Paul der Weduwe, a Netherlands national resident in Luxembourg, was previously employed by the BUCL and is currently engaged in professional activities for the Rabobank, both of which are banking institutions located in the Grand Duchy of Luxembourg.

He is suspected of having recruited and visited clients in Belgium, in the period from October 1993 to May 1999, 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.

Mr der Weduwe is currently the subject of a criminal investigation in Belgium. However, Mr der Weduwe has refused to answer the questions put to him by the investigating judge at the Rechtbank van eerste aanleg te Turnhout, invoking the obligation of professional secrecy which Luxembourg law imposes on persons engaged in professional activities in the banking sector.

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.

The investigating judge has referred questions to the Court of Justice of the European Communities on the compatibility of the Belgian legislation on giving evidence in legal proceedings and the Luxembourg legislation on banking secrecy with the principle of the freedom to provide services.

The Advocate General considers that when a national court submits questions on the compatibility of the legislation of another Member State, the Court of Justice must satisfy itself that the description of the relevant national provisions is both accurate and complete. That is because, in that type of reference procedure, the national court seldom has direct and exhaustive knowledge of the national law applicable to the dispute in question.

It is apparent from the documents before the Court in the present case that the questions submitted by the investigating judge are based on a premise which is very seriously disputed by the state of Luxembourg: the investigating judge assumes that, under Luxembourg law, Mr der Weduwe is prohibited from disclosing information covered by banking secrecy to the Belgian judicial authorities.

The Grand Duchy takes the view that Luxembourg law does not prohibit persons from disclosing information covered by banking secrecy when they are called upon to appear as witnesses before the judicial authorities in another Member State of the European Union.

In those circumstances, the Advocate General considers that the questions submitted by the Belgian court are purely hypothetical. He observes that, according to settled case-law, the function of the Court of Justice is not to provide advisory opinions on general or hypothetical questions. Consequently, he proposes that the Court declare the preliminary reference from the investigating judge at the Rechtbank van eerste aanleg te Turnhout inadmissible.

                

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