62000CC0153_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1.
By letter of 13 April 2000, the investigating judge at the Rechtbank van eerste aanleg te Turnhout (Court of First Instance, Turnhout) (Belgium) submitted four questions to the Court for a preliminary ruling under Article 234 EC.
By his questions, the investigating judge seeks to determine whether Belgian legislation on giving evidence in legal proceedings is compatible with Community law.
He also seeks to obtain the necessary information to determine whether certain aspects of the Luxembourg legislation on banking secrecy are compatible with Community law.
I ─ The relevant national provisions
A ─
Belgian law
2.
Under Belgian law, professional secrecy is governed by Article 458 of the Criminal Code.
That article provides:
‘Medical practitioners, surgeons, health officers, apothecaries, midwives and all other persons who, owing to their status or profession, obtain knowledge of secrets entrusted to them and disclose them otherwise than if called upon to give evidence in legal proceedings or before a parliamentary committee of inquiry or unless required to disclose them by law, shall be liable to imprisonment of eight days to six months and a fine ranging from one hundred to five hundred francs’. (2)
3.
According to the case-law of the Belgian courts and tribunals, Article 458 of the Criminal Code does not apply to the banking sector. (3)
In a judgment of 25 October 1978, (4) the Cour de Cassation (Belgique) (Belgian Court of Cassation) held that
"neither the nature of the functions carried out by bankers, nor any legal provision, confers on them the quality of persons bound by an obligation of professional secrecy for the purposes of Article 458 of the Criminal Code"
.
4.
The hearing of witnesses is governed by Articles 71 to 86 of the Belgian Code of Criminal Procedure.
Article 75 of that code provides that the witness is to swear an oath that he will tell the whole truth and nothing but the truth.
In addition, Article 80 provides:
"Any person summoned to be heard as a witness is obliged to appear and satisfy the writ of summons; if not, he may be coerced by the investigating judge, who, to that end, after hearing the opinion of the public prosecutor, and subject to no other formality, time-limit or appeal, may impose a fine of up to 100 francs and may order the person summoned to be physically obliged to come and deliver his testimony"
. (5)
5.
According to Belgian case-law, (6) the refusal of a witness to answer certain questions is deemed to be a refusal to appear as a witness, even where it has been established that his testimony would be such as to incriminate himself or a third party.
Such a refusal is punishable under Article 80 of the Code of Criminal Procedure, which accordingly establishes not only an obligation to appear as a witness but also an obligation to give evidence.
(7)
B ─Luxembourg law
6.
Under Luxembourg law, professional secrecy is governed by Article 458 of the Criminal Code.
Save for the amount of the fine, the text of that provision is identical to Article 458 of the Belgian Criminal Code.
It is worded as follows:
‘Medical practitioners, surgeons, health officers, apothecaries, midwives and all other persons who, owing to their status or profession, obtain knowledge of secrets entrusted to them and disclose them otherwise than if called upon to give evidence in legal proceedings or before a parliamentary committee of inquiry or unless required to disclose them by law, shall be liable to imprisonment of eight days to six months and a fine varying from 20 000 to 200 000 francs.’
7.
In contrast to Belgian law, Luxembourg law imposes an obligation of professional secrecy on persons engaged in professional activities in the banking and financial sectors. (8)
Article 41 of the Law of 5 April 1993 on the financial sector
(9) provides the basis for that obligation.
It states:
‘1.
Directors, members of the governing and supervisory boards, managers, employees and other persons employed by the credit institutions and other professions of the financial sector mentioned in Part I hereof, shall be required to maintain secrecy in regard to information entrusted to them in the course of their professional business.
Disclosure of such information is an offence punishable under Article 458 of the Criminal Code.
2.
The duty to maintain secrecy shall cease when disclosure of information is authorised or required by or pursuant to a legislative provision even if it predates the enactment hereof.
...
6.
Anyone bound by the obligation to maintain secrecy referred to in paragraph 1 hereof, who lawfully discloses information covered by that obligation, shall not incur criminal or civil liability on the sole ground of that disclosure.’
II ─ Facts and procedure
8.
It is apparent from the documents before the Court
(10) that the referring judge is conducting a judicial investigation against Mr der Weduwe.
The investigation concerns the offences of forgery, use of forged documents, fiscal forgery, use of forged tax documents, money-laundering and failure to observe the obligation to declare income prescribed by Articles 305 to 310 of the Belgian Law on income tax.
9.
Mr der Weduwe is a Netherlands national, resident in Luxembourg.
