Congratulations to the SRA on the launch of its new Handbook.

I was hoping to have some mischief at its expense and tell its staff that they will have to start re-writing it straight away, as a result of an interesting judgement of the Court of Justice handed down a few days ago.

But after examination of the case, and of the corresponding provision in the new handbook, it looks as if the SRA will not have to make any changes after all.

Shame!

The provision in question falls under Chapter 8, Publicity.

In particular, it concerns canvassing of clients. You will see that the third outcome of the basic principle on publicity is as follows: ‘You do not make unsolicited approaches in person or by telephone to members of the public in order to publicise your firm or in-house practice or another business.’

The case before the Court of Justice (Société fiduciaire nationale d’expertise comptable v Ministre du Budget, des Comptes publics et de la Fonction publique, case C‑119/09) was brought by the professional body of French accountants against the French government because of a clause in its code of conduct, which is enacted by the French Council of State.

The clause contains a total ban on ‘any unsolicited canvassing with a view to offering their services to third parties’.

You might wonder what the Court of Justice has to do with this provision. It comes about because of the 2006 Services Directive (2006/123), which went popularly under the name of the Polish Plumbers Directive.

It was intended to open up the European services market, including professional services, to more competition – causing hysteria in some quarters that the western Member States of the EU would be deluged by unqualified Polish plumbers.

(The Poles got their own back at the time with a humorous ad from their national tourism office featuring a seductive plumber.)

Among the provisions in the Directive to encourage greater competition was Article 24, entitled ‘Commercial communications by the regulated professions’, which first of all required Member States to remove all total prohibitions on commercial communications by the regulated professions, and then effectively said that all such communications must comply with professional rules which, while respecting the core values of the profession, must also be in the public interest and proportionate.

The French accountants’ rule fell at the first hurdle, because it contained a total ban on canvassing.

The Court first defined canvassing (‘a form of communication of information intended to seek new clients’), and then said that since the rule prohibited it outright, it must be struck down.

A look at the SRA’s third outcome which I copied in full at the beginning shows that there is only a partial ban on canvassing: only unsolicited approaches in person or by telephone are forbidden.

I take this to mean that letters or e-mails, for instance, are permitted, on the basis that ‘in person’ means by personal attendance on a client and not through some remote means.

For partial bans, the core values need to be protected, and the rule must be ‘non-discriminatory, justified by an overriding reason relating to the public interest and proportionate’.

I assume that the SRA would be able to justify its partial ban on these grounds.

What is interesting about this case is that it was the professional body itself which brought the case to lift a total ban.

It is the first case to my knowledge that involves the interpretation of the parts of the Services Directive relating to professional rules.

This is usually a topic which sends shudders down the spines of lawyers and their regulators, since it allows the Court to intervene and decide what can and cannot be done in professional ethics.

Well, people like me hoping to have mischief with the new Handbook will just have to look elsewhere now.