European Commission v Kingdom of Belgium.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:124
• Date: 27 February 2020
• Docket Number: C-384/18
• Celex Number: 62018CJ0384

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

27 February 2020 (*)

(Failure of a Member State to fulfil obligations — Article 49 TFEU — Services in the internal market — Directive 2006/123/EC — Article 25(1) and (2) — Restrictions on multidisciplinary activities of accountants)

In Case C‑384/18,

ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 8 June 2018,

European Commission, represented by H. Tserepa-Lacombe and L. Malferrari, acting as Agents,

applicant,

v

Kingdom of Belgium, represented by L. Van den Broeck, M. Jacobs and C. Pochet, acting as Agents, and by C. Smits and D. Grisay, lawyers, M. Vossen, G. Lievens and F. Haemers,

defendant,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, S. Rodin (Rapporteur), D. Šváby, K. Jürimäe and N. Piçarra, Judges,

Advocate General: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 23 May 2019,

after hearing the Opinion of the Advocate General at the sitting on 10 October 2019,

gives the following

Judgment

1 By its application, the European Commission asks the Court to find that, by prohibiting the exercise of accounting activities in conjunction with the activities of an insurance broker or agent, or of an estate agent, or with any banking or financial services activity, and by permitting the chambers of the Institut Professionnel des Comptables et Fiscalistes Agréés (Professional Institute of Approved Accountants and Tax Consultants; the ‘IPCF’) to prohibit the exercise of accounting activities in conjunction with any artisanal, commercial or agricultural activity, the Kingdom of Belgium has failed to fulfil its obligations under Article 25 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) and Article 49 TFEU.

I. Legal context

A. European Union law

2 Recitals 97 and 101 of Directive 2006/123 state:

‘(97) It is necessary to provide in this Directive for certain rules on high quality of services, ensuring in particular information and transparency requirements. These rules should apply both in cases of cross border provision of services between Member States and in cases of services provided in a Member State by a provider established there, without imposing unnecessary burdens on SMEs. They should not in any way prevent Member States from applying, in conformity with this Directive and other Community law, additional or different quality requirements.

…

(101) It is necessary and in the interest of recipients, in particular consumers, to ensure that it is possible for providers to offer multidisciplinary services and that restrictions in this regard be limited to what is necessary to ensure the impartiality, independence and integrity of the regulated professions. This does not affect restrictions or prohibitions on carrying out particular activities which aim at ensuring independence in cases in which a Member State entrusts a provider with a particular task, notably in the area of urban development, nor should it affect the application of competition rules.’

3 Article 25 of that directive, entitled ‘Multidisciplinary activities’, is worded as follows:

‘1. Member States shall ensure that providers are not made subject to requirements which oblige them to exercise a given specific activity exclusively or which restrict the exercise jointly or in partnership of different activities.

However, the following providers may be made subject to such requirements:

(a) the regulated professions, in so far as is justified in order to guarantee compliance with the rules governing professional ethics and conduct, which vary according to the specific nature of each profession, and is necessary in order to ensure their independence and impartiality;

(b) providers of certification, accreditation, technical monitoring, test or trial services in so far as is justified in order to ensure their independence and impartiality.

2. Where multidisciplinary activities between providers referred to in points (a) and (b) of paragraph 1 are authorised, Member States shall ensure the following:

(a) that conflicts of interest and incompatibilities between certain activities are prevented;

(b) that the independence and impartiality required for certain activities is secured;

(c) that the rules governing professional ethics and conduct for different activities are compatible with one another, especially as regards matters of professional secrecy.

3. In the report referred to in Article 39(1), Member States shall indicate which providers are subject to the requirements laid down in paragraph 1 of this Article, the content of those requirements and the reasons for which they consider them to be justified.’

4 Under recital 10 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015 L 141, p. 73):

‘Directly comparable services should be treated in the same manner when provided by any of the professionals covered by this Directive. In order to ensure respect for the rights guaranteed by the Charter of Fundamental Rights of the European Union (the ‘Charter’), in the case of auditors, external accountants and tax advisors, who, in some Member States, are entitled to defend or represent a client in the context of judicial proceedings or to ascertain a client’s legal position, the information they obtain in the performance of those tasks should not be subject to the reporting obligations laid down in this Directive.’

B. Belgian law

5 Article 21 of the IPCF code of ethics, in the version approved by Royal Decree of 22 October 2013 (Moniteur belge of 21 November 2013, p. 86547; the ‘old IPCF code of ethics’), reads as follows:

‘1. The profession of external IPCF accountant is incompatible with any artisanal, agricultural or commercial activity, whether exercised directly or indirectly, individually or through an association or company, as sole trader or as manager, director, executive officer or active partner.

2. Except for the activities mentioned in paragraph 3, the [professional chambers of the IPCF] may derogate from this rule at the request of an external IPCF accountant, made in advance and in writing, provided that the independence and impartiality of the member are not jeopardised and that the activity in question is ancillary. Such a decision is always capable of being revoked by the chambers.

Furthermore, the Council may always make provision concerning derogations by way of a general directive, in relation to specified activities in the artisanal, agricultural or commercial sector, outside the particular areas referred to in paragraph 3. The Council may also adopt directives under which incompatibilities are temporarily disregarded in cases of business transfer. The external IPCF accountant, who will be subject to Council directives, must inform the chamber in writing.

3. The following professional activities are always regarded as jeopardising the independence and impartiality of the external accountant: those of an insurance broker or agent; those of an estate agent (other than that of a managing agent), and any banking and financial services activities requiring registration with the Autorité des Services et Marchés Financiers (Financial Markets and Services Authority (FSMA).’

6 Article 21 of the IPCF code of ethics, in the version approved by Royal Decree of 18 July 2017 (Moniteur belge of 14 August 2017, p. 79692; the ‘new IPCF code of ethics’), provides:

‘1. Except for the activities referred to in paragraph 2, the exercise of multidisciplinary activities, as a natural person or as a legal person, shall be authorised by the chambers at the written request of an external IPCF accountant, provided that the independence and impartiality of the member are not jeopardised.

2. The following professional activities, whether exercised as a natural person or as a legal person, are always regarded as jeopardising the independence and impartiality of the external IPCF accountant: that of an insurance broker or agent; that of an estate agent (other than that of a managing agent), and any banking and financial services activities requiring registration with the Financial Markets and Services Authority.’

7 Article 458 of the Criminal Code of 8 June 1867 (Moniteur belge of 9 June 1867, p. 3133), in the version in force at the material time (the ‘Belgian Criminal Code’), provides:

‘Medical practitioners, surgeons, health officers, pharmacists, midwives and all other persons who, by virtue of their position or profession, are in receipt of confidential information shall, except where called to give evidence in a court of law or before a Parliamentary commission of enquiry, or where required by law to disclose such information, be punished, in the event of such disclosure, by a term of imprisonment of 8 days to 6 months and a fine of EUR 100 to EUR 500.’

II. Pre-litigation procedure

8 On 17 March 2015, the Commission initiated EU Pilot procedure 7402/15/GROW by asking the Belgian authorities to provide it with information concerning the prohibition on approved accountants combining their activities with certain other activities, and the reasons why activities in the artisanal, agricultural or commercial sector could be regarded as incompatible with the profession of accountant.

9 The Kingdom of Belgium responded to the Commission’s questions by letter of 29 May 2015.

10 Since it found that the justifications given for the restrictions laid down by national law...