The obligation imposed on the lawyer to inform the other intermediaries involved is not necessary
A Union Directive establishes that all intermediaries involved in potentially aggressive cross-border tax planning (mechanisms that can lead to tax avoidance and evasion) must report these to the competent tax authorities. Those who participate in the conception, marketing, organization or management of the execution of such plans are subject to this obligation. So are those who assist them, or even the taxpayer himself.
In a judgment of December 8, 2022, the Court of Justice contradicts part of what is established by the directive, since the obligation to notify involves an interference in the right to respect communications between lawyers and their clients, guaranteed by article 7. of the Charter of Fundamental Rights.
In the recent ruling, the Court recalls from the outset that Article 7 of the Charter of Fundamental Rights of the European Union protects the confidentiality of all correspondence between individuals and offers reinforced protection in the case of exchanges between lawyers and their clients. . This specific protection of the professional secrecy of lawyers is justified by the fact that they are entrusted with a fundamental task in a democratic society, namely the defense of litigants. This mission requires that all defendants have the possibility of addressing their lawyer in complete freedom, a possibility that is recognized in all Member States. Professional secrecy also covers legal advice, both with regard to its content and its existence.
Obligation established by the Directive
The directive establishes that the intermediary lawyer, despite being subject to professional secrecy, shall notify the other intermediaries without delay of their obligations to communicate information. Therefore, it follows that the other intermediaries will acquire knowledge of the identity of the intermediary lawyer.
This notification obligation, as indicated by the CJEU, supposes an interference in the right to respect communications between lawyers and their clients, guaranteed by article 7 of the Charter of Fundamental Rights.
Failed
“From the foregoing it follows that it is appropriate to answer the question referred for a preliminary ruling that article 8 bis ter, paragraph 5, of the amended Directive 2011/16, is invalid in light of article 7 of the Charter to the extent that its application by the Member States has the consequence of imposing on the lawyer who acts as an intermediary, within the meaning of article 3, point 21, of said Directive, when he is exempt from the obligation to communicate information established in paragraph 1 of article 8 bis ter of the aforementioned Directive because it is subject to professional secrecy, the obligation to promptly notify its reporting obligations under paragraph 6 of the said Article 8 bis to any intermediary other than its client’. The sentence ends.
Other judgments of the Court of Justice of the European Union