in a nutshell
On 8 December 2022, the Court of Justice of the European Union (CJEU) issued its first judgment on EU Directive No. 2018/822 of 25 May 2018, i.e. DAC 6 (for reaffirmation see previous (see news alerts). with DAC 6). The CJEU has established that legal intermediaries who are subject to the Legal Professional Privilege (LPP) may notify other intermediaries in light of their right to privacy, as protected by Article 7 of the Charter of Fundamental Rights of the European Union. It ruled that the obligation was void. Union (EU Charter).
The CJEU’s decision entails that legal intermediaries covered by the LPP will no longer be required to notify other intermediaries. However, this decision does not affect her other DAC 6 duties. In particular, if the LPP applies, the intermediary attorney must notify the relevant taxpayer (client).
While this decision is highly welcomed as it underscores the importance of the right to privacy and LPPs, the practical implications of this decision with respect to DAC 6 reporting obligations remain clearly applicable. It remains somewhat restricted.
That said, much more is expected at the level of the CJEU in the DAC 6 area. In particular, the CJEU should consider issues much more fundamental to DAC 6 as a whole. This is because he has submitted to the CJEU a new request by the Belgian Constitutional Court for a preliminary judgment involving no less than five relevant issues related to this substance. of the directive. In addition, the French National Council submitted a request for a preliminary decision on the application of the privilege. How the CJEU will address these requests will hopefully come in 2023.
- The CJEU ruled for the first time on DAC 6, holding that the legal obligations of legal intermediaries covered by the LPP (Article 8ab(5) of Directive 2011/16/EU) were null and void. Protect the confidentiality of correspondence between lawyers and their clients in light of the right to privacy set out in Article 7 of the EU Charter (not only for legal defense activities but also for legal advice). in context).
- This decision is part of a series of decisions by the CJEU that demonstrate its particular firmness with respect to the protection of personal and/or privileged data under the EU Charter (for example, the CJEU has recently restricted public access to the registry, when considering the 4th Anti-Money Laundering Directive in its decision of 22 November 2022). The message is clear. Even where the objective of the relevant European law is considered to be in the general interest, the Regulation is strictly necessary to meet the objective, considering that it violates the right to privacy. should be balanced in that there is Protected by the EU Charter.
- While the CJEU decision was highly welcomed and emphasizes the importance of privacy and rights to the LPP, it only affects certain aspects of notification obligations in the context of LPP application, not other DAC 6 reporting obligations. I won’t give In particular, legal intermediaries covered by the LPP must notify relevant taxpayers (if they are clients). Other intermediaries not covered by the LPP, or related taxpayers as the case may be, must continue to comply with her applicable DAC 6 reporting obligations.
- That said, much more is expected at the level of the CJEU in the DAC 6 area. The CJEU especially needs to consider issues more fundamental to DAC 6 as a whole. This is because the Belgian Constitutional Court has submitted to the CJEU a new request for a preliminary judgment containing no less than five relevant questions for him. In addition, the French National Council (Supreme Administrative Court) submitted a request for a preliminary decision on the compatibility of the Directive with the right to a fair trial. How the CJEU will address these requests will hopefully come in 2023.
- The CJEU’s responses to these questions could have a significant impact on the viability of the DAC 6 Directive. This is because most of the national implementing laws adopted by EU Member States, including Belgium and France, are literal implementations of the Directive itself. .
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