Article 7 - Respect for private and family life
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling – Administrative cooperation in the field of taxation – Directive 2011/16/EU – Exchange of information on request – Decision ordering a lawyer to communicate information – Legal professional privilege – Article 7 and Article 52(1) of the Charter of Fundamental Rights of the European Union
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
46) By the first two questions, which should be considered together, the referring court asks, in essence, whether Article 7 of the Charter must be interpreted as meaning that legal advice given by a lawyer in company law matters falls within the scope of the strengthened protection of communications between lawyers and their clients guaranteed by that article, with the result that a decision requiring a lawyer to provide the authorities of the requested Member State – for the purposes of an exchange of information on request in accordance with Directive 2011/16 – with all the documentation and information relating to his or her relations with his or her client, concerning such legal advice, constitutes an interference with the right to respect for communications between lawyers and their clients guaranteed by that article.
47) It should be noted that Article 7 of the Charter, which recognises that everyone has the right to respect for his or her private and family life, home and communications, corresponds to Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) (judgment in Orde van de Vlaamse Balies and Others, paragraph 25).
48) In accordance with Article 52(3) of the Charter, which is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR without adversely affecting the autonomy of EU law, the Court must take into account – when interpreting the rights guaranteed by Article 7 of the Charter – the corresponding rights guaranteed by Article 8(1) of the ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (judgment in Orde van Vlaamse Balies and Others, paragraph 26).
49) As the Court has already stated, it is apparent from the case-law of the European Court of Human Rights that Article 8(1) ECHR protects the confidentiality of all correspondence between individuals and affords strengthened protection to exchanges between lawyers and their clients. Like that provision, which protects not only the activity of defence but also legal advice, Article 7 of the Charter necessarily guarantees the secrecy of that legal advice, both with regard to its content and to its existence. Individuals who consult a lawyer can reasonably expect that their communication is private and confidential. Therefore, other than in exceptional situations, those persons must have a legitimate expectation that their lawyer will not disclose to anyone, without their consent, that they are consulting him or her (judgment in Orde van Vlaamse Balies and Others, paragraph 27 and the case-law cited).
50) The specific protection that Article 7 of the Charter and Article 8(1) ECHR afford to lawyers’ legal professional privilege, which primarily takes the form of obligations on them, is justified by the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants. That fundamental role entails, on the one hand, the requirement, the importance of which is recognised in all the Member States, that any person must be able, without constraint, to consult a lawyer whose profession encompasses, by its very nature, the giving of independent legal advice to all those in need of it and, on the other, the correlative duty of the lawyer to act in good faith towards his or her client (judgment in Orde van Vlaamse Balies and Others, paragraph 28 and the case-law cited).
51) It follows from the foregoing considerations that, whatever the area of law to which it relates, legal advice given by a lawyer enjoys the strengthened protection guaranteed by Article 7 of the Charter to communications between lawyers and their clients. It follows that a decision such as that at issue in the main proceedings constitutes an interference with the right to respect for communications between lawyers and their clients guaranteed by that article.
52) The answer to the first two questions referred for a preliminary ruling is therefore that Article 7 of the Charter must be interpreted as meaning that legal advice given by a lawyer in company law matters falls within the scope of the strengthened protection of communications between lawyers and their clients guaranteed by that article, with the result that a decision requiring a lawyer to provide the authorities of the requested Member State – for the purposes of an exchange of information on request in accordance with Directive 2011/16 – with all the documentation and information relating to his or her relations with his or her client, concerning such legal advice, constitutes an interference with the right to respect for communications between lawyers and their clients guaranteed by that article.
53) By the third and fourth questions referred, which should be considered together, the referring court asks, in essence, whether Directive 2011/16 is invalid in the light of Article 7 and Article 52(1) of the Charter, in that, beyond Article 17(4), that directive does not include any provision that, first, expressly permits interference with communications between lawyers and clients in the context of the system of exchange of information on request and, second, itself defines the scope of the limitation on the exercise of the right guaranteed by Article 7 of the Charter, while providing – as follows from Article 18(1) of that directive – that the law of the Member States is to determine the extent to which a lawyer’s legal professional privilege may preclude a request for information made by the requested Member State.