He was previously employed by the Banque UCL (BUCL) and is currently engaged in professional activities for the Rabobank, both of which are banking institutions situated on the territory of the Grand Duchy of Luxembourg.
Mr der Weduwe is suspected of recruiting and visiting clients in Belgium with a view to persuading them to place money in deposits or negotiable securities with his employers.
In the course of his activities, he purportedly collected money from Belgian clients and transferred it to Luxembourg.
He allegedly also took coupons pertaining to negotiable securities to the Grand Duchy for Belgian clients in order to place the proceeds of those coupons with his employer.
The disputed facts concern the period from October 1993 to May 1999.
10.
In the course of the investigation, the referring judge questioned Mr der Weduwe on the manner in which he prospected for clients and the manner in which the negotiable securities were transferred to Luxembourg.
However, Mr der Weduwe refused to answer the questions put to him by the investigating judge.
As justification for that refusal, he invoked the obligation of professional secrecy which Luxembourg law imposes on persons engaged in professional activities in the banking sector.
In those circumstances, the referring judge decided to place Mr der Weduwe under arrest.
He has now been conditionally released by order of the Hof van Beroep, Kamer van Inbeschuldigingstelling, te Antwerpen (Indictments Division of the Antwerp Court of Appeal) (Belgium).
11.
As part of the investigation, the referring judge also wishes to hear Mr Troch as a witness.
Mr Troch is a Belgian national, resident in Luxembourg, who worked at the BUCL where he was in charge of the arbitrage office, investment funds, international credits and private banking.
Mr Troch has already been questioned by the Belgian police.
However, he refused to answer the questions put to him, invoking the provisions of Luxembourg law relating to banking secrecy.
12.
The referring judge states that Mr der Weduwe and Mr Troch have not, at any time, invoked their right to remain silent.
They have expressly based their refusal to answer questions on Luxembourg banking secrecy. (11)
13.
In his order for reference, the investigating judge explains that the Luxembourg legislation on banking secrecy constitutes a serious impediment to the collection of evidence. (12)
In his view, there is a conflict of law between the provisions of Belgian law establishing an obligation to give evidence and the provisions of Luxembourg law prescribing an obligation of professional secrecy.
That situation gravely impedes the proper operation of the Belgian judicial system because, in order to avoid liability for breach of banking secrecy, Luxembourg bankers prefer to refuse to give evidence in Belgium and, accordingly, to incur a fine under Article 80 of the Belgian Code of Criminal Procedure.
14.
In those circumstances, the referring judge is uncertain whether Article 59 of the EC Treaty (now, after amendment, Article 49 EC), which prohibits restrictions on freedom to provide services within the European Community, does not preclude the Luxembourg legislation on banking secrecy from having extraterritorial scope.
15.
The investigating judge refers to the judgment of the Court in the
Alpine Investments
case. (13)
He observes that, in that judgment, the Court held that Article 59 of the Treaty concerned not only restrictions on freedom to provide services imposed by the host Member State, but also restrictions resulting from legislation in the Member State of origin.
In that regard, the Court held that Article 59 of the Treaty prohibits the Member State of origin from enacting a measure which imposes restrictions on economic agents established on its territory in respect of the provision of services to recipients located in another Member State. (14)
16.
The referring judge considers that, in the present case, the extraterritorial validity of the Luxembourg banking secrecy laws constitutes an
"unreasonable impediment"
to the free provision of financial services. (15)
He explains that Luxembourg bankers who exercise their right to provide services freely on Belgian territory find themselves confronted with a dilemma since they must necessarily act in contravention of either the Belgian legislation concerning the obligation to give evidence (Article 80 of the Code of Criminal Procedure), or the Luxembourg rules on banking secrecy (Article 41 of the 1993 Law).
According to the referring judge, that conflict of law also results in unequal treatment of banks and clients depending on their nationality and place of establishment.
III ─ The questions referred to the Court
17.
