EHRM, 06-12-2012, nr. 12323/11

Noting that the Government did not dispute that Article 8 of the Convention protected legal professional privilege, the applicant maintained that the interference he complained of was not ‘in accordance with the law’ within the meaning of that provision. He submitted that the regulations in question were unclear: they required lawyers to report ‘suspicions’ without defining that term; the scope of the ‘activities’ to which they applied was vague and it was difficult for a lawyer to segment or compartmentalise his activities into those which were concerned and those which were not. He added that the confidentiality of lawyer-client relations was indivisible: the law governing the legal professions specified that it applied both to defence and to advisory activities and concerned all the activities of lawyers and the files they dealt with.

The applicant did not dispute that the interference in issue pursued one of the legitimate aims set out in the second paragraph of Article 8. He did consider, however, that it was not ‘necessary in a democratic society’ in order to achieve that aim.

The applicant considered that the presumption of equivalent protection established in the Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC] judgment (no. 45036/98, ECHR 2005-VI) was not applicable.

He considered that his case differed from Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi and other cases where the Court had accepted that European Union membership afforded equivalent protection, in so far as those cases concerned the implementation of a Regulation by a member State, not of a Directive. With Regulations, he argued, the member States had no margin of appreciation, whereas in implementing Directives they did. He also emphasised that, unlike the Convention system of human rights protection, the positive law of the European Union made no provision for individuals to be able to apply directly to the Luxembourg Court.

More specifically, the machinery of Community law had not permitted the specific examination of the complaint under Article 8 of the Convention which the applicant had lodged with the Court. Firstly because the Conseil d'Etat had rejected his request to refer the matter to the Court of Justice for a preliminary ruling. And secondly, because in Ordre des barreaux francophones et germanophone and Others v. Conseil des Ministres that court had examined the issue only from the point of view of the right to a fair trial. This, he argued, showed that the European Union system did not afford scrutiny and protection equivalent to that offered by the Convention.

The applicant considered that when examining the question of ‘necessity’ it was necessary to take into account the role played by lawyers — the specificity of which the Court had highlighted in the context of Article 10 of the Convention — as well as the importance of confidentiality in the practice of their profession, which was what protected the confidence that existed between them and their clients, as well as individual freedom and the smooth functioning of justice. In his opinion requiring lawyers to report their suspicions was asking them to take action that was in contradiction with the social purpose of their profession and shed doubt on the traditional role they played.

He further pointed out that while the Court had built its case-law protecting the professional confidentiality of lawyers on Article 8 of the Convention, it had also deemed it to be covered by Article 6 § 1. He laid particular emphasis on the link between confidentiality and the right of the accused persons they defend not to incriminate themselves, which the Court itself had highlighted in the André judgment, cited above. He added that to require lawyers to report their suspicions meant that they were expected to divulge personal information about their clients — which fell within the scope of Article 8 —, and that prohibiting them from informing the person they were reporting deprived that person not only of the right to receive information but also of the possibility of correcting it or having it deleted if the suspicion proved to be unfounded. The obligation would thus have repercussions on the fundamental rights of others.

The applicant did not deny the need to combat money laundering, but he did consider that it was disproportionate, in pursuit of that aim, preventively to oblige lawyers to report any suspicions regarding their clients' activities to a financial intelligence unit (Tracfin), thereby practising what one might call ‘self-incrimination by proxy’ and breaching their duty of confidentiality.

According to the applicant the obligation to report made lawyers contributors to a financial and fiscal data centralisation unit, which was a departure from the averred legitimate aim. He had reached that conclusion after observing that 98% of the nominal information lawyers were obliged to report was used for that purpose rather than to prevent crime. He referred in this connection to the statistics published by the FIU (Tracfin), which revealed, for example, that in 2010 Tracfin had received 20,252 reports, including 19,208 reports of suspicions submitted by the legal profession, that only 5,132 of these — that is, 25% — had been examined in detail and that in the end only 404 (no more than a quarter of which concerned suspicions of money laundering) had been forwarded to the judicial system for follow-up; the others had been dealt with in the form of notes for the intelligence services, the tax authorities and the police. The information thus gathered was transmitted, recorded and held by an administrative department answering to the Ministry of Finance and it was not known what use was made of it. These figures also showed how inefficient the system was, as only 404 out of 19,208 reports had found their way into the justice system; lawyer-client privilege was thus being sacrificed to very little effect in terms of the prevention of money laundering.

