C-106/91
ECLI:EU:C:1992:141
- Súd
- Súdny dvor Európskej únie
- IČS
- 61991CC0106
- Zdroj
- eur-lex.europa.eu ↗
RAMRATH v MINISTRE DE LA JUSTICE
OPINION OF ADVOCATE GENERAL JACOBS delivered on 19 March 1992 *
My Lords, presence in that Member State and the conditions necessary for ensur- ing compliance with the rules of professional conduct? 1. In the present case, the Conseil d'État of Luxembourg has requested a preliminary ruling on three questions concerning the freedom to practise as an auditor of com- pany accounts: (2) Do Article 52 et seq. of the EEC Treaty, or any other provisions of the Treaty and the implementing rules, permit the competent authorities of a Member (1) (a) Do Article 52 et seq., or any other State to grant authorizations to act provisions of the Treaty and the as auditors only to employees of implementing rules, permit the com- a person so authorized under its petent authorities of a Member State national legislation, to the exclusion of to deem it incompatible with the employees of a person authorized under exercise by a natural person in that the legislation of another Member State? Member State of the profession of auditor for that person to be estab- lished as an auditor in another Member State? 2. The Institut des Réviseurs d'Entreprises, which is the professional body which regu- lates the auditing profession in Luxembourg, and if not, is a party to the main proceedings, and has in addition submitted written observations to the Court.
(b) May a Member State impose, on a person authorized to carry on the profession of an auditor in another Member State in which that person 3. The questions referred by the Conseil also has a business establishment, d'Etat arise in the context of an action requirements with regard to a per- brought by Mr Claus Ramrath against the manent infrastructure for the per- Luxembourg Minister of Justice ('the Minis- formance of his work, minimum ter'), challenging the validity of a decision to conditions with regard to actual withdraw Mr Ramrath's authorization to practise as an auditor in Luxembourg. That authorization had originally been given on * Original language: English. 11 February 1985, when Mr Ramrath was
I - 3367
OPINION OF MR JACOBS — CASE C-I06/91
employed by the Société civile Treuarbeit, a was employed by a firm which was not itself firm established, and authorized to audit, in authorized to practise in Luxembourg, Luxembourg (hereafter 'Treuarbeit Luxem- namely Treuarbeit Düsseldorf. bourg'). However on 1 February 1988 Mr Ramrath informed the Institut des Réviseurs that he was now employed by Treuarbeit A G , a firm established in Düsseldorf (here- after 'Treuarbeit Düsseldorf'). O n 8 August 1988, the Minister informed Mr Ramrath 5. Neither the Minister nor the Institut des that, in consequence, his authorization was Réviseurs has sought to contest that it would to be withdrawn, and invited him to state his be contrary to Community law to withdraw views. O n 28 September 1988, Treuarbeit authorization to practise on the sole ground Luxembourg wrote to the Minister, stating that the auditor in question was established that it employed Mr Ramrath as regards his as an auditor in another Member State. As duties in Luxembourg. Notwithstanding that the Court stated in Case 107/83 Ordre des statement, Mr Ramrath's authorization to Avocats au Barreau de Pans v Klopp [1984] practise was definitively withdrawn on ECR 2971, at paragraph 19 of the judgment: 19 May 1989.
