État du Grand-duché de Luxembourg v L.

• Jurisdiction: European Union
• Date: 25 November 2021
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

25 November 2021 (*)

(Reference for a preliminary ruling – Administrative cooperation in the field of taxation – Directive 2011/16/EU – Article 1(1), Article 5 and Article 20(2) – Request for information – Decision ordering that information be provided – Refusal to comply with the order – Penalty – ‘Foreseeable relevance’ of the requested information – Absence of identification of the taxpayers concerned individually and by name – Concept of ‘identity of the person under examination or investigation’ – Statement of reasons of the request for information – Scope – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy against the decision ordering that information be provided – Article 52(1) – Limitation – Respect for the essence of the right)

In Case C‑437/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour administrative (Higher Administrative Court, Luxembourg), made by decision of 23 May 2019, received at the Court on 31 May 2019, in the proceedings

État luxembourgeois

v

L,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Second Chamber, acting as President of the Third Chamber, J. Passer, F. Biltgen, L.S. Rossi (Rapporteur) and N. Wahl, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– L, by F. Trevisan and P. Mellina, avocats,

– the Luxembourg Government, by C. Schiltz, T. Uri and A. Germeaux, acting as Agents,

– Ireland, by M. Browne, G. Hodge, J. Quaney and A. Joyce, acting as Agents, and by S. Horan, BL,

– the Greek Government, by K. Georgiadis, M. Tassopoulou and Z. Chatzipavlou, acting as Agents,

– the Spanish Government, by S. Jiménez García, acting as Agent,

– the French Government, initially by A.-L. Desjonquères and C. Mosser, and subsequently by A.-L. Desjonquères, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and by G. Galluzzo, avvocato dello Stato,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Finnish Government, by M. Pere, acting as Agent,

– the European Commission, initially by W. Roels and N. Gossement, and subsequently by W. Roels, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 June 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 1(1), Article 5 and Article 20(2)(a) of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ 2011 L 64, p. 1).

2 The request has been made in proceedings between the État luxembourgeois (Luxembourg State) and L, a company established under Luxembourg law, concerning the legality of a financial penalty which was imposed on that company for refusing to provide certain information following a request for exchange of information between Member States in tax matters.

Legal context

EU law

3 Recitals 1, 2 and 6 to 9 of Directive 2011/16 state:

‘(1) The Member States’ need for mutual assistance in the field of taxation is growing rapidly in a globalised era. There is a tremendous development of the mobility of taxpayers, of the number of cross-border transactions and of the internationalisation of financial instruments, which makes it difficult for Member States to assess taxes due properly. This increasing difficulty affects the functioning of taxation systems and entails double taxation, which itself incites tax fraud and tax evasion, …

(2) Therefore, a single Member State cannot manage its internal taxation system, especially as regards direct taxation, without receiving information from other Member States. In order to overcome the negative effects of this phenomenon, it is indispensable to develop new administrative cooperation between the Member States’ tax administrations. There is a need for instruments likely to create confidence between Member States, by setting up the same rules, obligations and rights for all Member States.

…

(6) … To this end, this new Directive is considered to be the proper instrument in terms of effective administrative cooperation.

(7) This Directive builds on the achievements of [Council] Directive 77/799/EEC [of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15)] but provides for clearer and more precise rules governing administrative cooperation between Member States where necessary, in order to establish, especially as regards the exchange of information, a wider scope of administrative cooperation between Member States. Clearer rules should also make it possible in particular to cover all legal and natural persons in the Union, taking into account the ever-increasing range of legal arrangements, including not only traditional arrangements such as trusts, foundations and investment funds, but any new instrument which may be set up by taxpayers in the Member States.

(8) … Provision should … be made to bring about more direct contacts between services with a view to making cooperation more efficient and faster. …

(9) Member States should exchange information concerning particular cases where requested by another Member State and should make the necessary enquiries to obtain such information. The standard of “foreseeable relevance” is intended to provide for exchange of information in tax matters to the widest possible extent and, at the same time, to clarify that Member States are not at liberty to engage in “fishing expeditions” or to request information that is unlikely to be relevant to the tax affairs of a given taxpayer. While Article 20 of this Directive contains procedural requirements, those provisions need to be interpreted liberally in order not to frustrate the effective exchange of information.’

4 Article 1 of Directive 2011/16, entitled ‘Subject matter’, provides, in paragraph 1 thereof:

‘This Directive lays down the rules and procedures under which the Member States shall cooperate with each other with a view to exchanging information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Member States concerning the taxes referred to in Article 2.’

5 Article 3 of that directive, entitled ‘Definitions’, states:

‘For the purposes of this Directive the following definitions shall apply:

…

11. “person” means:

(a) a natural person;

(b) a legal person;

(c) where the legislation in force so provides, an association of persons recognised as having the capacity to perform legal acts but lacking the status of a legal person; or

(d) any other legal arrangement of whatever nature and form, regardless of whether it has legal personality, owning or managing assets, which, including income derived therefrom, are subject to any of the taxes covered by this Directive;

…’

6 Article 5 of that directive, entitled ‘Procedure for the exchange of information on request’, provides:

‘At the request of the requesting authority, the requested authority shall communicate to the requesting authority any information referred to in Article 1(1) that it has in its possession or that it obtains as a result of administrative enquiries.’

7 Article 20 of that directive, entitled ‘Standard forms and computerised formats’, is worded as follows:

‘1. Requests for information and for administrative enquiries pursuant to Article 5 and their replies, acknowledgements, requests for additional background information, inability or refusal pursuant to Article 7 shall, as far as possible, be sent using a standard form adopted by the Commission in accordance with the procedure referred to in Article 26(2).

The standard forms may be accompanied by reports, statements and any other documents, or certified true copies or extracts thereof.

2. The standard form referred to in paragraph 1 shall include at least the following information to be provided by the requesting authority:

(a) the identity of the person under examination or investigation;

(b) the tax purpose for which the information is sought.

The requesting authority may, to the extent known and in line with international developments, provide the name and address of any person believed to be in possession of the requested information as well as any element that may facilitate the collection of information by the requested authority.

…’

Luxembourg law

Law of 29 March 2013

8 Article 6 of the loi du 29 mars 2013 portant transposition de la directive 2011/16 et portant 1) modification de la loi générale des impôts, 2) abrogation de la loi modifiée du 15 mars 1979 concernant l’assistance administrative internationale en matière d’impôts directs (Law of 29 March 2013 transposing Directive 2011/16 and (1) amending the General Tax Law and (2) repealing the amended Law of 15 March 1979 on international administrative assistance in the field of direct taxation) (Mémorial A 2013, p. 756), provides:

‘At the request of the requesting authority, the Luxembourg requested authority shall communicate to it the information that is foreseeably relevant for the administration and application of the domestic legislation of the requesting Member State relating to the taxes … that it has in its possession or that it obtains as a result of administrative enquiries.’

Law of 25 November 2014

9 The loi du 25 novembre 2014 prévoyant la procédure applicable à l’échange de renseignements sur demande en matière fiscale et modifiant la loi du 31 mars 2010 portant approbation des conventions fiscales et prévoyant la procédure y applicable en matière d’échange de renseignements sur demande (Law of 25 November 2014 laying down the procedure applicable to the exchange of information on request in...