CJEU Joined Cases C-245/19 and C-246/19 / Judgment

État luxembourgeois v B and Others
Policy area
Taxation
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
06/10/2021
ECLI (European case law identifier)
ECLI:EU:C:2020:795
  • CJEU Joined Cases C-245/19 and C-246/19 / Judgment

    Key facts of the case:

    References for a preliminary ruling – Directive 2011/16/EU – Administrative cooperation in the field of taxation – Articles 1 and 5 – Decision ordering that information be provided to the competent authority of a Member State, acting in response to a request for exchange of information from the competent authority of another Member State – Person holding the information the production of which is ordered by the competent authority of the first Member State – Taxpayer concerned by the investigation giving rise to the request from the competent authority of the second Member State – Third parties with whom that taxpayer maintains legal, banking, financial or, more broadly, economic relations – Judicial protection – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy – Article 52(1) – Limitation – Legal basis – Respect for the essence of the right to an effective remedy – Existence of a remedy enabling the individuals in question to obtain an effective review of all the relevant issues of fact and of law, as well as effective judicial protection of the rights guaranteed to them by EU law – Objective of general interest recognised by the Union – Combating international tax fraud and tax evasion – Proportionality – Whether the information referred to in the information order is ‘foreseeably relevant’ – Judicial review – Scope – Personal, temporal and material factors to be taken into consideration.

    Outcome of the case:

    On those grounds, the Court (Grand Chamber) hereby rules:

    1. Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, must be interpreted as:

    – precluding legislation of a Member State implementing the procedure for the exchange of information on request established by Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 2014, which prevents a person holding information from bringing an action against a decision by which the competent authority of that Member State orders that person to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, and as

    – not precluding such legislation from preventing the taxpayer concerned, in that other Member State, by the investigation giving rise to that request for exchange of information and the third parties concerned by the information in question from bringing actions against that decision.

    2. Article 1(1) and Article 5 of Directive 2011/16, as amended by Directive 2014/107, must be interpreted as meaning that a decision by which the competent authority of a Member State orders a person holding information to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, is to be considered, taken together with that request, as concerning information which is not manifestly devoid of any foreseeable relevance where it states the identity of the person holding the information in question, that of the taxpayer concerned by the investigation giving rise to the request for exchange of information, and the period covered by that investigation, and where it relates to contracts, invoices and payments which, although not specifically identified, are defined by criteria relating, first, to the fact that they were concluded or carried out by the person holding the information, secondly, to the fact that they took place during the period covered by that investigation and, thirdly, to their connection with the taxpayer concerned.

  • Paragraphs referring to EU Charter

    44) By its first questions in Cases C‑245/19 and C‑246/19 the referring court asks, in essence, whether Article 47 of the Charter, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, is to be interpreted as precluding legislation of a Member State implementing the procedure for the exchange of information on request established by Directive 2011/16 from excluding the possibility of a decision, whereby the competent authority of that Member State obliges a person holding information to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, being the subject of actions brought by (i) such a person, (ii) the taxpayer concerned, in that other Member State, by the investigation giving rise to that request, and (iii) third parties concerned by the information in question.

    45) As is apparent from Article 51(1) of the Charter, the provisions thereof are addressed to the Member States only when they are implementing Union law.

    46) The adoption, by a Member State, of legislation specifying the details of the procedure for the exchange of information on request established by Directive 2011/16 constitutes such an implementation of EU law, meaning that the Charter is applicable (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraphs 34 to 37), in particular where that legislation provides for the possibility, for the competent authority, of taking a decision that obliges a person holding information to provide it with that information.

    47) Article 47 of the Charter states, in the first paragraph thereof, that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy in compliance with the conditions laid down in that article. The obligation imposed on the Member States, in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law corresponds to that right.

    48) Articles 7 and 8 of the Charter enshrine the right to respect for private life and the right to the protection of personal data, respectively.

    ...

    50) Thus, in a situation where several rights guaranteed by the Charter are involved in a given case and are liable to be at odds with each other, the necessary reconciliation of those rights, in order to ensure that a fair balance is struck between the protection attached to each of them, may lead to limitations being imposed on them (see, to that effect, judgments of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraphs 63 to 65, and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46).