'That freedom of establishment is not con- fined to the right to create a single establish- ment within the Community is confirmed by the very words of Article 52 of the Treaty, according to which the progressive abolition of the restrictions on freedom of establish- ment applies to restrictions on the setting up 4. The Minister gave two reasons for with- of agencies, branches or subsidiaries by drawing Mr Ramrath's authorization. The nationals of any Member State established in first reason was that Mr Ramrath did not the territory of another Member State. That have a professional establishment in Luxem- rule must be regarded as a specific statement bourg, contrary to the requirement laid of a general principle, applicable equally to down by Article 3(1 )(c) of the Law of the liberal professions, according to which 28 June 1984 on the organization of the pro- the right of establishment includes freedom fession of company auditor. The second rea- to set up and maintain, subject to observance son was that, by virtue of Mr Ramrath's of the professional rules of conduct, more employment by Treuarbeit Düsseldorf, he than one place of work within the Commu- lacked the professional independence nity.' required by Article 6 of the same law, which prohibits, in particular, an auditor from tak- ing any salaried employment with a person not authorized to practise in Luxembourg. Thus, Mr Ramrath's authorization was with- drawn, not on the ground that he was estab- Furthermore, as the Court made clear in lished in another Member State, but on the Case 96/85 Commission v France [1986] grounds that he (1) had no place of profes- ECR 1475, the freedom of a professional to sional establishment in Luxembourg, and (2) practise in more than one Member State
I - 3368
RAMRATH v MINISTRE DE LA JUSTICE
extends, by virtue of Article 48 of the Treaty, the Minister explains in his written observa- to the right to practise as an employee. tions, Article 3(1 )(c) was inserted into the Law of 28 June 1984 in order that the fiscal and regulatory authorities, in exercising their supervisory powers, might have recourse to a body with a stable presence in Luxembourg. 6. It seems to me, therefore, that there can In what follows, I shall proceed on the be no doubt that the first of the three ques- assumption that such requirements are justi- tions referred by the Conseil d'Etat is to be fied, an assumption that has not been chal- answered in the negative. The question lenged in these proceedings. I will first con- therefore arises what restrictions a Member sider the force of the arguments concerning State may none the less impose on the prac- minimum presence as they arise if, as Treuar- tice of the profession of auditor on its terri- beit Luxembourg informed the Minister, Mr tory. May a Member State impose require- Ramrath was employed by that firm while ments relating, in particular, to permanent he was providing services in Luxembourg. infrastructure and minimum presence? May Since, however, the accuracy of that state- it require that an auditor be employed only ment is disputed by the Minister, it is neces- by a person authorized to practise under its sary to consider other hypotheses also. own national legislation? In what follows, I shall discuss each of those questions in turn. Although the questions referred to the Court make specific mention only of Article 52 of the Treaty, it is clear that the freedom to practise a profession may be guaranteed, according to the circumstances, by Articles 48 and 59 of the Treaty, as well as by Article 52.
8. In the first place, it is clear that a person who provides auditing services in the course of his salaried employment with a firm The requirement of minimum presence established in Luxembourg provides those services on behalf of his employer, even where that employment is merely temporary. It seems to me, therefore, that any national requirements relating to the preservation and 7. The Institut des Réviseurs suggests in its confidentiality of documents and records can written observations, and argued at the hear- be adequately enforced against the employer ing, that the stable presence of an auditor in Luxembourg. Similarly, any requirement within the Member State where the auditing to maintain contact with clients or with the work is carried out is necessary for the competent national authorities can be met by proper supervision of the profession. It is the employer himself, or by other members argued, in particular, that the need to con- of his staff, and can be enforced against the serve documents and records, and to enforce employer in case of default. Finally, any nec- rules of professional confidence, require the essary rules of professional conduct can be person responsible for the auditing work to enforced also against the employee, who will have a permanent place of establishment be present in Luxembourg whilst providing within the regulating Member State. Thus, as services there.
I - 3369
OPINION OF MR JACOBS — CASE C-106/91
