Case law Developments in PIL

Not a Brexit Story: An English LLP Cannot Provide Tax Advice in Germany through a Subsidiary

In a judgment dated 10 December 2020, the German Federal Court restricted the provision tax advice on German soil. The court ruled that advice to German clients cannot be rendered on a permanent basis through a subsidiary unless the partners possess the necessary qualifications under the German Code on Tax Consultancy. Although the case in question concerned a British LLP, it is not limited to them but applies to all partnerships from EU Member States.

A Highly Disputed Case

The ruling is especially remarkable given that the Commission had not only criticized the German Code in a letter for limiting the freedom of establishment (Article 49 TFEU), but even started legal proceedings against Germany for violation of the Treaties. The Federal Court was unmoved. It saw no incompatibility with EU law, nor a need to submit a preliminary question on its interpretation to the CJEU.

On Fundamental Freedoms

In the Federal Court’s view, a tax adviser seeking to offer consultancy services on German tax law must have the qualifications required under German law. Such restriction of the freedom of establishment (Article 49 TFEU) was justifiable by the public interest in the quality of such advice. German law would not violate Art 5(2) of the Directive on the recognition of professional qualifications either, given that the provision of services through a subsidiary is not merely “temporary and on an occasional basis”.

The Federal Court considered the German rules to be coherent and systematic, despite the many exceptions it provides for other professions, such as German notaries or banks. The Federal Court saw the latter as justified because of their limitation to ancillary services, whereas the provision of tax advice through a subsidiary would amount to a main service that required a specialisation in German tax law.

On the Conflict of Laws

From the point of view of private international law, the most remarkable part of the judgment concerns liability. The suit was brought by one of the LLP’s German competitors against one of the partners personally and sought injunctive relief in the form of ceasing and desisting from advertisements for the LLP’s subsidiary’s tax consultancy services, including its entry into the German partnership register. The Federal Court ruled that the partner could indeed be personally liable under sec. 8 of the German Act Against Unfair Competition given that he was one of the applicants of the entry into the register and had publicly advertised with it.

Assessment

The Federal Court’s ruling on EU law is to be criticised. The compatibility of the German rules on tax advice with the freedom to establishment is not as clear as outlined by the Federal Court, as highlighted by the Commission’s action against Germany. The least the Federal Court should have done is to submit a preliminary question to the CJEU.

The conflict-of-laws component demonstrates the danger partners of LLPs or similar entities run in Germany and other EU Member States. They may be personally liable for the breach of regulatory duties and the resulting violations of the law of unfair competition. In particular, this is not excluded by the limitation of liability provided under the applicable partnership law and agreed in the articles of the partnership.

The case is also interesting from a doctrinal perspective. It demonstrates that the law of unfair competition and corporate law use different connecting factors. Moreover, the issue whether regulatory duties have been violated is a “preliminary question” which is subject to a wholly different conflicts approach.

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