The CFE has issued an Opinion Statement prepared by the CFE ECJ Task Force on the decisions of the CJEU in C-694/20 and Case C-623/22 on the validity of certain aspects of DAC6 as regards the Charter of Fundamental Rights of the European Union (the “DAC6 cases”).
The DAC6 cases concern whether some obligations to report certain cross-border arrangements violate rights recognised by the Charter of Fundamental Rights of the European Union and, therefore, affect the validity of provisions of DAC6. The Court concludes that the obligation established for lawyers to communicate to other intermediaries their exemption from the reporting obligation violates the right to respect for private life, while the same obligation established for other intermediaries does not. At the same time, it considers that the obligation to report certain cross-border tax planning schemes, established in DAC in its fifth amendment by DAC6, does not violate the principles of equality and non-discrimination (raised because the scope of the obligation was not limited to corporate income tax); the principles of legal certainty and legality in criminal matters (key concepts are determined in a sufficiently clear and precise manner); or the right to a fair trial (there is no link between the reporting obligations with a judicial proceeding).
This Opinion Statement focuses on questions of law and the scope of legal professional privilege as a waiver to the disclosure obligations established by DAC for fiscal intermediaries. The Statement also seeks to explain and analyse the CJEU’s reasoning regarding the scope of the invalidity and the justification of the validity of certain aspects of DAC6.
In the Statement, the CFE identifies that DAC6 raises numerous interpretative difficulties and has changed the landscape of reporting obligations. The CFE welcomes the fact that the Court has declared that the DAC6 is invalid insofar as it concerns the obligation imposed on intermediary lawyers to notify some personal data to non-client intermediaries, based on the fundamental role that lawyers play in a democratic society. However, it regrets that non-lawyer intermediaries only enjoy limited protections.
Despite the fact that the Court does not find a violation of the principles of legal certainty and legality, DAC6 still leads to very complex compliance analysis, both as regards the identification of the reportable arrangements and the identification of the information to be reported, as the evaluation assessment program launched by the European Commission shows. This complexity leads to a diverse implementation and interpretation of the hallmarks and the different obligations by Member States. Therefore, potential simplification of the reporting obligations could be considered.
We invite you to read the Opinion Statement and remain available for any queries you may have.