Consequently, the investigating judge at the Rechtbank van eerste aanleg te Turnhout decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
"Must Article 49 EC (formerly Article 59 of the Treaty) be interpreted to mean that:
where a credit institution authorised in a Member State in which breaches of banking secrecy are a criminal offence operates, under the freedom to provide services, in another Member State where there is no analogous banking secrecy,
(1)
that provision of the Treaty does not preclude a legislative provision of the host Member Statepursuant to which employees of the credit institution concerned are required to
give evidence
in criminal proceedings concerning services provided by them, under the freedom to provide services, in the territory of the host Member State in circumstances in which employees of credit institutions of the host Member State are under a like obligation to give evidence as witnesses;
(2)
that provision does not preclude a legislative provision of the host Member Statepursuant to which employees of the credit institution concerned who, when interviewed as
suspects
, choose not to rely on their right to remain silent, may as suspects make a statement in criminal proceedings concerning services provided by them, under the freedom to provide services, in the territory of the host Member State in circumstances in which employees of credit institutions established in the host Member State have the same right to make a statement as suspects, where they do not or do not wish to rely on their right to remain silent;
(3)
that provision precludes a legislative provision of the Member State of origin pursuant to which employees of the credit institution concerned may be rendered criminally and civilly liable if, in the context of a criminal investigation conducted in a host Member State (see points 1 and 2) (in this case Belgium), theygive evidence
concerning services provided by them in the territory of the host Member State under the freedom to provide services;
(4)
that provision precludes a legislative provision of the Member State of origin pursuant to which employees of the credit institution concerned may be rendered criminally and civilly liable if, in the context of a criminal investigation conducted in a host Member State (see points (1) and (2); in this case the Kingdom of Belgium), they make a statement as
suspects
concerning services provided by them in the territory of the host Member State (in this case Belgium) under the freedom to provide services, whilst at the same time not relying or not wishing to rely on the right to remain silent.
"
IV ─ Subject-matter of the questions submitted to the Court
18.
The order for reference from the investigating judge at Turnhout raises two sets of questions.
19.
The first set of questions relates to the Belgian legislation on giving evidence in legal proceedings.
The referring judge asks whether Article 59 of the Treaty permits a host Member State to apply a national provision requiring persons engaged in professional activities in the banking sector, who are summoned as witnesses in the course of a judicial investigation, to disclose information covered by an obligation of professional secrecy under the laws of their Member State of origin. (16)
The referring judge also asks whether Article 59 of the Treaty precludes such a provision in cases where the persons concerned are summoned as suspects and do not invoke their right to remain silent. (17)
20.
The second set of questions relates to the Luxembourg legislation on banking secrecy.
It seeks to determine whether Article 59 of the Treaty precludes a Member State, which imposes an obligation of professional secrecy on persons engaged in professional activities in the banking sector, from adopting a measure which prohibits those persons from disclosing information covered by that obligation of secrecy to the legal authorities in another Member State, by putting their criminal and civil liability in issue. (18)
V ─ Written observations submitted to the Court
21.
In the course of the written procedure, three interveners submitted observations to the Court: Mr der Weduwe, the Kingdom of Belgium and the Commission of the European Communities.
22.
Mr der Weduwe submits that the reference for a preliminary ruling is inadmissible.
He advances three lines of argument in support of his contention.
First, the referring judge is not a
"court or tribunal"
within the meaning of Article 234 EC.
The investigating judge does not issue any judicial decision in respect of the suspects or the witnesses.
He is responsible solely for collecting the evidence to allow the trial courts to give judgment in full knowledge of the facts.
Upon completion of the investigation, the investigating judge sends the file to the public prosecutor's office, which decides whether to bring an action against the parties concerned.
It is then for the court in chambers (in the first instance) and the indictments division (on appeal) to decide whether to refer the case to the trial courts for judgment. (19)
Second, the questions referred to the Court do not have to be answered in order to settle the case.
In so far as the referring judge is not required to give
"judgment"
within the meaning of Article 234 EC, the Court's ruling would only serve as preventive legal advice for the public prosecutor's office and, as the case may be, the trial courts before which the case is brought. (20)
Third, the order for reference does not adequately describe the factual and legal background to the questions. (21)
23.
In its written observations, the Belgian Government expressed its view on the merits of the matter.
The Kingdom of Belgium submits that the obligation to give evidence laid down in Article 80 of the Code of Criminal Procedure is compatible with Article 59 of the Treaty.
The obligation to give evidence does not in any way discriminate on the ground of nationality and is not an impediment to the free provision of services.
In any event, such an obligation is justified by overriding reasons of public policy (crime and tax fraud control) and is proportionate to the aims which it pursues.
(22)
By contrast, the Belgian Government considers that, were the Luxembourg legislation to have extraterritorial validity, (23) it would be contrary to Community law.
If that were the case, the Luxembourg laws on banking secrecy would be discriminatory and liable to obstruct the free provision of services in Belgium.
