CONSEIL D’ETAT
N°296845,296907
REPUBLIQUE FRANÇAISE
AU NOM DU PEUPLE FRANCAIS
--CONSEIL NATIONAL
DES BARREAUX et autres
--Melle Aurélie Bretonneau
Rapporteur
--M. Mattias Guyomar
Commissaire du gouvernement
--Séance du 28 mars 2008
Lecture du 10 avril 2008
--(Translation into English
of key passages)
(…)
Having regard to the action brought before the Council of State by the Conseil national des
Barreaux and other plaintiffs;
Having regard to the European Convention for the protection of Human Rights and
Fundamental Freedoms (ECHR);
Having regard to the Treaty establishing the European Community;
Having regard to Directive 91/308/EEC of 10 June 1991 as amended by Directive
2001/97/EC of 4 December 2001;
Having regard to the Monetary and Financial code;
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Having regard to the “Limburgs Vinyl Maatschappig” judgment issued by the Court of Justice
of the European Communities on 15 october 2002;
Having regard to the “Ordre des barreaux francophones et germanophones et autres”
judgment issued by the Court of Justice of the European Communities on 26 June 2007;
Having regard to the Administrative Justice code;
(…)
As for the relevant applicable law:
Whereas Directive 2001/97/EC of 4 December 2001 has amended Directive 91/308/EEC of
10 June 1991 on prevention of the use of the financial system for the purpose of money
laundering particularly in order to extend to a limited number of activities and professions the
obligations it lays down with respect to identifying clients, keeping data and reporting
suspicious transactions; it has included within its scope of application notaries and
independent legal professionals, when they take part to certain transactions; in this respect, it
has introduced in the Directive adopted on 10 June 1991 an article 2a according to which “
Member States shall ensure that the obligations laid down in this Directive are imposed on
the following institutions: (…) 5° notaries and other independent legal professionals, when
they participate, whether (a) by assisting in the planning or execution of transactions fort
their client concerning the (i) buying and selling of real property or business entities; (ii)
managing of client money, securities and other assets; (iii) opening or management of bank,
savings or securities accounts; (iv) organisation of contributions necessary for the creation,
operation or management of companies; (v) creation, operation or management of trusts,
companies or similar structures; (b) or by acting on behalf of and for their client in any
financial or real estate transaction; according to Article 6 of the Directive, in its new
wording: “ 1. Member States shall ensure that the institutions and persons subject to this
Directive and their directors and employees cooperate fully with the authorities responsible
for combating money laundering: (a) by informing those authorities, on their own initiative,
of any fact which might be an indication of money laundering; (b) by furnishing those
authorities, at their request, with all necessary information, in accordance with the
procedures established by the applicable legislation (…); 3. (…) Member States shall not be
obliged to apply the obligations laid down in paragraph 1 to notaries, independent legal
professionals, auditors, external accountants and tax advisors with regard to information they
receive from or obtain on one of their clients, in the course of ascertaining the legal position
for their client or performing their task of defending or representing that client in, or
concerning judicial proceedings, including advise on instituting or avoiding proceedings,
whether such information is received or obtained before, during or after such proceedings”;
finally, according to the provisions of whereas n°17 of the Directive: “(…) There must be
exemptions from any obligation to report information obtained either before, during or after
judicial proceedings, or in the course of ascertaining the legal position for the client. Thus,
legal advice remains subject to the obligation of professional secrecy unless the legal
counsellor is taking part in money laundering purposes, or the lawyer knows that the client is
seeking legal advice for money laundering purposes”;
Whereas the Act of 11 February 2004 amending the status of certain legal professions,
judicial experts, experts in industrial property and experts in auctions, was partly aimed at
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transposing the Directive of 4 December 2001; that the provisions of the Decree of 26 June
2006 lay down the legal conditions with respect to combating money laundering that must
fulfil the professionals falling within its scope of application, as defined by the Directive of 4
December 2001 and the Act of 11 February 2004;
On the legal framework of the case:
Whereas the plaintiffs raise a plea in law according to which the Directive of 4 December
2001 and the Act of 11 February 2004 aimed at transposing it infringe Articles 6 and 8 of the
ECHR and also infringe general principles of European community law;
Whereas (…) according both to Article 6§2 of the Treaty of the European Union and to the
case-law developed by the Court of Justice of the European Communities and its
abovementioned judgment delivered on 15 October 2002 in particular, the fundamental rights
guaranteed by the ECHR are being protected as fundamental principles of Community law;