    51) Furthermore, Article 52(1) of the Charter provides that limitations may be placed on the exercise of rights and freedoms guaranteed by the Charter on condition that (i) those limitations are provided for by law, (ii) they respect the essence of the rights and freedoms at issue, and (iii) in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

    52) In the present instance, however, the three fundamental rights involved are not liable to be at odds with each other but are complementary in their application. The effectiveness of the protection that Article 47 of the Charter is intended to confer on the holder of the right guaranteed thereby cannot be expressed or assessed other than in relation to substantive rights, such as those referred to in Articles 7 and 8 of the Charter.

    53) More specifically, it follows from the first questions referred in Cases C‑245/19 and C‑246/19, read in the light of the reasoning underlying them, that the referring court is asking whether Article 47 of the Charter is to be interpreted as meaning that national legislation may deny a person holding information, a taxpayer concerned by a tax investigation and third parties concerned by that information the possibility of bringing a direct action against a decision ordering that the information in question be provided to the tax administration, a decision which that court considers is of a sort liable to infringe the rights guaranteed to those various persons by Articles 7 and 8 of the Charter. 

    ...

    54) As can be seen from the settled case-law of the Court, the right to an effective remedy may be invoked on the basis of Article 47 of the Charter alone, without there being a need for the content thereof to be made more specific by other provisions of EU law or by provisions of the domestic law of the Member States (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56).

    55) That being said, the recognition of that right, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking that right is relying on rights or freedoms guaranteed by EU law.

    ...

    56) As can be seen from the statements made by the referring court and summarised in paragraph 26 above and from the provisions of national legislation reproduced in paragraphs 17 to 19 above, the person holding the information at issue in the main proceedings is a legal person to whom the competent national authority has addressed a decision ordering that the information in question be provided, non-compliance with which is liable to entail a penalty.

    57) Regarding, in the first place, the question whether such a person must be granted the right to an effective remedy guaranteed by Article 47 of the Charter when confronted with such a decision, it should be noted at the outset that it follows from the settled case-law of the Court that the protection of persons, both natural and legal, against arbitrary or disproportionate intervention by the public authorities in the sphere of those persons’ private activities constitutes a general principle of EU law (judgments of 21 September 1989, Hoechst v Commission, 46/87 and 227/88, EU:C:1989:337, paragraph 19, and of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraph 56).

    58) That protection may be relied on by a legal person as a right guaranteed by the law of the Union, for the purposes of the first paragraph of Article 47 of the Charter, in order to challenge before a court an act adversely affecting that person, such as an order to provide information or a penalty imposed on the ground of non-compliance with that order (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraphs 51 and 52).

    59) It follows that a legal person to whom the competent national authority has addressed a decision, of the same sort as those at issue in the main proceedings, ordering that information be provided, must be granted the right to an effective remedy guaranteed by Article 47 of the Charter when confronted with such a decision.

    60) Concerning, in the second place, the question whether the exercise of that right may be limited by national legislation, it follows from the case-law of the Court that a limitation may be placed on the exercise of the right to an effective remedy before a tribunal, enshrined in Article 47 of the Charter, by the EU legislature or, where no relevant EU legislation exists, by the Member States, if the conditions laid down in Article 52(1) of the Charter are satisfied (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 46 and 49).

    ...

    62) Furthermore, Directive 2011/16 refers, in Article 25(1) thereof, to the EU legislation on the processing of personal data, providing that all exchanges of information pursuant to that directive are to be subject to the provisions of Directive 95/46, which, as has been recalled in paragraph 11 above, was repealed and replaced with effect from 25 May 2018, that is, after the decisions at issue in the main proceedings were adopted, by Regulation 2016/679, the objective of which is, inter alia, to safeguard and to set out in detail the right to the protection of personal data guaranteed by Article 8 of the Charter.

    ...

    64) It follows that the EU legislature did not itself limit the exercise of the right to an effective remedy enshrined in Article 47 of the Charter and that it is open to the Member States to limit that exercise, provided that they meet the requirements laid down in Article 52(1) of the Charter.

    65) As has been recalled in paragraph 51 above, that provision requires, inter alia, that any limitation placed on the exercise of the rights and freedoms guaranteed by the Charter must respect the essence of those rights and freedoms.