Persons engaged in professional activities in the banking sector would find themselves in an impossible legal situation, since they could not at the same time respect both the obligation to give evidence prescribed by Belgian law and the obligation of professional secrecy imposed on them by Luxembourg law.
Moreover, the Luxembourg legislation is not justified by any overriding reason of public policy, within the meaning given to that term by the case-law. (24)
24.
The Commission considers that the four questions referred for a preliminary ruling must be answered together.
In its view, the provisions of Belgian and Luxembourg law are not such as to obstruct the free provision of services.
They only take effect where a provider of services is suspected of being involved in unlawful activities.
That situation is too far removed from the normal provision of services to be covered by the prohibition laid down in Article 59 of the Treaty.
The Commission observes that the referring judge is confronted with a problem regarding the conflict between provisions of criminal law in two different Member States.
It points out that, in principle, obstacles to the proper functioning of the single market which arise out of the disparity between provisions of criminal law must be resolved by harmonisation measures.
Since no harmonisation measures have been adopted in regard to the present matter, the Member States are free to determine the rules applying to persons engaged in activities on their territory. (25)
25.
The Luxembourg Government did not make an intervention in the written procedure.
Instead, it submitted oral observations, to which I will return in the course of this Opinion.
IV ─ Analysis
26.
At the outset, I consider it pertinent to reiterate the principles relating to the Court's jurisdiction under Article 234 EC.
27.
According to settled case-law, (26) the procedure provided for in Article 234 EC is an instrument of cooperation between the Court of Justice and national courts.
In the context of that cooperation, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine both the need for a preliminary ruling and the relevance of the questions which it submits to the Court. (27)
That principle is justified by the fact that the national court is alone in having a direct knowledge of the facts of the case and of the applicable national law. (28)
Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. (29)
However, the Court has also held that, in exceptional cases, it is for the Court of Justice to examine the conditions in which the case has been referred to it by the national court in order to confirm its own jurisdiction. (30)
In the Court's view, the spirit of cooperation which must prevail in the preliminary reference procedure requires the national court to have regard to the function entrusted to the Community jurisdiction. (31)
That function is to assist in the administration of justice in the various Member States and not to deliver advisory opinions on general or hypothetical questions. (32)
28.
The Court also considers that, in order to be able to give an interpretation which proves useful to the resolution of the case at issue, it is advisable that, prior to making the reference, the national court establish the facts in the case and settle any questions of purely national law. (33)
Similarly, it is essential for the national court to explain the reasons why it considers that a reply to its questions is necessary. (34)
29.
Inasmuch as it is not the function of the Court of Justice to deliver advisory opinions, the Court systematically refuses to rule on questions submitted by a national court, answers to which are not objectively required in order to settle the dispute in that action. (35)
Accordingly, the Court refuses to rule on preliminary references where it finds that the provisions of Community law are not applicable to the dispute in question. (36) It also refuses to give a ruling where its answer would not have any bearing on the main proceedings
(37) or where the interpretation sought has no relevance to the outcome of the dispute. (38) Finally, the Court refuses to give a preliminary ruling where it is not certain that the national court will apply the disputed national legislation when deciding the case. (39)
30.
The questions submitted by the investigating judge at Turnhout should be considered in the light of the above principles.
31.
In the present case, the investigating judge wishes to verify whether the Belgian legislation on giving evidence in legal proceedings is compatible with Community law. (40)
He also seeks to ascertain whether the Luxembourg legislation on banking secrecy is compatible with Community law.
32.
The referring judge assumed that the Luxembourg legislation has a specific extraterritorial effect.
In his view, the 1993 Law prohibits Luxembourg bankers from disclosing information covered by banking secrecy to the judicial authorities of another Member State.
33.
In that regard, it should be remembered that Article 234 EC is based on a clear separation of functions between the Court of Justice and the national courts. (41)
The Court of Justice considers that, in the system of cooperation established by Article 234 EC, it is not for the Court to verify whether a national court has correctly interpreted its own law or whether the national law to which it refers is relevant to the dispute in the main proceedings. (42)
That principle is justified by the fact that the national court is alone in having direct knowledge of the national law applicable to the dispute.
34.
However, that principle cannot be applied without qualification where a national court seeks to ascertain whether legislation of
another
Member State is compatible with Community law.
In such a case, the referring judge is required to identify and interpret legal provisions which do not form part of his own legal system.
In contrast to his position in the
"classic"
preliminary reference procedure, the referring judge seldom has direct and exhaustive knowledge of the national law applicable to the dispute.
