MICHAUD V. FRANCE: A step forward into the Bosphorus doctrine, or a step backward into “subjective” foreseeability?
This guest post was written by Daria Sartori.*
Two weeks ago, the European Court delivered a judgment in the case of Michaud v. France.
Even though it is not final yet, this judgment is highly interesting because of its dual core, giving better shape to the Bosphorus doctrine while reaching questionable conclusions on the nature of national law’s “foreseeability” test.
In order to fight money laundering and terrorist financing, the European Community adopted a Directive (91/308/CE) in 1991, which was amended in 2001 (2001/97/CE) and eventually improved and replaced in 2005 by Directive 2005/60/CE). Under these Directives, “independent legal professionals” have the duty to promptly inform the Financial Intelligence Unit if they “know, suspect or have reasonable grounds to suspect” that money laundering or terrorist financing is being or has been committed or attempted; however, this duty does not apply to all activities directly or indirectly related to their defense tasks (see articles 2, 22 and 23 of the 2005 Directive).
The French State implemented those Directives by duplicating their vague provisions in the Monetary and Financial Code (articles from L.561.15 to L.561.22), and prescribing that lawyers not fulfilling their “declaration duties” might be subjected to disciplinary proceeding (article L.561-36 III). On this basis, in 2007 the French National Council of lawyers (Conseil National des barreaux) adopted an internal regulation providing for sanctions, up to the lawyer’s disbarment.
That very year, the Conseil d’Etat was asked to repeal this internal regulation, which allegedly violated articles 7 and 8 of the European Convention on Human Rights. The applicant (a French lawyer) argued that the regulation lacked precision and foreseeability, and infringed the lawyer’s right to privacy by imposing a disclosure of strictly confidential information. He also asked the Conseil d’Etat to request the ECJ a preliminary ruling on the compliance of the “declaration of suspicion” with Article 6 TUE.
With a decision released on the 23rd July 2010, the Conseil d’Etat dismissed all claims and declared the regulation in accordance with European human rights standards.
The applicant, then, applied to the European Court of Human Rights, claiming that there had been a violation of Articles 6, 7, 8 ECHR.
Firstly, the Court dealt with the alleged violation of Article 8 ECHR. After stating that the interference with the lawyers’ right to privacy was “in accordance with the law” and pursued a “legitimate aim”, the Court had to evaluate the main argument of the French Government, namely that the Bosphorus presumption of equivalent protection had to be applied in the present case and the Strasbourg Court should therefore not check the “proportionality” of the interference.
The Court acknowledged that, according to its previous Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland judgment (30.06.2005), the protection of human rights by Community law is in principle “equivalent” to that of the Convention system.
However, the Court made an interesting distinction, stating that:
1. The Bosphorus case dealt with a Community Regulation, which by nature does not provide a margin of discretion for Member States, whereas the Michaud case was about a Community Directive which by nature allows member States to choose the means to reach a settled goal;
2. In the Bosphorus case the ECJ had already checked the respect of fundamental rights by the Regulation, whereas in the Michaud case a similar control over the Directives had been prevented by the Conseil d’Etat not deferring the question to the ECJ.
Consequently, « la Cour se doit de constater que, du fait de la décision du Conseil d’Etat de ne pas procéder à un renvoi préjudiciel [ ...], celui-ci a statué sans que le mécanisme international pertinent de contrôle du respect des droits fondamentaux, en principe équivalent à celui de la Convention, ait pu déployer l’intégralité de ses potentialités. Au regard de ce choix et de l’importance des enjeux en cause, la présomption de protection équivalente ne trouve pas à s’appliquer » (para. 115)
Having thus stated that the presumption of equivalent protection could not be applied to the Michaud case, the Court tested the proportionality of the interference and eventually reached the conclusion that the French provisions did not violate Art. 8 ECHR.
The Court then quickly rebutted the arguments in favour of the alleged violation of Articles 7 and 6 ECHR (notwithstanding the considerable space that all parties had been given to) and stated that no violation of the Convention could be found in the supervised French law.
It must be stressed that the Michaud case does not deny the Bosphorus doctrine: rather, if and when this judgment will become final, it will contribute to a better shaping of the Court’s position towards Community / EU laws, which today is not well defined.
Of course, since the case law on this subject is still under-developed, the inferences one can draw from the Michaud judgment are limited. However, this little “brick” added to the building of the relationship between the ECHR and the EU laws, leads to the following basic conclusions:
1. The Court does not pretend anymore (as it did for instance in Cantoni v France) that there are no problematic aspects in the control exerted over national laws implementing EU Directives. However:
2. The Court’s approach is highly casuistic, depending on the concrete situation under analysis. Therefore:
3. The Court’s main concern when facing the problem of equivalent protection is not that of setting a precedent valid for all subsequent case-law, neither that of distinguishing between Regulations and Directives, but that of verifying if the Bosphorus presumption can apply to the concrete situation. More specifically:
4. The Court seems to attach the greatest importance to the presence of a judicial review by the ECJ (the access to that Court being indeed one of the most problematic aspects of the EU judicial protection of fundamental rights).
In addition to these conclusions about the Bosphorus doctrine, the Michaud judgment can be the basis for a critical evaluation of the Court’s opinion on interferences to Conventional rights being “in accordance with the law”.
With regard to the “declaration of suspicion” (and the distinction between activities related or not related to the lawyer’s defense tasks), the Court developed an interesting reasoning, based on its settled case law but going much further (and, in my opinion, risking a slippery slope).
The prevailing view on foreseeability is that this “qualitative requirement” of national law “depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed”(Cantoni v France, 11.11.1996, para. 35; Groppera Radio AG and Others v. Switzerland, 28.3.1990, para. 68).
However, the Michaud judgment is peculiar because the Court focused nearly only on the “status of those to whom [the law] is addressed”, in this case lawyers.
The Court, after having (too easily) dismissed the arguments against the excessive vagueness of the French law, holds that
« [..] ces indications sont suffisamment précises, d’autant plus que les textes dont il s’agit s’adressent à des professionnels du droit et que, comme le souligne le Gouvernement, la notion de « consultation juridique » est définie notamment par le conseil des barreaux.» (para. 97)
This means that, even if the notion of “suspicious activities” is manifestly ambiguous, even if there is no relevant case law clarifying the notion; even if it’s difficult to distinguish between “information received or obtained before, during or after” a judicial proceeding (excluded by the declaration of suspicion) and information “provided for the purpose of money laundering or terrorist financing” (included in the declaration of suspicion) and even if distinguishing relevant and irrelevant information on the mere basis of the “knowledge that the client requested it for the purpose of money laundering or terrorist financing” is not easy; the law is still foreseeable because it is addressed to lawyers.
Does this mean that an insuperable burden is placed upon the lawyer, who is assumed to know everything about the law (even about what the law doesn’t say)? Does this mean that every time a lawyer is involved, the law can avoid the “qualitative requirements” that the ECHR system usually requires? In the end, does this means that lawyers are subject to a massive discrimination by the European Court of Human Rights?
We hope that this won’t be the path of the future case law of the European Court on foreseeability.
*Daria Sartori is a Ph.D candidate in Criminal Law at Trento University (Italy). She is interested in the relationship between Criminal Law and Human Rights, and she is presently working in Italy and abroad, on a research project about the Principle of Legality and the European Convention on Human Rights.