According to the applicant the interference was all the more disproportionate in that there were alternative ways of combating terrorism and money laundering which were more effective and impinged less upon people's fundamental rights. In asking the member States to ‘ensure’ that money laundering was prohibited, Article 2 of Directive 2001/97/EC allowed them to have recourse to a whole range of methods which were proportionate and tailored to the situation of each of the professions concerned. Obliging lawyers to report suspicions was clearly unnecessary when they were already subject to the criminal legislation prohibiting money laundering, to strict legal obligations and to close financial scrutiny. French criminal law severely punished money laundering and a lawyer could be charged with aiding and abetting if he neglected to dissuade a client from engaging in a dubious financial transaction, and cash transactions were prohibited in the profession.

The applicant also considered the obligation to report suspicions incompatible with the lawyer's duty of loyalty to his clients, enshrined in the ‘basic principles on the role of lawyers’ adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990, and Recommendation Rec(2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer, of 25 October 2000. It was alien to the very role and aim of the lawyer, and undermined the relationship of trust between lawyer and client.

Lastly, the applicant pointed out that the positive law of certain European Union countries (Italy, Estonia, Belgium, the Netherlands and Ireland) and Switzerland protected professional confidentiality better than French law, and in Canada and the United States Lawyers were bound by no such obligation to report suspicions.

The Government accepted that Article 8 of the Convention protected legal professional privilege. They submitted, however, that there had been no ‘interference’ by the authorities with the applicant's right to respect for his private life, home or correspondence within the meaning of the second paragraph of that provision, as he did not complain of any concrete event that had affected him personally.

Even assuming that there had been interference, the Government submitted that it was ‘in accordance with the law’, namely, the decision of the National Bar Council, adopted in application of the regulatory provisions of the Monetary and Financial Code contained in the Decree of 26 June 2006, which was itself issued in application of the Law of 11 February 2004 transposing Directive 2001/97/EC amending Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money laundering.

They further submitted that French law was sufficiently clear for there to have been no infringement of the principle of legal certainty. In particular, the notion of reporting ‘suspicions’ was unambiguous: the suspicions could concern the identity of the client or the beneficiary of the operation, the origin of the funds, the unusual or complex nature of the transaction or its purpose; under Article L. 561-15 of the Monetary and Financial Code suspicions had to be reported when the professional knew, based on clear, objective information, that the funds were the proceeds of crime, or when the characteristics of the operation or the lack of details or missing information he was unable to obtain gave rise to suspicions of money laundering and constituted reasonable grounds to doubt the legitimate origin of the funds. In addition, Article D. 561-32-1 of the Monetary and Financial Code laid down the reference criteria that should trigger reports of suspicions of tax fraud — the use of front companies, for example — because they were an indication of dubious practices. As to the notion of ‘legal advice’, the Government considered that no lawyer could seriously be unaware of its meaning, especially as it was clearly defined in both legal theory and case-law as well as by the General Assembly of the Bar Council (which, in a resolution adopted on 18 June 2011, defined it as ‘a personalised intellectual service consisting, on a given question, of offering an opinion or advice on the application of a rule of law with a view, for example, to the taking of a decision’). Referring, among other authorities, to the Cantoni v. France judgment (15 November 1996, Reports of Judgments and Decisions 1996-V), they also argued that in evaluating the foreseeability of the legal provisions in question, it should be borne in mind that the regulations concerned were aimed at the legal profession.

The Government added that, intended as it was to combat money laundering and related crime, the interference pursued one of the legitimate aims set out in the second paragraph of Article 8, namely the prevention of disorder and crime.