9. Furthermore, it is not suggested, either by agency of the German company, as opposed the Minister or by the Institut des Réviseurs, to a branch. In any event, the rights of estab- that there is any requirement of Luxembourg lishment of Treuarbeit Düsseldorf are not law which prevents auditors permanently directly at issue in the present proceedings. established in Luxembourg from taking on temporary staff. Accordingly, I do not see how a requirement could be justified which had the effect of preventing such an employer from taking on, as a temporary employee, an auditor qualified to practise in 11. From the reply given by the Minister to Luxembourg but principally employed by a a written question put by the Court, it firm established in another Member State. It appears that the Minister disputes the state- seems to me, therefore, that such a require- ment by Treuarbeit Luxembourg, according ment would not be consistent with the right to which Mr Ramrath provides services in to free movement provided by Article 48 of Luxembourg as an employee of that firm. the Treaty, which protects the right t o take The precise circumstances in which Mr up temporary employment in another Mem- Ramrath provides such services is of course a ber State. question of fact which can only be decided by the national court. O n the other hand, it is equally clear that it is a matter of Commu- nity law what criteria are to be applied in deciding whether those circumstances are to be classified as an employment relationship: see Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 11 of the judgment. Furthermore, as will be seen, 10. In certain circumstances, moreover, that Mr Ramrath may in any case be able to rely requirement would constitute a restriction upon the freedom to provide services, under on the freedom of firms established in one Article 59 of the Treaty, even if he were Member State to set up branches, subsidi- unable to rely, in respect of his appointment aries or agencies in another Member State, with the Luxembourg firm, on the freedom guaranteed by Article 52 of the Treaty, since of movement for workers provided by Arti- the temporary transfer of staff between cle 48. offices in different Member States may be necessary for the efficient functioning of the organization. It was not clear from the Order for Reference whether Treuarbeit Luxembourg is indeed a branch, agency or subsidiary of Treuarbeit Düsseldorf. At the 12. In his reply to the Court's question, the hearing, the Minister pointed out that Minister suggests that the placing of Mr Treuarbeit Luxembourg, as a company with Ramrath at the disposal of Treuarbeit Lux- its own distinct legal personality, could not embourg by Treuarbeit Düsseldorf, for the be regarded a 'branch' of the German com- purpose of providing particular services in pany, which is moreover apparently itself a Luxembourg, does not in itself amount to branch of a company which has its registered the employment of Mr Ramrath by the Lux- offices in Berlin and Frankfurt. It is clear embourg firm. That may be so; but the deci- however that that would not prevent Treuar- sive question, in my view, is not whether Mr beit Luxembourg from being a subsidiary or Ramrath works as a salaried employee in
I - 3370
RAMRATH v MINISTRE DE LA JUSTICE
Luxembourg, but only whether he can rely Treuarbeit Düsseldorf, so that the provision upon either of the two freedoms guaranteed, of services is made by the German firm to respectively, by Article 48 and Article 59 of the Luxembourg firm and not by Mr the Treaty. For those two articles, together Ramrath himself, the reply would be that in where appropriate with Article 52, must be that case he can rely upon Article 48, which regarded as covering between them all poss- guarantees his right to provide services in ible situations in which a person is providing Luxembourg in the course of performing his professional services across Member State contractual duties to his German employer, frontiers. What matters therefore is whether as indeed Treuarbeit Düsseldorf could rely the requirements of Luxembourg law which upon Article 59. are designed to regulate the activity of audit- ing can be met in the case of an auditor who is temporarily placed at the disposal of a firm established in Luxembourg. As I have already indicated, it seems to me to be suffi- cient, for the purpose of satisfying those requirements, if the services provided by Mr Ramrath to clients in Luxembourg are pro- vided by him on behalf of a firm which is 14. However the situation may be analysed, itself established there, for in such circum- therefore, it is clear that Mr Ramrath's right stances any of the relevant supervisory to exercise his profession in Luxembourg is requirements can be adequately enforced: see protected by the Treaty. Any legitimate paragraph 8 above. Accordingly, it does not requirement, imposed by Luxembourg law, seem to me to make any difference whether for a place of professional establishment in or not Mr Ramrath is employed by the Lux- Luxembourg, can be satisfied, in my view, as embourg firm, as long as that firm can be long as there is a firm of auditors, established held responsible for his activities. in Luxembourg, which takes responsibility for the conduct and results of Mr Ramrath's auditing activities.
13. Where auditing services are provided by 15. In my view, therefore, a Member State is Mr Ramrath on behalf of Treuarbeit Luxem- not permitted to impose requirements relat- bourg, it may be appropriate to regard that ing to permanent infrastructure or continuity provision as a supply of services made by the of presence, or enforce rules of professional firm to its clients, rather than as a supply conduct, which would have the effect of pre- made by Mr Ramrath himself, even where he venting an auditor who would otherwise be is not an employee of that firm. In that case, qualified to practise in Luxembourg, either however, it seems to me that there will also from taking up temporary employment with be a provision of services by Mr Ramrath to a person or firm established in Luxembourg, the firm. If it were to be objected that, in or from providing services there on behalf of providing those services, Mr Ramrath is in such a person or firm, even where the audi- reality acting on behalf of his employer, tor has no other base in Luxembourg.
