not a sufficient defence. According to the clear wording of sec 24 (2) Act on Dentists the service must be provided under permanent supervision of a dentist. More-over, the offer and the performance of dental services by a non-dentist infringes sec 4 Act on Dentists. The second defendant is a company with limited liability per-forming cosmetic services. The company is not entitled to offer and perform dental services. The performance of dental services by a company is permitted only under certain qualifications, in particular in case of a group practise of dentists. Not per-mitted are single person companies or companies including non-dentists as shareholders. Moreover, the activity of a dentist-company with limited liability has to be limited to the activities reserved for dentists and eventual activities in direct connection with the dental services. The second defendant has two minority shareholders who are no dentists so that the law is infringed even if the second defendant would perform the services only through the first defendant.

Comment

The Austrian professional rules for dentists are very strict and restrictive. They only permit advertising within tight limits. The Chamber of Dentists is very active in en-forcing both the advertising directive and the Act on Dentists.

Footnotes

1. Zahnärztegesetz - ZÄG (BGBl I 126/2005 as amended).

2. www.zahnaerztekammer.at/zahnaerztinnen/infocenter/amtliche-mitteilungen/

3. Regional Court Graz (civil branch), July 20, 2018, 39 Cg 62/18v.

4. Appellate Court Graz, September 4, 2018, 5 R 130/18d.

5. Supreme Court March 26, 2019, 4 Ob 211/18k.

6. European Court of Justice, May 4, 2017, C-339/15.

7. These words were in English in the advertisement.

8. Supreme Court, May 12, 2018, 4 Ob 66/17k.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.