Consequently, in my view, the Court of Justice
"must display special vigilance when ... a question is referred to it with a view to permitting the national court to decide whether the legislation of another Member State is in accordance with Community law"
. (43)
The Court must satisfy itself that the description of the national legal framework is a full and faithful representation of the rules in force in the Member State from which the legislation at issue emanates.
In other words, the Court must ensure that it is in possession of all the information needed to avoid giving an advisory opinion on a hypothetical question.
35.
Now, in the present case, it is apparent from the documents before the Court that the questions referred to it are based on an interpretation of Luxembourg law which is seriously disputed by the intervening parties.
36.
In its written observations, the Belgian Government supplied the following information.
37.
The Kingdom of Belgium points out that both Article 41 of the 1993 Law and Article 458 of the Luxembourg Criminal Code provide for an exception to the obligation of professional secrecy.
Under those provisions, banking secrecy can be set aside where the banker is called upon to give evidence in legal proceedings, or where the disclosure of information covered by banking secrecy is required or authorised by law. (44)
38.
The Belgian Government explains that the question of the extraterritorial validity of the Luxembourg legislation is highly controversial. (45)
Article 458 of the Criminal Code and Article 41 of the 1993 Law are open to three different interpretations.
According to the first interpretation, the principle of banking secrecy is considered to have no extraterritorial effect.
Accordingly, the Luxembourg authorities may only impose sanctions on bankers established on their territory when the disclosure of information covered by banking secrecy occurs on the territory of the Grand Duchy.
By contrast, the disclosure of information outside Luxembourg territory is not punishable under Luxembourg law.
According to the second interpretation, the Luxembourg legislation has an extraterritorial effect with regard to both the principle of banking secrecy and to exceptions to that principle.
On that interpretation, bankers established in Luxembourg have a duty to respect banking secrecy not only on Luxembourg territory but also on the territory of other Member States.
However, where they are called upon to give evidence before the judicial authorities of another Member State, Luxembourg bankers may disclose information covered by the rules on banking secrecy.
In other words, Article 458 of the Luxembourg Criminal Code and Article 41 of the 1993 Law are interpreted in such a way that the obligation to give evidence prescribed by the legislation of another Member State causes the obligation of banking secrecy to be waived when giving evidence before the judicial authorities of that State.
Finally, according to the third interpretation, the Luxembourg legislation has an extraterritorial effect only in so far as the principle of banking secrecy is concerned.
That would mean that bankers established in Luxembourg have a duty to respect the obligation of banking secrecy outside Luxembourg territory.
However, they are not authorised to disregard the rules on banking secrecy when they are called upon to give evidence before the judicial authorities of another Member State.
They are permitted to disclose information covered by banking secrecy solely to the Luxembourg judicial authorities. (46)
39.
In its written observations, the Belgian Government proposes that the first of the interpretations discussed above is correct. (47)
It submits that a banker may not be prosecuted by the Luxembourg authorities if the disclosure of information covered by banking secrecy takes place outside the territory of the Grand Duchy.
40.
In any event, in its written observations the Kingdom of Belgium observes that it is only according to the third of the interpretations discussed above that the Luxembourg legislation presents any difficulties. (48)
On the first interpretation, the principle of banking secrecy does not apply on Belgian territory.
In those circumstances, Mr der Weduwe and Mr Troch are free to testify before the investigating judge at Turnhout.
Similarly, on the second interpretation, the obligation to give evidence prescribed by Article 80 of the Code of Criminal Procedure is a ground which justifies waiving the obligation of banking secrecy.
In that case, Mr der Weduwe and Mr Troch are also free to testify before the investigating judge at Turnhout.
41.
The Kingdom of Belgium observes that if either of those two interpretations were to be accepted, the preliminary reference by the investigating judge would
"not call for a reply"
.
It would concern a
"provision [of law] which is not applicable in the present case"
. (49)
42.
In the view of the Belgian Government, only the third of the interpretations discussed above could pose any problems in respect of Article 59 of the Treaty.
On that interpretation, Mr der Weduwe and Mr Troch would be under an obligation not to disclose information covered by banking secrecy to the investigating judge at Turnhout.
The Kingdom of Belgium considers that, in that case,
"it is for the Court of Justice to state whether such an interpretation [of Luxembourg law] is compatible with Community law"
. (50)
43.
The Grand Duchy of Luxembourg considers that the third interpretation cannot be accepted.
44.