I - 3371
OPINION OF MR JACOBS — CASE C-106/91
Employment by a non-authorized person It is clear that Luxembourg was entided to implement Article 24 by forbidding an audi- tor to be employed by any person or firm which is not itself an auditor. It is however 16. It will be recalled that the second reason less clear that it is permissible to exclude, given by the Minister for withdrawing Mr equally, employment with a person or firm Ramrath's authorization to practise was that authorized as an auditor under the law of Mr Ramrath was employed by a person not another Member State. Such a Member State authorized as an auditor under Luxembourg must be presumed, as from 1 January 1990, law, contrary to Article 6 of the Law of to have brought into force provisions imple- 28 June 1984. Both the Minister and the menting the Eighth Directive, including the Institut des Réviseurs argue that the require- obligations laid down by Articles 23 and 24, ment laid down by Article 6 is necessary in and may have already done so before that order to ensure the professional indepen- date. Article 3 of the directive provides, fur- dence of auditors in Luxembourg. thermore, that:
17. The requirement of professional inde- pendence laid down by Article 6 of the Lux- embourg legislation appears to be intended 'The authorities of a Member State shall to implement Article 24 of the Eighth Coun- grant approval only to persons of good cil Directive of 10 April 1984 based on Arti- repute who are not carrying on any activity cle 54(3)(g) of the Treaty, on the approval of which is incompatible, under the law of that persons responsible for carrying out the statu- Member State, with the statutory auditing of tory audits of accounting documents (OJ the documents referred to in Article 1(1).' 1984 L 126, p. 20). Member States were required to implement the Eighth Directive by 1 January 1988, and by provisions which would apply at the latest from 1 January 1990. Articles 23 and 24 of the directive pro- vide, respectively, that: 18. It is true that definitions of what activi- ties are incompatible with statutory auditing, and of what constitutes professional inde- 'Member States shall prescribe that persons pendence (although not perhaps professional approved for the statutory auditing of the integrity) may vary as between Member documents referred to in Article 1(1) shall States, as the reference to national law in carry out such audits with professional Articles 3 and 24 of the directive suggests. If integrity.' therefore it were shown that the particular circumstances of an auditor's employment with a person or firm authorized in another Member State were such as to offend against 'Member States shall prescribe that such per- the requirements of professional indepen- sons shall not carry out statutory audits dence which are enforced in Luxembourg, or which they have required if such persons are against other legitimate requirements, that not independent in accordance with the law might be a reason for requiring such of the Member State which requires the employment to cease. Similarly, such an audit.' employment might preclude the auditor in
I - 3372
RAMRATH v MINISTRE DE LA JUSTICE
question from carrying out particular audits, of professional independence is satisfied in by virtue of a connection between the any particular case. In the case of an audit audited company and his employer. It would performed by Mr Ramrath, the Luxembourg be for the national court to decide whether authorities are, in particular, entided to such an infringement of standards had require that there be no connection between occurred in any individual case. O n the other the audited company and Treuarbeit Düssel- hand, it does not seem to me that a Member dorf such as to impair his independence, and State is permitted to assume, without proof, if such requirements are to be enforced it that its standards have been infringed by the may be necessary for the regulatory authori- mere fact of employment by an auditor ties in the two countries to cooperate and to authorized in another Member State. It is exchange information. However, it does not rather for the Member State to show that the seem to me excessively onerous to require auditor's ability to carry out audits on its the Luxembourg authorities to engage, if territory with the requisite independence and necessary, in such a procedure of coopera- integrity has been impaired. tion. The cooperation between the regula- tory authorities of different Member States will frequendy be necessary if the free move- 19. It is true that, in order to ensure compli- ment of the professions is to be secured. In ance with the relevant rules of professional any case, however, it is clear that the mere conduct and independence, it may not possibility of a conflict of interest resulting always be sufficient merely to compare the from employment in another Member State regulations governing the matter in the two is not sufficient to justify a prohibition on Member States concerned. Thus, even if Ger- practice in Luxembourg. In my view, there- man rules governing professional indepen- fore, it is manifestly disproportionate for dence of auditors contain requirements iden- Luxembourg to lay down an absolute and a tical to those laid down in Luxembourg, it priori prohibition against employment with a may still be necessary for the Luxembourg firm of auditors established in another Mem- authorities to examine whether the condition ber State.
Conclusion
20. I am accordingly of the o p i n i o n that the questions referred b y the Conseil d ' E t a t s h o u l d be answered as follows:
(1) Articles 48, 52 and 59 of the Treaty p r e c l u d e the c o m p e t e n t authorities of a M e m b e r State from refusing a C o m m u n i t y national a u t h o r i z a t i o n t o act as an
I - 3373
OPINION OF MR JACOBS — CASE C-106/91
auditor on the ground that he is established as an auditor in another Member State, or (subject to the answer given under (3) below) on the ground that he is employed there.
(2) Articles 48 and 59 of the Treaty preclude a Member State from imposing requirements relating to a permanent infrastructure and minimum conditions of actual presence in that Member State, or from enforcing rules of profes- sional conduct, which have the effect of preventing a Community national otherwise qualified to do so, who is established or employed as an auditor in another Member State, from either (i) taking up temporary employment with a person or firm established as an auditor in the first Member State, or (ii) temporarily providing services on behalf of such a person or firm.
(3) Articles 48, 52 and 59 of the Treaty preclude the competent authorities of a Member State from preventing a Community national from acting as an audi- tor, on the ground that he is employed by a person or firm authorized so to act under the law of another Member State, unless it has been shown that such employment is inconsistent, in the circumstances of the case, with his profes- sional integrity or independence.
I - 3374