They also considered that the presumption of equivalent protection did apply.

First of all because by subjecting lawyers to the obligations of due diligence and the reporting of suspicions in the context of their activities covered by Directive 91/108/EEC of the Council and Directive 2001/97/EC of the European Parliament and of the Council the French lawmakers had simply been complying with their obligations under the law of the European Union; their leeway in the matter was limited to certain practical arrangements, such as attributing a ‘filtering’ role to the profession's self-regulating bodies.

Secondly, there was nothing to rebut that presumption in the present case. The Government pointed out that the explanations given in the Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi judgment concerning the respecting of fundamental rights by Community law still applied, and Article 6 § 3 of the Treaty on European Union specifically made reference to the Convention in the legal system of the European Union. In that judgment, the Government submitted, the Court had, in abstracto, issued the Community human rights protection system with a ‘certificate of conventionality’, in terms of both its substantive and its procedural guarantees. They further submitted that professional confidentiality was given specific protection under European Union law, referring in that regard to the AM & S Europe Limited v. Commission judgment of 18 May 1982, in which the Court of Justice had noted that ‘there are to be found in the national laws of the member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purposes and in the interests of the client's right of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment’. The Government added that in his conclusions in the case of Ordre des barreaux francophones et germanophone and Others v. Conseil des Ministres, the Advocate General, Miguel Poiares Maduro, had explained that, interpreted in the light of its recital 17, Directive 91/108/EEC as amended respected professional confidentiality for the purposes not only of Article 6 but also of Article 8 of the Convention.

Even if the Court were nevertheless to decide that it was necessary to examine whether the interference was necessary, the Government pointed out that both the principle of subjecting lawyers to obligations in respect of the effort to prevent money laundering and the list of activities covered and the exceptions thereto were the exact transposition of European Union law, which reflected the FATF recommendations. They added, referring specifically to money laundering, that the Court itself had found in the André judgment cited above that the Convention did not rule out imposing certain obligations on lawyers in their relations with their clients, provided that such measures were subject to strict scrutiny.

They also affirmed that the obligations of due diligence and cooperation concerned only those activities that were listed, which, as the Court of Justice had found in its judgment of 26 June 2007, were generally carried out, because of their very nature, in a context unrelated to any judicial proceedings. Lawyers were not affected in their activities linked to judicial proceedings or when consulted for ‘legal advice’. The only cases where this exception did not apply were where the legal counsellor himself was taking part in money laundering activities, the legal advice was provided for money laundering purposes, or the lawyer knew that the client was seeking legal advice for money laundering purposes.

The Government also highlighted the ‘maximum procedural guarantees’ provided, emphasising that French law had made use of the possibility afforded by Article 6 § 3 of Directive 91/308/EEC, as amended, of making the self-regulatory bodies of the legal profession serve as a ‘filter’ between the reporting lawyer and the authorities, entrusting that role to the chairman of the Bar: if the chairman considered that there was no suspicion of money laundering, he would not pass on the information; the same applied if it appeared that the information reported had been received in the course of activities excluded from the scope of the obligations of due diligence and cooperation. Only a small number of other European Union member States had taken up that option (the Czech Republic, Spain, Denmark and Portugal), so French law was among the most protective of legal professional privilege in the European Union.

In addition, data storage was limited in time (10 years at most when the information had not been transmitted to the judicial system), the information collected by Tracfin was confidential, its disclosure was strictly controlled by the law and any failure to comply was punishable under Article 226-13 of the Criminal Code.

Lastly, the Government pointed out that lawyers were in any event bound by a general duty of caution under Article 1.5 of the national rules and regulations governing the legal profession, which was inherent in the lawyer's profession and pre-dated the anti-money-laundering regulations.

The CCBE considered that the essential values of the legal profession were seriously threatened by the anti-money-laundering Directives and the laws passed by the member States to transpose them, which it deemed undermined the independence of lawyers, professional secrecy and people's right to respect for their private life.