At the hearing, the Grand Duchy of Luxembourg stated that its national courts have not yet resolved the issue of the extraterritorial effect of banking secrecy.
It also observed that the Luxembourg courts will probably never be called upon to settle that controversy.
In its view, factual situations giving rise to that type of dispute are too rare and too atypical ever to come before the Luxembourg courts.
45.
Given the lack of (existing or foreseeable) case-law on that issue, the Luxembourg Government has set out the interpretation which, in its opinion, ought to be accepted.
46.
The Grand Duchy of Luxembourg considers that the Luxembourg legislation on banking secrecy does not prohibit the persons concerned from disclosing information covered by banking secrecy where they are summoned to appear as witnesses before the judicial authorities of another Member State.
The Grand Duchy justifies its position in the following way.
47.
First, the Luxembourg Government submits that the principle of banking secrecy does have extraterritorial scope.
In its view, the Luxembourg legislation would be totally ineffective if it permitted persons to disclose information covered by banking secrecy outside the territory of the Grand Duchy.
In that case, bankers would only have to leave Luxembourg territory to be able to disclose with impunity information which would otherwise be covered by banking secrecy.
It follows that, subject to the exceptions provided for by Luxembourg law, the disclosure of information covered by banking secrecy outside the territory outside the territory of the Grand Duchy constitutes an offence liable to criminal prosecution by the Luxembourg authorities. (51)
48.
Second, the Luxembourg Government states that the exceptions to banking secrecy also have extraterritorial effect.
However, the reasons underlying that interpretation are different from those put forward by the Kingdom of Belgium.
The Kingdom of Belgium submitted that the obligation to give evidence laid down in Article 80 of the Belgian Code of Criminal Procedure was capable of constituting an exception to the obligation of banking secrecy established by Article 458 of the Luxembourg Criminal Code and Article 41 of the 1993 Law. (52)
The Luxembourg Government considers that accepting that interpretation would be tantamount to accepting that one State may establish exceptions to the criminal laws of another State.
According to the Grand Duchy of Luxembourg, such an interpretation would be in clear conflict with the general principles of international criminal law.
The Luxembourg Government considers that exceptions to banking secrecy may only be based on provisions of the Luxembourg Criminal Code.
The Grand Duchy observes that Article 458 of the Luxembourg Criminal Code and Article 41 of the 1993 Law provide that persons are permitted to disclose information covered by banking secrecy where they are called upon to give evidence before the
"judicial authorities"
.
The Luxembourg Government points out that the term
"judicial authorities"
covers not only the Luxembourg judicial authorities, but also the authorities of other Member States. (53)
49.
It follows from all the foregoing observations, that the questions referred to the Court by the investigating judge are based on a premiss which is seriously disputed by the intervening parties.
50.
The referring judge assumed that under Luxembourg law Mr der Weduwe and Mr Troch are prohibited from disclosing information covered by banking secrecy to the Belgian judicial authorities.
However, it is clear from the observations submitted by the Luxembourg Government that such an interpretation cannot be accepted.
The Grand Duchy considers that Article 458 of the Luxembourg Criminal Code and Article 41 of the 1993 Law do not prohibit persons from disclosing information covered by banking secrecy when they are summoned to appear as witnesses before the judicial authorities of another Member State.
51.
In those circumstances, I consider that the questions referred to the Court are purely hypothetical.
The Court cannot be certain that its ruling will be applied in the main proceedings.
In fact, the preliminary ruling would only be applied if one particular interpretation of Luxembourg law were to be accepted (namely, the third interpretation discussed at paragraph 38 of this Opinion).
However, it is apparent from the information before the Court that such an outcome is unlikely.
52.
Consequently, I advise the Court to declare the reference for a preliminary ruling inadmissible.
In my opinion, if the Court were to agree to answer the questions submitted to it, it would have misinterpreted its function under Article 234 EC, since its answer would constitute an advisory opinion on a hypothetical question.
VII ─ Conclusion
53.
In the light of the foregoing, I propose that the Court declare:
The questions referred by the investigating judge at the Rechtbank van eerste aanleg te Turnhout (Belgium) are inadmissible.
(1) .
(2)
The actual amount of the fine provided for in Article 458 of the Criminal Code ranges from BEF 20 000 to 100 000 (see the written observations of the Kingdom of Belgium, paragraph 40).
(3)
See the order for reference (p. 4) and the written observations of the Kingdom of Belgium (paragraphs 41 and 42).
(4)
Cass., 25 October 1978, Pas., 1979, I, 237.
