The Court of Justice of the European Union, in a Judgement dated 5 April 2011, ruled over a question referred by the French Conseil d'État regarding the general prohibition to engage in canvassing for regulated professions, as regards to the application of the Services Directive. The Court considers that such prohibition, which in this particular case affected qualifies accountants, in relation to canvassing can be considered a total prohibition of commercial communications in conflict with the Directive.

The Judgement from the Court of Justice of the European Union in the case C-119/09, reffered to the question put forwrad by the French Conseil d'État regarding the compliance with EU law of the rule of the French Code of professional conduct and ethics of qualified accountants which forbids them to engage in any ‘canvassing’. According to such Code, these professionals cannot engage any unsolicited contact with third parties with a view to offering their services and their participation in symposiums, seminars or other academic or scientific events is allowed provided they do not, on such occasions, engage in acts comparable to canvassing.

In its Judgement, the Court considers that in adopting the Directive 2006/123 on services in the internal market the EU legislature intended in the first place to put an end to total prohibitions on the members of a regulated profession from engaging in commercial communications whatever their form. It also intended to remove prohibitions on one or more forms of commercial communication, such as, for example, advertising, direct marketing or sponsorship. Professional rules forbidding the communication, in one or more given media, of information on providers or their activities must also be regarded as total prohibitions proscribed by the directive.

Based on this reasoning, the Court considers that Member States can however retain 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 are justified and proportionate for the purposes of ensuring the independence, dignity and integrity of the profession, as well as professional secrecy.

Clarifying the concept of 'canvassing' within the EU Service Directive

Since there is no definition in European Union law of the concept of ‘canvassing’, the Court interprets it as a form of communication of information intended to seek new clients which involves personal contact between the provider and a potential client, in order to offer the latter services. Therefore, 'canvassing' can be considered as a way of direct marketing and constitute commercial communication within the meaning of the directive.

In relation to the case, the Court ruled that the prohibition on any canvassing by qualified accountants can be regarded as a total prohibition of commercial communications prohibited by Services Directive. Such prohibition can be therefore regarded as a total prohibition on commercial communications and constitute a restriction on the freedom to provide cross-border services. This kind of prohibitions could affect professionals from other Member States by depriving them of an effective means of penetrating the French market, acting as barriers towards the implementation of a real EU Single Market for services.