Information Note on the Court’s case-law No. 158
December 2012
Michaud v. France - 12323/11
Judgment 6.12.2012 [Section V]
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Obligation on lawyers to report suspected money laundering by clients unless suspicions based on information obtained when acting for client in court proceedings: no violation
Facts – In July 2007 the National Bar Council decided to adopt a professional regulation intended, inter alia, to secure the implementation of obligations imposed on the legal profession in the context of the fight against money laundering, pursuant to European Directive 2005/60/EC. In consequence, lawyers were obliged in certain circumstances to report to the national financial intelligence unit (Tracfin) sums of money belonging to their clients where they suspected that these had been obtained through a criminal activity such as money laundering. In October 2007 the applicant, a lawyer, applied to the Conseil d’Etat to have the Bar Council’s decision set aside. On 23 July 2010 his application was dismissed.
Law – Article 8: The obligation placed on lawyers to report suspicions constituted an interference with their right to respect for their correspondence, in that they were required to transmit to an administrative authority information concerning another person obtained through exchanges with him or her. It also amounted to an interference with their right to respect for their private life, which covered activities of a professional or business nature. Admittedly, the applicant had not had reason to report such suspicions, nor had he been sanctioned pursuant to the impugned regulations for having omitted to do so. However, either he complied with the regulations if the circumstances in question arose, or, should he fail to do so, he would be exposed to disciplinary sanctions, including disbarment. Thus, the obligation to report suspicions represented a “continuing interference” with the applicant’s exercise, in his capacity as a lawyer, of the rights safeguarded by Article 8 in respect of professional exchanges with his clients.
The obligation placed on lawyers to report suspicions was in accordance with the law as set out in the Monetary and Financial Code. The law was accessible and clear in its description of the activities to which it was applicable. The impugned interference was intended to combat money laundering and related criminal offences, thus pursuing the legitimate aim of the prevention of disorder and the prevention of crime.
The obligations of vigilance and reporting of suspicions resulted from the transposition of European directives into the Monetary and Financial Code that France had been required to carry out on account of the legal obligations arising from its membership of the European Union. Referring to the judgment in Bosphorus Airways, the Government considered that France should be presumed to have complied with the requirements of the Convention, given that it had merely discharged those obligations and that it had been established that the European Union afforded fundamental rights equivalent protection to that guaranteed by the Convention. However, the present case differed from the Bosphorus Airways case in two main ways. It concerned France’s implementation of directives which bound the member States with regard to the result to be attained, but left them free to choose the method and form. The issue of whether, in complying with the obligations resulting from its membership of the European Union, France had in consequence sufficient discretion to thwart application of the presumption of equivalent protection was not therefore irrelevant. Further and most importantly, the Conseil d’Etat, in deciding not to request a preliminary ruling from the European Court of Justice although that court had not yet examined the question concerning Convention rights that was before it, had ruled before the relevant international machinery for supervision of fundamental rights, in principle equivalent to that of the Convention, had been able to demonstrate its full potential. Having regard to that decision and the importance of what was at stake, the presumption of equivalent protection was not applicable. The Court was therefore required to determine whether the interference had been necessary within the meaning of Article 8 of the Convention.
The Court concurred with the Conseil d’Etat’s analysis in its judgment of 23 July 2010, which, after noting that Article 8 protected the fundamental right of professional privilege, held that subjecting lawyers to an obligation to report suspicions did not constitute an excessive interference in view of the public interest attached to the fight against money laundering and the guarantee represented by the exclusion from its scope of information received or obtained by lawyers when acting for clients in court proceedings, and information received or obtained in the context of providing legal advice (except where the legal adviser played, through his or her acts, an active role in the money laundering). Legal professional privilege was not inviolable. It had to be weighed against steps to combat the laundering of proceeds of unlawful activities, themselves likely to be used in financing criminal activities. The European directives followed that logic. Even if any lawyer implicated in a money-laundering operation were to be liable to criminal proceedings, this could not invalidate the decision to provide for punitive sanctions in a measure that had a specifically preventive aim. Finally, two elements were decisive in assessing the proportionality of the impugned interference. The first was related to the fact that lawyers were subject to the obligation to report suspicions only in two cases: firstly, where, in the context of their professional duties, they took part for and on behalf of their clients in financial or property transactions or acted as trustees; and, secondly, where, still in the context of their professional duties, they assisted their clients in preparing or carrying out transactions concerning certain defined operations.* Thus, the obligation to report suspicions concerned only activities which were remote from the role of defence entrusted to lawyers and which resembled those carried out by the other professionals who were also subject to the above obligation. The second element was the fact that the legislation had introduced a filter which protected professional privilege: lawyers did not transmit reports directly to Tracfin but, as appropriate, to the president of the Bar of the Conseil d’Etat and the Court of Cassation or to the president of the Bar of which they were members. Thus, the information was shared with a professional who was not only subject to the same rules of conduct but was also elected by his or her peers to ensure compliance with them, thus ensuring that professional privilege was not breached. The president of the relevant Bar transmitted the disclosure of suspicions to Tracfin only after ascertaining that the conditions laid down by the Monetary and Financial Code had been met.
Thus, as implemented and having regard to the legitimate aim pursued and the latter’s particular importance in a democratic society, the obligation to report suspicions did not constitute a disproportionate interference with legal professional privilege.
Conclusion: no violation (unanimously).
(See Bosphorus Hava Yolları Turizm Anonim Şirketi v. Ireland [GC], no. 45036/98, 30 June 2005, Information Note no. 76)
* These operations were: (1) buying and selling of real property or business entities; (2) managing of client money, securities or other assets; (3) opening of bank, savings or securities accounts; (4) organisation of contributions necessary for the creation of companies; (5) creation, operation or management of companies; (6) creation, operation or management of foreign-law trusts or similar structures.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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