It submitted that lawyers' activities were indivisible and that the distinction between those activities relating to expert advice — which were excluded from the obligation to report suspicions — and the others was a source of legal uncertainty, as people believing that lawyers were bound by a duty of confidentiality might inadvertently incriminate themselves. That uncertainty, combined with the fact that lawyers were required to report ‘suspicions’ rather than actual offences, was incompatible with the confidentiality of exchanges between client and lawyer and the clients' right to respect for their private life, as protected by Article 8 of the Convention. The lawyer became a de facto‘agent of the State’, entering into a conflict of interest with his clients. Yet this approach was not essential to the anti-money-laundering effort, as demonstrated by the fact that in Canada and the United States lawyers were not obliged to report suspicious transactions.

According to the CCBE, the regulations in question were incompatible with European privacy protection standards in that they restricted the principle of confidentiality with their ‘obscure and vague wording’, which failed to define the ‘legal advice’ activities to which the obligation to report did not apply. In exposing lawyers to such uncertainties, subject to disciplinary sanctions and even disbarment, they also undermined the independence of the legal profession.

The CCBE referred to the ‘Code of Conduct for lawyers in the European Union’ and the ‘Charter of core principles of the European legal profession’, drafted under its own aegis, and to the above-mentioned ‘basic principles on the role of lawyers’, which stressed the importance of preserving the independence of the legal profession and protecting legal professional secrecy and the confidentiality of exchanges between lawyers and their clients.

It pointed out that the Court's case-law acknowledged the fundamental nature of professional confidentiality for lawyers. Moreover, in the AM & S Europe Limited v. Commission judgment of 18 May 1982 (155/79), the Court of Justice of the European Union had established the principle of the confidentiality of lawyer-client exchanges and, indirectly, the principle of legal professional privilege, and had gone on to specify in the Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission judgment of 14 September 2010 (C-550/07 P.) that legal professional privilege was based on the principle that the lawyer was independent. According to the CCBE, the Luxembourg Court's approach to the independence of the legal profession, which it justified largely by reference to the professional discipline inherent in the job, made it difficult to see the point of a law requiring lawyers to report suspicions.

Lastly, the CCBE pointed out that the Bosphorus presumption could be rebutted where European Union law left the States a margin of appreciation with regard to its implementation, as illustrated by the M.S.S. v. Belgium and Greece [GC] judgment (no. 30696/09, ECHR 2011), and that was indeed the case in respect of the Directives in issue in the present case.

According to the French-speaking Bar Council of Brussels, the fact that legal professional privilege was guaranteed by Articles 6 and 8 of the Convention was undeniable.

Article 8 protected the lawyer's office, home, correspondence, computer equipment and telephone lines as well as the confidentiality of his relations with his clients and his professional privilege. It was part of the respect for private life to which the lawyer was entitled — which included his professional activities — and to which his clients were also entitled, and in addition, clients could rely on the confidentiality of their exchanges with their lawyer on the basis of their right to a fair trial. On this last point, highlighting the fundamental role played by lawyers in a democratic society governed by the rule of law, the Bar Council pointed out that the confidentiality of the lawyer's work also had its basis in the need for the lawyer's clients to be able to trust that any secrets they confided in their lawyer would not be disclosed to a third party.

In M.S. v. Sweden (27 August 1997, Reports 1997-IV), a case concerning medical secrecy, the Court had found that respecting the confidentiality of health data was a vital principle in the legal systems of all the Contracting Parties to the Convention. It was crucial not only in order to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The French-speaking Bar Council submitted that this approach also applied, mutatis mutandis, to exchanges between lawyers and their clients.

It further submitted that legal professional privilege was also acknowledged by the positive law of the European Union; it referred in this connection to the AM & S Europe Limited judgment cited above and, in particular, to the conclusions of the Advocate General in the Ordre des barreaux francophones et germanophone and Others case, also cited above.

