Judgment of the Court of Justice Grand Chamber, 8 December 2022, Orde van Vlaamse Balies and Others, C-694/20

• Date: 08 December 2022
• Year: 2022

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2. ADMINISTRATIVE COOPERATION IN THE FIELD OF TAXATION

Judgment of the Court of Justice (Grand Chamber), 8 December 2022, Orde van Vlaamse

Balies and Others, C-694/20

Link to the full text of the judgment

Reference for a preliminary ruling – Administrative cooperation in the field of taxation – Mandatory

automatic exchange of information in relation to reportable cross-border arrangements – Directive

2011/16/EU, as amended by Directive (EU) 2018/822 – Article 8ab(5) – Validity – Lawyer’s legal

professional privilege – Exemption from the reporting obligation for lawyer-intermediaries subject to legal

professional privilege – Obligation on that lawyer-intermediary to notify any other intermediary who is not

his or her client of that intermediary’s reporting obligations – Articles 7 and 47 of the Charter of

Fundamental Rights of the European Union

As regards the administrative cooperation of Member States’ national tax authorities, an amendment

to Directive 2011/16

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by Directive 2018/822 introduced a reporting obligation to the competent

authorities on intermediaries participating in potentially aggressive tax-planning cross-border tax

arrangements.

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Thus, all those who are involved in designing, marketing, organising or managing the

implementation of such arrangements, and all those who provide assistance or advice in relation

thereto and, if there are no such persons, the taxpayer him- or herself, are subject to that reporting

obligation.

According to another provision of amended Directive 2011/16,

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each Member State may take the

necessary measures to give intermediaries bound by legal professional privilege who participate in

those arrangements the right to a waiver from the reporting obligation where that obligation would

breach that legal professional privilege under national law. In such circumstances, the Member State

concerned is to ensure that those intermediaries are required to notify, without delay, any other

intermediary or, if there is no such intermediary, the relevant taxpayer of their reporting obligations.

However, intermediaries bound by legal professional privilege may be entitled to a waiver from the

reporting obligation only to the extent that they operate within the limits of the relevant national laws

that define their profession.

In order to satisfy the requirements introduced by Directive 2018/822 and to ensure that legal

professional privilege does not prevent the necessary reporting, the provisions of the Flemish

legislation on administrative cooperation in the field of taxation transposing that directive provide,

inter alia, that where an intermediary is bound by legal professional privilege, he or she must notify

the other intermediary or other intermediaries in writing, giving reasons, that he or she cannot

comply with the reporting obligation, transferring that obligation automatically to the other

intermediary or other intermediaries.

The Orde van Vlaamse Balies (Flemish Bar Association), the Belgian Association of Tax Lawyers

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and

three lawyers dispute that notification obligation on lawyers acting as intermediaries. In their

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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), as amended by Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory

automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements (OJ 2018 L 139, p. 1)

(‘amended Directive 2011/16’).

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Article 8ab(1) of amended Directive 2011/16, as inserted by Directive 2018/822.

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Article 8ab(5) of amended Directive 2011/16, as inserted by Directive 2018/822.

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A professional association of lawyers.