C-305/05, Ordre des barreaux francophones and germanophone

>> Obligation on lawyers to inform authorities of indication of money laundering not inconsistent with right to fair trial

Is it consistent with Community law and with the fundamental principles which it guarantees to impose on lawyers, as was provided for by Directive 2001/97 amending Directive 91/308, the obligation to inform the competent authorities of any fact of which they were aware which might be an indication of money laundering?

This question was referred to the Court in the context of actions brought by the Ordre des barreaux francophones et germanophone, the Ordre français des avocats du barreau de Bruxelles, the Ordre des barreaux flamands and by the Ordre néerlandais des avocats du barreau de Bruxelles, seeking the annulment of certain provisions of a Belgian Law transposing Directive 2001/97 into the national legal system.

Article 6(1) of that directive provides that the persons covered by the directive must cooperate fully with the authorities responsible for combating money laundering. They are obliged to inform those authorities, on their own initiative, of any fact which might be indicative of money laundering and by furnishing those authorities, at the request of the latter, with all necessary information, in accordance with the procedures established by the applicable legislation.

However, as regards lawyers, Directive 91/308 delimits the application of those obligations of information and cooperation in two ways.

First, under Article 2a(5), lawyers are subject to the obligations laid down in that directive – and, in particular, to the obligations of information and cooperation laid down in Article 6(1) thereof – only in so far as they participate, in the ways specified in Article 2a(5), in certain transactions listed exhaustively in that provision.

Secondly, Article 6(3) of the directive provides that the Member States are not obliged to impose the obligations of information and cooperation on lawyers as regards information which they have received from a client in the course of ascertaining the client’s legal position or in the course of performing their task of defending or representing that client in judicial proceedings.

The Court stated that Article 6(3) of Directive 91/308 might lend itself to several interpretations, and consequently the precise extent of the obligations of information and cooperation incumbent on lawyers was not entirely unambiguous.

It reiterated that if the wording of secondary Community law was open to more than one interpretation, preference should be given to the interpretation which rendered the provision consistent with the EC Treaty rather than to the interpretation which led to its being incompatible with the Treaty (see
Case 218/82 Commission v Council [1983] and Case C‑135/93 Spain v Commission [1995]).

The Court held that Member States must not only interpret their national law in a manner consistent with Community law but also make sure they did not rely on an interpretation of wording of secondary legislation which would be in conflict with the fundamental rights protected by the Community legal order or with the other general principles of Community law (
Case C‑101/01 Lindqvist [2003]).

According to the Court, lawyers would be unable to carry out satisfactorily their task of advising, defending and representing their clients, who would in consequence be deprived of the rights conferred on them by Article 6 of the ECHR, if lawyers were obliged, in the context of judicial proceedings or the preparation for such proceedings, to cooperate with the authorities by passing them information obtained in the course of related legal consultations.

The Court held that the requirements implied by the right to a fair trial presupposed, by definition, a link with judicial proceedings. In view of the fact that the second subparagraph of Article 6(3) of Directive 91/308 exempted lawyers, where their activities were characterised by such a link, from the obligations of information and cooperation laid down in Article 6(1) of the directive, those requirements were respected.

The Court thus concluded that the obligations of information and of cooperation with the authorities responsible for combating money laundering, account being taken of the aforementioned limitations, did not infringe the right to a fair trial as guaranteed by Article 6 of the ECHR and Article 6(2) EU.

Text of judgment