Moreover, along similar lines to the judgments of the French Conseil d'Etat of 10 April 2008 and 23 July 2010 cited above, the Constitutional Court of Belgium held in a judgment of 23 January 2008 (no. 10/2008) that legal professional privilege was a general principle that contributed to respect for fundamental rights and was enshrined in Articles 10, 11 and 22 of the Belgian Constitution and Articles 6 and 8 of the Convention.

Without taking any stance on the existence of an ‘interference’ with Article 8 rights in the present case, or the applicant's victim status, the Bar Council went on to point out that a person could claim that a law violated his rights in the absence of any individual measure of implementation if it required him to either modify his conduct or risk being prosecuted, or if he belonged to a class of people likely to be directly affected by it.

As to the presumption of equivalent protection, it did not apply in this case, which concerned the transposition of a European Directive. This was confirmed by paragraph 157 of the Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi judgment cited above. The French-speaking Bar Council also referred to the Cantoni case, cited above, in which the Court had given the impugned measures its full scrutiny even though they simply transposed a Directive into French law, and to the M.S.S. judgment cited above.

Lastly, the Bar Council drew the Court's attention to the judgment of 23 January 2008 mentioned above, in which the Constitutional Court of Belgium had held that while the fight against money laundering and terrorist financing was a legitimate aim in the public interest, it could not justify the unconditional or unlimited lifting of legal professional privilege, as lawyers could not be confused with the authorities responsible for crime detection. It had accordingly found that information that came to the lawyer's attention in the course of the essential activities of his profession, including those listed in Article 2 § 1 (3)(b) of Directive 2005/60/EC, namely, assisting and defending clients in matters of justice and providing legal advice, even outside the context of judicial proceedings, fell within the scope of legal professional privilege and could not be disclosed to the authorities.

However, the Constitutional Court did not suggest that professional confidentiality was unlimited. Based on Article 20 of the Directive, it specified in its judgment that a lawyer who failed to dissuade a client from conducting or taking part in a money laundering or terrorist financing operation he knew to be illegal was required, in circumstances where the obligation to report suspicions applied to him, to pass on the information in his possession to the chairman of the Bar for communication to the authorities. In such an event, he should terminate the relationship between himself and the client concerned, so that the relationship of confidence between lawyer and client was no longer an issue.

EBHRI submitted that professional confidentiality was a legal obligation in France, prohibiting the disclosure of confidential information obtained by virtue of a person's status or profession or as a result of a temporary mission or duty, the aim being to foster the trust necessary to the exercise of certain professions or functions.

It was EBHRI's conviction that professional confidentiality was an absolute duty of the lawyer in all his activities and in respect of all his files. In connection with the transposition of the Directives cited above, the National Bar Council had stated: ‘while the aim of combating crime and terrorism is legitimate, lawyers refuse to be informers or police the system and renege on the very essence of their oath and their essential values; the anti-laundering Directives and, as a result, our domestic law, threaten the fundamental rights of our citizens, the independence of our lawyers, the confidentiality of exchanges between lawyer and client, legal professional privilege and the presumption of innocence; they destroy the indispensable trust between the client and his lawyer; for fear of being reported, the client will feel obliged to withhold certain information; the lawyer will be ill-informed and unable to advise his client properly and defend his interests’.

EBHRI went on to point out that according to the Court's case-law Article 8 of the Convention protected the confidentiality of exchanges between lawyers and their clients and legal professional privilege, and that the case-law of the Court of Justice of the European Union took a similar stance.

EBHRI emphasised that in order to assess the ‘need’ for interference with the enjoyment of the rights guaranteed by Article 8 one had first to take into account ‘the extent of the interference and its effects’. In this connection it highlighted four points. Firstly, the client's right to remain silent was also at stake. The obligation to report suspicions required lawyers to make their clients incriminate themselves. Secondly, as the legal provisions in issue were based on the notion of ‘suspicions’, but did not define that term, the ‘law’ had neither the quality nor the foreseeability required. Thirdly, confidentiality was particularly important in the Court's case-law — which protected the confidentiality of journalists' sources and of medical data —, the protection of legal professional privilege in the face of this type of obligation had been affirmed in Canada and the United States, and the positive law of certain European Union member States (Italy, Estonia, Belgium, the Netherlands and Ireland), as well as Switzerland, was more protective. Fourthly, as the Court had pointed out in the Casado Coca v. Spain judgment (24 February 1994, Series A no. 285-A), the lawyer played a key role in preserving public confidence in the action of the courts; it was essential, therefore, that people should be able to trust in their lawyers, which meant preserving their independence from the authorities — which was undermined by the link with Tracfin established by the legal provisions in issue — and the confidentiality of the information they handled.

