The Court of Justice of the European Union (CJEU) ruled in the DAC6 question of the Orde van Vlaamse Balies and others (see C-694/20) that the obligation of a lawyer-intermediary to notify other non-client intermediaries involved, infringes the right to respect for communications with his or her client. Under the Belgian DAC6 legislation, an intermediary with Legal Professional Privilege (LPP) is required to notify another involved intermediary, or in the absence of such intermediary, the relevant taxpayer, that it is unable to comply with its reporting obligation due to its LPP.
The context
Following appeals of Belgian bar associations, the Belgian Constitutional Court referred the question of LPP-notification requirement by lawyer-intermediaries based on Article 8ab(5) of amended Directive 2011/16 (as inserted by Directive 2018/822 (i.e., DAC6)) to the CJEU. This Article enables Member States to give intermediaries bound by LPP the right to a waiver from filing a reportable cross-border arrangement, provided that the Member State requires such intermediaries to notify, without delay, any other intermediary or, if there is no such intermediary, the relevant taxpayer, of the reporting obligation. The Article was correspondingly transposed into Belgian national legislation and encompasses the obligation of a lawyer-intermediary to notify other involved intermediaries that are not its client.
The judgement of the CJEU
In its judgement, the CJEU observed that the aim of DAC6 is to combat aggressive tax planning and to prevent the risk of tax avoidance and evasion, which are objectives of general interest recognised by the EU. Measures aiming to serve such objectives can limit fundamental rights and freedoms, but, based on the principle of proportionality, they must be appropriate and necessary to meet their legitimate objectives.
The CJEU concluded that the obligation to notify another involved intermediary interferes with the right to respect for communication between lawyers and their clients. However, this cannot be justified because the measure is not necessary. Accordingly, Article 8ab(5) of amended Directive 2011/16 infringes the right to respect for communication between a lawyer and its client, guaranteed under Article 7 of the Charter of Fundamental Rights of the EU, in so far as it provides that a lawyer-intermediary bound by LPP is required to notify any another intermediary that is not its client about its DAC6 reporting obligation. The Article is therefore invalid.
Conclusion
The current judgement addressed the implications of LPP-notification for lawyer-intermediaries, but it should similarly apply to other DAC6 intermediaries with LPP, such as tax advisors and accountants. This conclusion, however, is yet to be confirmed in the case of the Belgian Association of Tax Lawyers and Others (see C-623/22 ). In this second DAC6 case, the Belgian Constitutional Court extended the scope of the above question to other intermediaries with LPP, incl. tax advisors and accountants. Furthermore, it seeks answers to other fundamental questions, such as the aspects of clarity and preciseness of the DAC6 legislation as well as the proportionality of the DAC6 measure (see our previous news item: Belgian Constitutional Court decision concerning DAC6 ).
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