Brussels, 18/05/2010 (Agence Europe) - In his opinion in case C-119/09, the Advocate General said on Tuesday 18 May that European Parliament and Council directive 2006/123/EC of 12 December 2006, on services in the internal market, does not preclude member states keeping in place restrictions on certain commercial practices by regulated professions, in this instance, direct marketing by chartered accountants. However, the rules put in place by member states to ban or restrict such practices must be non-discriminatory and be justified by over-riding reasons of general interest, such as the independence, dignity or integrity of the profession or professional secrecy.
Thus, he proposes that the Court consider that, given that direct marketing is a specific way of conducting one of the forms of commercial communication - advertising - Article 24§1 of European Parliament and Council directive 2006/123/EC on services in the internal market should be seen as not precluding a member state's regulation, such as the one challenged in this case, preventing chartered accountants from cold-calling potential clients offering their services, insofar that the regulation is non-discriminatory, justified by one of the over-riding reasons relating to the public interest set out as examples in Article 25§2 of the above directive, and proportionate.
In this case, Fiducial (Société fiduciaire d'expertise comptable, a multi-disciplinary chartered accountancy organisation) lodged a request with the French Council of State (Conseil d'Etat) for the annulment the 2007 decree which establishes a code of ethics for chartered accountants which bans direct marketing. Fiducial took the view that the decree at issue ran counter to directive 2006/123/EC on services, since the directive required member states to remove total bans on commercial communication promoting, directly or indirectly, goods, services or the image of regulated commercial firms, which include chartered accountants.
The Council of State was unsure whether the French regulation was compatible with EU law and asked the Court of Justice how this ban on commercial communication might be reconciled with the other provisions in the directive which leave open to member states the possibility of retaining the ban on certain commercial practices, such as direct marketing.
If the Court, in its ruling, agrees with the Advocate General, member states will be able to keep in place bans on these kinds of practices as long as the bans are justified by over-riding reasons of general interest and proportionate with the objectives sought. (F.G./transl.rt)