The French Council of State prohibited lawyers from canvassing clients by means of cell-phone text messages

Conseil d’État, 6ème SSJS, 26/02/2016, 386483, Inédit au recueil Lebon

In the present case the Council of State (Conseil d’Etat) was once again required to examine whether the new commercial communication rules applicable to lawyers complied with the Directive 2006/123/EC (the ‘Services’ Directive).

The French legislation, which was already sanctioned by the Council of State as it posed a total ban on canvassing, was modified in order to comply with the ‘Services’ Directive and, henceforward, it precluded the use of any comparative or derogatory elements and canvassing by means of cell-phone text messages.

X challenged the new regulation before the Council of State which dismissed the claim.

The Council of State held that Article 24 of the ‘Services’ Directive, as interpreted by the Court of Justice of the European Union in its case C-119/08, did not preclude Member States to lay down prohibitions relating to the content or methods of commercial communications as regards regulated professions, provided that those rules were justified by overriding reasons of general interest.

Concerning the ban on comparative or derogatory elements, the Council of State held that such a ban aimed at ensuring, in particular, the independence, the dignity and the integrity of the lawyer’s profession.

Concerning the cell-phone text messages, the Council of State held that their ban was justified by their resemblance to the direct phone marketing, banned by the national legislation. Moreover, the Council of State referred to the fact that, due to their characteristics, those ’’mini-messages’’ did not allow the client to identify, locate or join the lawyer or to identify the Bar association, the law firm or the network to which the lawyer was attached.

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