Société fiduciaire nationale d’expertise comptable v Ministre du Budget, des Comptes publics et de la Fonction publique.
Date: 2011-04-05
18. Indeed, in that Government’s submission, whilst it is true, according to the Court’s case-law, that during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 58; and Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea  [2009] ECR I‑2949, paragraph 38), that would not be so in the main proceedings, where the application of the national legislation at issue during the period for transposition of Directive 2006/123 would not produce effects such as would, first, persist after that transposition period’s expiry and, second, be particularly serious as regards the objective pursued by that directive.
19. In that respect, it follows from the same case‑law that it is for the referring court before which the main proceedings are pending to assess whether the national provisions whose legality is challenged are liable seriously to compromise the attainment of the result prescribed by a directive. In making that assessment, the referring court must consider, in particular, whether the provisions in issue purport to constitute full transposition of the directive, as well as determining the effects in practice of applying those incompatible provisions and of their duration in time (see, in particular, Inter-Environnement Wallonie , paragraphs 46 and 47).
21. In any event, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining enjoy a presumption of relevance (see, to that effect, Case C‑210/06 Cartesio  [2008] ECR I‑9641, paragraph 67; Case C‑515/08 dos Santos Palhota and Others [2010] ECR I‑0000, paragraph 20; and Case C‑45/09 Rosenbladt [2010] ECR I‑0000, paragraph 33).
25. To establish whether Article 24 of Directive 2006/123, and particularly Article 24(1), proscribes a prohibition on canvassing such as that laid down by the national legislation at issue in the main proceedings, it is necessary to interpret that provision by reference not only to its wording but also to its purpose and context and the objective pursued by the legislation in question.
26. In that regard, it is clear from Recitals 2 and 5 in its preamble that Directive 2006/123 is intended to remove restrictions on the freedom of establishment for providers in Member States and on the free movement of services between the Member States, in order to contribute to the completion of a free and competitive internal market.
33. Therefore, as the Netherlands Government argues, commercial communication covers not only traditional advertising but also other forms of advertising and communications of information intended to obtain new clients.
43. That conclusion is consistent with that directive objective’s which is, as noted in paragraph 26 of the present judgment, the removal of restrictions on the free movement of services between Member States. Indeed, legislation of a Member State forbidding qualified accountants from any canvassing could affect professionals from other Member States more, by depriving them of an effective means of penetrating the national market in question. Such a prohibition constitutes, therefore, a restriction on the freedom to provide cross-border services (see, by analogy, Case C‑384/93 Alpine Investments  [1995] ECR I‑1141, paragraphs 28 and 38).