54) In that respect, it is apparent, inter alia, from the reference for a preliminary ruling that the referring court has doubts as to whether Directive 2011/16 complies with Article 52(1) of the Charter, in particular in so far as that provision provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law.
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59) It follows from the foregoing considerations that, for the purposes of the exchange of information on request provided for by Directive 2011/16, the EU legislature has merely determined the obligations that the Member States have towards each other, while authorising them not to comply with a request for information if carrying out the investigations requested or collecting the information in question would be contrary to their legislation. Thus, the EU legislature has, inter alia, left it to the Member States to ensure that their national procedures for gathering information for the purposes of this exchange comply with the Charter, and in particular Article 7 thereof.
60) It follows that the fact that the system for exchange of information on request established in Section I of Chapter II of Directive 2011/16 does not include provisions relating to the protection of the confidentiality of communications between lawyers and their clients – in the context of the information gathering that is the responsibility of the requested Member State – does not mean that that directive infringes Article 7 and Article 52(1) of the Charter. Indeed, it follows from that directive that, in accordance with Article 51(1) of the Charter, it is for each Member State to guarantee, in the context of the national procedures implemented for the purposes of that information gathering, the strengthened protection of communications between lawyers and their clients guaranteed by Article 7 of the Charter. Thus, each Member State must, inter alia, ensure that any limitation on the exercise of the rights guaranteed by Article 7 arising from those national procedures is ‘provided for by law’ within the meaning of Article 52(1) of the Charter.
61) In those circumstances, the answer to the third and fourth questions referred for a preliminary ruling is that the examination of the aspects to which those questions relate has not disclosed anything that could affect the validity of Directive 2011/16 in the light of Article 7 and Article 52(1) of the Charter.
65) In those circumstances, it should be held that, by the fifth and sixth questions referred, which should be considered together, the referring court is essentially asking whether Article 7 and Article 52(1) of the Charter must be interpreted as precluding a decision such as that described in paragraph 52 above, based on national legislation under which advice and representation by a lawyer in tax matters do not enjoy, except where there is a risk of criminal prosecution against the client, the strengthened protection of communications between lawyers and clients guaranteed by Article 7 of the Charter.
67) That being said, it should be recalled that the rights enshrined in Article 7 of the Charter are not absolute rights, but must be considered in relation to their function in society. As can be seen from Article 52(1) of the Charter, that provision allows limitations to be placed on the exercise of those rights, provided that those limitations are provided for by law, that they respect the essence of those rights and that, in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraph 134 and the case-law cited).
70) In that respect, it should be remembered that Article 7 of the Charter guarantees the confidentiality of legal advice given by a lawyer, as regards both its existence and its content. Thus, people who consult lawyers can reasonably expect their communications to remain private and confidential and, apart from exceptional situations, have confidence in the fact that their lawyers will not disclose the fact that they are consulting them to anyone without their agreement.
73) In those circumstances, it must be held that a national provision such as Article 177 of the AO and the application of that provision in the present case by means of the decision at issue, far from being confined to exceptional situations, infringe the essence of the right guaranteed by Article 7 of the Charter by reason of the very extent of the derogation from legal professional privilege that they authorise in respect of communications between lawyers and their clients.
75) In the light of the above, the answer to the fifth and sixth questions referred for a preliminary ruling is that Article 7 and Article 52(1) of the Charter must be interpreted as precluding a decision such as that described in paragraph 52 above, based on national legislation under which advice and representation by a lawyer in tax matters do not enjoy – except where there is a risk of criminal prosecution against the client – the strengthened protection of communications between lawyers and clients guaranteed by Article 7 of the Charter.