(5)
The current maximum fine provided for in Article 80 of the Code of Criminal Procedure is BEF 20 000 (see the written observations of the Kingdom of Belgium, paragraph 45).
(6)
Cass., 10 July 1916, Pas., 1917, I, p. 195.
(7)
Written observations of the Kingdom of Belgium (paragraph 44).
(8)
Otherwise referred to as
"Luxembourg banking secrecy"
or
"banking secrecy"
.
(9)
Mémorial
A 1993, p. 462 (hereinafter
"the 1993 Law"
).
(10)
See order for reference (pp. 1 to 3) and the written observations of the Kingdom of Belgium (paragraphs 15 to 24).
(11)
Order for reference (pp. 3 and 4).
(12)
Ibid. (p. 6).
(13)
Case C-384/93
Alpine Investments
[1995] ECR I-1141.
(14)
Ibid. (paragraph 30).
(15)
Order for reference (p. 7).
(16)
First question.
(17)
Second question.
(18)
In the third and fourth questions, the referring judge distinguishes between whether the Luxembourg banker is summoned to appear as a witness or as a suspect. However, that distinction is clearly inconsistent with the grounds of the order for reference. In his order for reference (p. 6), the investigating judge points out that, under Belgian law, the situation of the witness
"applies,
mutatis mutandis
, to the Luxembourg banker who is suspected of an offence and chooses not to rely on his right of silence"
. In those circumstances, the third and fourth questions must be understood as referring exclusively to the situation of a Luxembourg banker summoned to appear as a
witness
.
(19)
Written observations of Mr der Weduwe (pp. 2 and 5 of the French version).
(20)
Ibid. (p. 5 of the French version).
(21)
Ibid. (pp. 5 to 9 of the French version).
(22)
Written observations of the Kingdom of Belgium (paragraphs 60 to 83).
(23)
On the issue of the extraterritorial validity of the Luxembourg legislation, see paragraphs 38 to 48 of this Opinion.
(24)
Written observations of the Kingdom of Belgium (paragraphs 93 to 127).
(25)
Written observations of the Commission (paragraphs 8 and 14).
(26)
Since Case 16/65
Schwarze
[1965] ECR 877.
(27)
See,
inter alia
, Case C-379/98
PreussenElektra
[2001] ECR I-2099, paragraph 38, and Case C-35/99
Arduino
[2002] ECR I-1529, paragraph 24.
(28)
See, on that point, Case 83/78
Pigs Marketing Board
[1978] ECR 2347, paragraph 25.
(29)
See,
inter alia
, Case C-415/93
Bosman
[1995] ECR I-4921, paragraph 59;
PreussenElektra
, cited above, paragraph 38 and
Arduino
, cited above, paragraph 24.
(30)
Case 244/80
Foglia
v
Novello
[1981] ECR 3045, paragraph 21.
(31)
Ibid., paragraph 20. See, also, Case C-378/93
La Pyramide
[1994] ECR I-3999, paragraph 11.
(32)
See,
inter alia
,
Foglia
, cited above, paragraph 18; Case 149/82
Robards
[1983] ECR 171, paragraph 19 and Case C-458/93
Saddik
[1995] ECR I-511, paragraph 17.
(33)
See,
inter alia
, Joined Cases 36/80 and 71/80
Irish Creamery Milk Suppliers Association and Others
[1981] ECR 735, paragraph 6.
(34)
See,
inter alia
, Joined Cases 98/85, 162/85 and 258/85
Bertini and Others
[1986] ECR 1885, paragraph 6.
(35)
Foglia
, cited above, paragraph 18; Case C-18/93
Corsica Ferries
[1994] ECR I-1783, paragraph 14; Joined Cases C-422/93, C-423/93 and C-424/93
Zabala Erasun and Others
[1995] ECR I-1567, paragraph 29; Case C-96/94
Centro Servizi Spediporto
[1995] ECR I-2883, paragraph 45; Case C-291/96
Grado and Bashir
[1997] ECR I-5531, paragraph 16; Case C-314/96
Djabali
[1998] ECR I-1149, paragraph 19; and the orders in Case C-286/88
Falciola
[1990] ECR I-191, paragraph 9; Case C-428/93
Monin Automobiles
[1994] ECR I-1707, paragraph 15 and Case C-361/97
Nour
[1998] ECR I-3101, paragraph 15.