The interference also had to be proportionate to the aim pursued: the fight against money laundering and terrorism. However, whereas the Court had found in the Xavier Da Silveira v. France case (no. 43757/05, 21 January 2010) that special procedural guarantees were needed in that particular case, which concerned searches or visits to a lawyer's offices, the provisions in issue in the present case provided no such guarantees (the part played by the chairman of the Bar was limited to an advisory role where he was certain that there was nothing suspicious to report). In addition, French lawyers were all subject to the criminal law on money laundering, which was particularly strict, as well as to major ethical obligations, with sanctions for failure to comply, and to financial supervision. They were not allowed to handle cash transactions, except for very small sums, and bank transfers had to be made through a special payment fund for lawyers.

Lastly, on the subject of the presumption of equivalent protection, EBHRI pointed out that the Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi case concerned the obligation for the respondent State to apply a Community Regulation implementing the obligations arising from a binding resolution of the United Nations Security Council. Thus far the cases in which the Court had allowed equivalent protection in favour of the European Union had not concerned the implementation of Directives, which, unlike Regulations, left the States a margin of appreciation. Furthermore, while the fact that certain of the Directives relating to money laundering referred to the Convention might lead to the acknowledgment of an equivalence of the rules and the substantive protection, there was clearly no equivalence of procedural protection in the absence of a right of individual petition in the European Union system. EBHRI also noted that the Court had acknowledged the equivalence of the protection afforded in the case of disputes involving international organisation staff members, precisely because they had a right of direct individual application to a judicial body affording all the requisite guarantees (it referred to Boivin v. 34 member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008; Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009; and Beygo v. 46 member States of the Council of Europe, no. 36099/06, 16 June 2009).

In establishing the right of ‘everyone’ to respect for his ‘correspondence’, Article 8 of the Convention protects the confidentiality of ‘private communications’ (see Frerot v. France, no. 70204/01, § 53, 12 June 2007), whatever the content of the correspondence concerned (idem., § 54), and whatever form it may take. This means that what Article 8 protects is the confidentiality of all the exchanges in which individuals may engage for the purposes of communication.

So, in requiring lawyers to report to the administrative authorities information concerning another person which came into their possession through exchanges with that person, the obligation for them to report suspicions constitutes an interference with lawyers' right to respect for their correspondence. It also constitutes an interference with their right to respect for their ‘private life’, a notion which includes activities of a professional or business nature (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B).

In the present case it is true that the applicant does not claim to have found himself in a situation where he was actually obliged to declare such suspicions, or to have been disciplined under the regulations concerned for having failed to do so. However, as indicated previously, he is faced with the following dilemma: either he does as he is told and in so doing abandons his idea of the principle of the confidentiality of exchanges between lawyer and client and of legal professional privilege; or he refuses to comply and exposes himself to disciplinary sanctions and even disbarment. In the opinion of the Court, therefore, the obligation to report suspicions amounts to a ‘continuing interference’ (see, mutatis mutandis, Dudgeon, cited above, § 41, and Norris, cited above, § 38) with the applicant's enjoyment, as a lawyer, of the rights guaranteed by Article 8, even if it is not the most intimate sphere of his private life that is affected but his right to respect for his professional exchanges with his clients.

Such interference violates Article 8, unless it is ‘in accordance with the law’, pursues one or more of the legitimate aims referred to in paragraph 2 and is ‘necessary in a democratic society’ to achieve the aim or aims concerned.