    66) In that regard, it follows from the case-law of the Court that the essence of the right to an effective remedy enshrined in Article 47 of the Charter includes, among other aspects, the possibility, for the person who holds that right, of accessing a court or tribunal with the power to ensure respect for the rights guaranteed to that person by EU law and, to that end, to consider all the issues of fact and of law that are relevant for resolving the case before it (see, to that effect, judgments of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 49, and of 12 December 2019, Aktiva Finants, C‑433/18, EU:C:2019:1074, paragraph 36). In addition, in order to access such a court or tribunal, that person cannot be compelled to infringe a legal rule or obligation or to be subject to the penalty attached to that offence (see, to that effect, judgments of 1 April 2004, Commission vJégo-Quéré, C‑263/02 P, EU:C:2004:210, paragraph 35; of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 64; and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 104)

    ...

    69) In those circumstances, it must be held that national legislation, such as that at issue in the main proceedings, which excludes the possibility for a person holding information, to whom the competent national authority addresses a decision ordering that the information in question be provided, of bringing a direct action against that decision, does not respect the essence of the right to an effective remedy guaranteed by Article 47 of the Charter and, consequently, that Article 52(1) thereof precludes such legislation.

    ...

    72) Regarding, in the first place, the question whether such a person should be granted the right to an effective remedy enshrined in Article 47 of the Charter when confronted with such decisions, it should be noted that that person is clearly the holder of (i) the right to respect for private life guaranteed by Article 7 of the Charter and (ii) the right to the protection of personal data guaranteed by Article 8(1) thereof, which is closely connected, as regards natural persons, with the right to respect for the private life of those persons (judgments of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 47, and of 18 June 2020, Commission v Hungary (Transparency of association), C‑78/18, EU:C:2020:476, paragraphs 123 and 126).

    ...

    75) Accordingly, a taxpayer such as the one referred to in paragraph 70 above must be granted the right to an effective remedy guaranteed by Article 47 of the Charter when confronted with a decision, of the same sort as those at issue in the main proceedings, ordering that information be provided.

    76) Concerning, in the second place, the question whether the exercise of that right may be limited, pursuant to Article 52(1) of the Charter, by excluding such a person from being able to bring a direct action against that decision, it should be borne in mind that such a limitation must, first, be provided for by law, which means, inter alia, as can be seen from the settled case-law of the Court, that the legal basis of the limitation must clearly and precisely define the scope of that limitation (judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 81, and of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 86).

    ...

    87) That objective constitutes an objective of general interest recognised by the Union for the purposes of Article 52(1) of the Charter (see, to that effect, judgments of 22 October 2013, Sabou, C‑276/12, EU:C:2013:678, paragraph 32; of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 76; and of 26 February 2019, X (Controlled companies established in third countries), C‑135/17, EU:C:2019:136, paragraphs 74 and 75), capable of enabling a limitation to be placed on the exercise of the rights guaranteed by Articles 7, 8 and 47 thereof, taken individually or in conjunction.

    ...

    93) In those circumstances, it must be held that Article 47 of the Charter, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, does not preclude national legislation such as that at issue in the main proceedings from ruling out the possibility that a decision, whereby the competent authority of a Member State obliges a person holding information to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, may be the subject of a direct action brought by the taxpayer concerned, in that other Member State, by the investigation giving rise to that request.

    ...

    95) It is necessary, in the first place, to determine whether such third parties must, in a situation such as that at issue in the main proceedings, be granted the right to an effective remedy enshrined in Article 47 of the Charter.

    ...

    105) Having regard to all of the foregoing, the answer to the first questions referred in Cases C‑245/19 and C‑246/19 is that Article 47 of the Charter, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, must be interpreted as:

    – precluding legislation of a Member State implementing the procedure for the exchange of information on request established by Directive 2011/16 which prevents a person holding information from bringing an action against a decision by which the competent authority of that Member State orders that person to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, and as

    – not precluding such legislation from preventing the taxpayer concerned, in that other Member State, by the investigation giving rise to that request for exchange of information and the third parties concerned by the information in question from bringing actions against that decision.