(36)
See,
inter alia
, Case 54/72
FOR
v
VKS
[1973] ECR 193, paragraph 9; Case 51/74
Van der Hulst
[1975] ECR 79, paragraphs 38 to 42; and Case 172/84
Celestri
[1985] ECR 963, paragraphs 12 to 16.
(37)
Grado and Bashir
, cited above, paragraphs 15 and 16.
(38)
See,
inter alia
, Case C-343/90
Lourenço Dias
[1992] ECR I-4673, paragraphs 22 and 23 and Case C-297/93
Grau-Hupka
[1994] ECR I-5535, paragraph 18.
(39)
Case C-83/91
Meilicke
[1992] ECR I-4871, paragraphs 27 to 30;
Centro Servizi Spediporto
, cited above, paragraphs 43 to 46; Case C-134/95
USSL No 47 Di Biella
[1997] ECR I-195, paragraphs 13 to 16 and
Monin Automobiles
, cited above, paragraphs 13 to 15.
(40)
Contrary to the requirements established by the case-law (Bertini
, cited above, paragraph 6;
Lourenço Dias
, cited above, paragraph 19 and
La Pyramide
, cited above, paragraph 13), the referring judge has not explained why he considers that an answer to the first two questions is necessary to decide the case. On the contrary, it appears from the grounds of the order for reference that the investigating judge is essentially ─ if not exclusively ─ concerned with whether the Luxembourg legislation on banking secrecy complies with Community law (see paragraphs 13 to 16 of this Opinion). In those circumstances, it is not clear that the first two questions can be declared admissible. However, since I advise the Court to declare all the questions inadmissible on other grounds (see paragraphs 35 et seq. of this Opinion), it is not necessary to discuss that point in any greater detail.
(41)
See,
inter alia
, Case 6/64
Costa
v
ENEL
[1964] ECR 565, page 593; Case 5/77
Tedeschi
v
Denkavit
[1977] ECR 1555, paragraph 17; Case 104/77
Oehlschläger
[1978] ECR 791, paragraph 4; Case C-235/95
Dumon and Froment
[1998] ECR I-4531, paragraph 25 and Joined Cases C-175/98 and C-177/98
Lirussi and Bizarro
[1999] ECR I-6881, paragraph 37.
(42)
See,
inter alia
, Case C-177/94
Perfili
[1996] ECR I-161, paragraphs 10 to 19 and paragraphs 16 and 17 of my Opinion in that case.
(43)
Foglia
, cited above, paragraph 30.
(44)
Written observations of the Kingdom of Belgium (paragraph 51).
(45)
Ibid. (paragraphs 52 to 59 and 84 to 92).
(46)
It must be borne in mind that, in his order for reference, the investigating judge at Turnhout did not refer to the controversy regarding the extraterritorial effect of Luxembourg law. He also did not explain his decision to base his questions on the third interpretation of the Luxembourg laws on banking secrecy.
(47)
Written observations of the Kingdom of Belgium (paragraphs 59, 87 and 90).
(48)
Ibid. (paragraphs 90 and 91).
(49)
Ibid. (paragraph 92).
(50)
Ibid. (paragraph 88).
(51)
The Luxembourg Government stated that the legal basis for the prosecution of that offence is Article 7b of the Luxembourg Code of Criminal Procedure.
That provision states that:
"where any act constituting an essential element of an offence is carried out in the Grand Duchy of Luxembourg, that offence is deemed to be committed on the territory of the Grand Duchy of Luxembourg"
.
The Luxembourg Government explained that, pursuant to that provision, it is not necessary that all the essential elements of the offence are committed in Luxembourg in order for the offence to incur criminal sanctions in Luxembourg.
It is only necessary for one of the essential elements to be committed in Luxembourg.
As regards banking secrecy, one of the essential elements of the offence is obtaining knowledge of the information covered by banking secrecy.
In so far as that knowledge is obtained in an establishment located in Luxembourg, it is irrelevant to the prosecution of that breach of banking secrecy that the disclosure of that information took place outside Luxembourg territory.
(52)
See paragraph 38 of this Opinion (see, also, the written observations of the Kingdom of Belgium, paragraph 39).
(53)
In fact, the Luxembourg Government stated that the term
"judicial authorities"
includes all foreign judicial authorities provided that they are deemed to be
"equivalent"
to the Luxembourg judicial authorities, in the light of the principles of the rule of law and the separation of powers. The Luxembourg Government also, however, explained that as far as the judicial authorities of other Member States are concerned, that condition is clearly met on account of the institutional guaranties provided by membership of the European Union.