Brussels, 05/04/2011 (Agence Europe) - Any national rules banning qualified accountants from canvassing for work infringes the EU Services Directive (2006/123/EC) and restricts the freedom to provide services in more than one country, ruled the European Court of Justice in Case C-119/09 on Tuesday 5 April 2011.
The European Court of Justice was answering a question raised by the French state about whether the Services Directive prevents any general ban on accountants, irrespective of the type of trade practice in question, or whether it allows member states to ban certain practices, like canvassing for work.
On the first aspect of the question, the Court of Justice says that the directive requires the removal of barriers to the freedom of establishment such as total prohibitions of any form of commercial communication by the regulated professions2 promoting an undertaking's goods, services or image, whether directly or indirectly (publicity, direct marketing, sponsorship and the like) and professional bans on using the media to provide information about accountants and their services. Member states are, however, free to ban certain content or type of marketing by regulated professions “provided that the rules laid down are justified and proportionate for the purposes of ensuring the independence, dignity and integrity of the profession, as well as professional secrecy”.
On the concept of canvassing and whether it constitutes “commercial communication” which, under the directive, a member state may not prohibit generally and absolutely, the Court of Justice says that given the lack of any legal definition of canvassing, it can be described as “direct marketing” and therefore a “commercial communication” as understood by the directive.
Consequently, the ban in France on accountants canvassing for work can be viewed as a total ban on “commercial communication” and therefore infringes the Services Directive. The French ban is also a restriction on the freedom to provide cross-border services because it is an obstacle for accountants in other member states to making themselves known and offering their services in France. (F.G./transl.fl)