that the administrative judge must accordingly, when he has to settle a case raising the issue
of whether a Directive is or is not compatible with the provisions of the ECHR, determine
whether such Directive is consistent or not with the fundamental rights guaranteed by these
provisions; that he must either dismiss such a plea raised before him in the absence of any
strong doubt, or submit a question to the Court of Justice of the European Communities
applying Article 234 of the Treaty establishing the European Community;
(…)
Whereas according to the interpretation of the Directive of 4 December 2001 given by the
judgment of 26 June 2007 “Ordre des Barreaux francophones et germanophones et autres” the
Court of Justice of the European Communities, answering a question submitted by the
Arbitration Court of Belgium, the provisions of its Article 6 (…) allow in some cases Member
States not to impose on lawyers the obligations of information and cooperation they define,
must be interpreted, in the light of Whereas n°17 of such Directive and in order to give of this
text an interpretation consistent with the fundamental rights guaranteed by the ECHR, as
forbidding to impose such obligations in the abovementioned cases;
(…)
Whereas, without having to submit any question to the Court of Justice of the European
Communities, the plea challenging the lawfulness of Directive of 4 December 2001 must be
rejected;
(…)
As for Article R 562-2 of the Financial and Monetary code:
Whereas according to paragraph 3 of Article R562-2 of the Financial and Monetary
code(…):” Without prejudice of the provisions of paragraph 2 of Article R562-2-2, auditors,
external accountants, notaries (…) lawyers (…) must on an individual basis answer the
questions submitted by the TRACFIN agency (…)”; however according to the provisions of
Article L 562-1 in the abovementioned interpretation, persons falling under the scope of
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article 12 of this Article are submitted to compulsory reporting of suspicious transactions only
within the limits introduced by paragraphs 8 and 9 of Article L562-2-1, according to which a
system of filter has been introduced through (…) the chairman of the Bar association where
the lawyer is registered (…); therefore the plaintiffs are right to state that by imposing a direct
relationship between these professionals and the TRACFIN agency, the abovementioned
decree is unlawful and should be annulled;
(…)
As for Article R563-4 of the Financial and Monetary code:
Whereas according to Article R563-4 of the Financial and Monetary code:” The persons
mentioned in Article L562-1 point 12 must implement the provisions included in this chapter
only if, while exercising non-judicial activities, they fulfil in the name of their client any
financial or real estate transaction, or if they take part while assisting their client in planning
or realizing transactions concerning: 1° Buying and selling of real property or business
entities; 2° Managing client money, securities and other assets; 3° Opening or managing
bank, savings or securities accounts; 4° Organizing contributions necessary for the creation,
operation or management of companies; 5° Creating, operating or managing trusts, companies
or similar structures (…);
Whereas the plaintiffs argue that article R563-4 introduced by Article 2 of the decree is
unlawful because it does not include any derogation to the obligations laid down by Chapter
III for the benefit of persons mentioned in Article L562-1, as for the information they collect
while acting as legal consultants, without prejudice of the case when such a person actually
takes part in money laundering, when the legal advice is delivered in order to facilitate the
money laundering operation, and when that person knows that his/her client wishes to get
advice for this purpose;
Whereas, as mentioned above, (the Act of 11 February 2004) has imposed the obligations laid
down in its chapter III on the persons mentioned in Article L562-1 point 12 only within the
limits specified in Article L562-2-1; thus by limiting itself to the derogations specific to
judicial procedures without mentioning those applying to legal consulting, Article R563-4 has
infringed such legal provisions; the plaintiffs can therefore also successfully argue that it
should be annulled;
(…)
DECIDES
Article 1: (Procedural matter)
Article 2: Article 1 of the Decree of 26 June 2006 on combating money laundering and
amending the Monetary and Financial code is annulled insofar as it introduces in Article
R562-2 of this code provisions laying down a direct relationship between the persons
specified in point 12 of Article L562-1 and the TRACFIN agency when these persons reply to
questions submitted by this agency.
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Article 3: Article 2-III of the Decree of 26 June 2006 on combating money laundering and
amending the Monetary and Financial code, which includes an Article R563-4 recalling the
obligations laid down by chapter III on the persons specified in point 12 of Article L562-1 is
annulled insofar as it does not include explicit reference to the limits applying to the
information that these persons detain or obtain while they provide legal consulting.
Article 4: (Procedural matter)
Article 5: All other pleas in law submitted by the Conseil national des Barreaux and other
plaintiffs are rejected.
Article 6: (Procedural matter)
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