Case C‑119/09, Société fiduciaire nationale d’expertise comptable

Services Directive precludes total ban canvassing by qualified accountants
This reference for a preliminary ruling concerned the interpretation of Article 24 of the services (Directive 2006/123).

The reference had been made in proceedings between the French Association of Qualified Accountants and the French Minister for the budget in an action for annulment of the Code of professional conduct and ethics of qualified accountants (Decree No 2007-1387).

Société fiduciaire had applied to the Conseil d’État for the annulment of Decree No 2007-1387 in so far as it prohibited canvassing. Société fiduciaire submitted that the general and absolute prohibition on any canvassing under Article 12-I of the Code was contrary to Article 24 of Directive 2006/123 and seriously undermined the implementation of that directive.  

The Court first of all addressed the argument of the French argument that the time-limit for the transposition of Directive 2006/123 (December 28, 2009), had not yet expired on the date of the decision to refer, which was March 4.

The Court has often held that Member States must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C‑129/96 Inter-Environnement Wallonie [1997]; Case C‑14/02 ATRAL [2003]; and Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea [2009]

The Court now held that it was for the referring court before which the main proceedings were pending to assess whether the national provisions whose legality was challenged were liable seriously to compromise the attainment of the result prescribed by a directive.

In making that assessment, the referring court must consider, in particular, whether the provisions in issue purported to constitute full transposition of the directive, as well as determining the effects in practice of applying those incompatible provisions and of their duration in time.   

 The Court held that to establish whether Article 24 of Directive 2006/123, and particularly Article 24(1), proscribed a prohibition on canvassing such as that laid down by the national legislation at issue in the main proceedings, it was necessary to interpret that provision by reference not only to its wording but also to its purpose and context and the objective pursued by the legislation in question.

The Court reiterated that Directive 2006/123 was intended to remove restrictions on the freedom of establishment for providers in Member States and on the free movement of services between the Member States, in order to contribute to the completion of a free and competitive internal market.
According to the Court, it followed from both the purpose and the context of Article 24 that the intention of the EU legislature was not only to put an end to total prohibitions, on the members of a regulated profession, from engaging in commercial communications whatever their form but also to remove bans on one or more forms of commercial communication within the meaning of Article 4(12) of Directive 2006/123, such as, for example, advertising, direct marketing or sponsorship.

However, the Court held that the Member States retained the right to lay down prohibitions relating to the content or methods of commercial communications as regards regulated professions, provided that the rules laid down were justified and proportionate for the purposes of ensuring, in particular, the independence, dignity and integrity of the profession, as well as the professional secrecy necessary in its practice. Commercial communication covered not only traditional advertising but also other forms of advertising and communications of information intended to obtain new clients.

The Court held that canvassing constituted a form of communication of information intended to seek new clients. However, canvassing involved personal contact between the provider and a potential client, in order to offer the latter services. It could, therefore, be classified as direct marketing. Consequently, canvassing came within the concept of ‘commercial communication’, within the meaning of Articles 4(12) and 24 of Directive 2006/123.

The Court held that the French ban on canvassing was of broad conception, in that it prohibited any canvassing, whatever its form, content or means employed. Thus, that ban included a prohibition of all means of communication enabling the carrying out of that form of commercial communication.

It followed that such a ban must be regarded as a total prohibition of commercial communications prohibited by Article 24(1) of Directive 2006/123.