OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 2 July 2020 (1)
Joined Cases C‑245/19 and C‑246/19
État du Grand-duché de Luxembourg
v
B (C‑245/19),
B,
C,
D,
F.C. (C‑246/19),
Other party:
A
(Judicial protection against requests for information in tax law)
(Request for a preliminary ruling
from the Cour administrative (Higher Administrative Court, Luxembourg))
(Reference for a preliminary ruling — Tax law — Directive 2011/16/EU — Administrative cooperation in the field of taxation — Article 1(1) — Article 5 — Requests for information from the tax authorities of another Member State — Information order issued by the requested tax authority — Foreseeable relevance of the requested information — Charter of Fundamental Rights of the European Union — Articles 7 and 8 — Article 47 — Right to an effective remedy before a tribunal — Exclusion of legal remedies for the person responsible for providing information, the taxpayer concerned by the information and other third parties concerned by the information)
I. Introduction
1. Effectively combating tax avoidance, or even tax evasion, is currently in the focus of public attention, legal reforms (2) and the case-law of the Court. (3) There is no doubt that the international fight against base erosion and profit shifting by taxpayers (the OECD’s ‘BEPS Project’ (4)) requires improved cooperation between the tax authorities of the States and, in particular, effective data exchange.
2. The present request for a preliminary ruling concerns the other side of an effective information exchange system: the legal interests (such as the fundamental right to data protection, for example) of the persons responsible for providing information, taxpayers and other third parties — who may not be aware of the transfer of their data. In the present case, the Grand Duchy of Luxembourg explicitly excluded, by law, the possibility of a legal remedy against information orders.
3. In this regard, the Court has already held, in the Berlioz case, (5) that the person who is obliged to provide information in the context of an exchange between national tax authorities under Directive 2011/16 (6) has the right to review the legality of the information order in the requested Member State indirectly in the context of a challenge to a decision imposing a penalty imposed by the requested authority owing to his or her refusal to provide the information. (7)
4. This request for a preliminary ruling now concerns the possibility of a legal remedy directly against the information order issued by the national tax authority that wishes to or is required to provide information to the requesting tax authority of another Member State. Not only the party required to provide the information but also the taxpayer and other third parties concerned are defending themselves against that order.
5. The Court must now clarify whether an information order under Directive 2011/16 already constitutes an interference with the fundamental rights of the party required to provide the information, the taxpayer and other third parties concerned, against which an effective remedy must be allowed under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Moreover, the question arises as to how specific and precise the request must be in relation to the persons concerned in order to allow the requested tax authority to assess the ‘foreseeable relevance’ of the requested information to the tax proceedings in the other Member State. Only ‘foreseeably relevant’ information can be the subject matter of the administrative cooperation under Directive 2011/16.
II. Legal framework
A. EU law
1. Charter of Fundamental Rights of the European Union
6. Article 7 of the Charter (‘Respect for private and family life’) reads:
‘Everyone has the right to respect for his or her private and family life, home and communications.’
7. Article 8 of the Charter (‘Protection of personal data’) reads:
‘1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. …’
8. The first paragraph of Article 47 of the Charter provides for the right to an effective remedy:
‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’
2. Directive 2011/16
9. Recital 9 of Directive 2011/16 reads as follows:
‘… 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. …’
10. Article 1 defines the object of Directive 2011/16:
‘1. 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.
2. …
3. This Directive shall not affect the application in the Member States of the rules on mutual assistance in criminal matters. It shall also be without prejudice to the fulfilment of any obligations of the Member States in relation to wider administrative cooperation ensuing from other legal instruments, including bilateral or multilateral agreements.’
11. Article 5 of Directive 2011/16 provides for the procedure for the exchange of information on request:
‘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.’
12. Article 6 of Directive 2011/16 lays down rules for carrying out a request for information:
‘1. The requested authority shall arrange for the carrying out of any administrative enquiries necessary to obtain the information referred to in Article 5.
2. …
3. In order to obtain the requested information or to conduct the administrative enquiry requested, the requested authority shall follow the same procedures as it would when acting on its own initiative or at the request of another authority in its own Member State.
4. …’
13. Lastly, Article 25 of Directive 2011/16 makes clear that data protection also applies to administrative cooperation in the field of taxation.
B. International law
1. Convention on Mutual Administrative Assistance in Tax Matters
14. The Member States of the Council of Europe and the member countries of the OECD signed the Convention on Mutual Administrative Assistance in Tax Matters on 25 January 1988. (8) All Member States of the European Union have ratified the Convention on Mutual Administrative Assistance in Tax Matters.
15. Article 23 of the Convention (‘Proceedings’) applies to all types of administrative assistance:
‘1. Proceedings relating to measures taken under this Convention by the requested State shall be brought only before the appropriate body of that State.
2. …
3. As soon as a final decision in the proceedings has been given, the requested State … shall notify the other State of the decision and the implications which it has for the request for assistance.’
2. OECD Model Tax Convention on Income and on Capital
16. On 30 July 1963, the Council of the OECD adopted a recommendation concerning the avoidance of double taxation (OECD Model Tax Convention). (9)
17. Article 26(1) of the OECD Model Tax Convention concerns the exchange of information and provides:
‘1. The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political subdivisions or local authorities, in so far as the taxation thereunder is not contrary to the Convention. …’
3. Tax Convention between Luxembourg and Spain
18. The Tax Convention between the Grand Duchy of Luxembourg and the Kingdom of Spain of 3 June 1986, signed in Madrid on 3 June 1986, has been in force since 1988. (10) Article 27(1) of the Tax Convention governs the exchange of information and is identical to Article 26(1) of the OECD Model Tax Convention.
C. Luxembourg law
1. Law of 29 March 2013
19. The Grand Duchy of Luxembourg transposed Directive 2011/16 by the Law of 29 March 2013. (11)
20. Article 6 of the Law of 29 March 2013 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 referred to in Article 1 which it has or which it shall obtain following administrative investigations.’
2. Law of 25 November 2014
21. This was followed by the Law of 25 November 2014 laying down the procedure applicable to the exchange of information on request in tax matters. (12) Article 1 of that law provides as follows:
‘(1) This Law shall apply from its entry into force to requests for exchange of information in tax matters made by the competent authority of a requesting State pursuant to:
…
4. the amended Law of 29 March 2013 on administrative cooperation in the field of taxation …’
22. Article 2 of the Law of 25 November 2014 provides:
‘(1) Tax administrations shall be authorised to request information of any kind required in order to implement the exchange of information provided for by Conventions and laws from the holder of that information.
(2) The holder of the information shall be obliged to provide the requested information in its entirety, accurately and without alteration, within one month of notification of the decision requiring the requested information to be provided. That obligation shall extend to the transmission of unaltered documents on which the information is based.
…’
23. Article 3 of the Law of 25 November 2014 reads:
‘(1) The competent tax administration shall verify that the request for exchange of information is in order. A request for exchange of information shall be considered to be in order if it states the legal basis, identifies the competent authority making the request and contains the other information prescribed by Conventions and laws.
…
(3) If the competent tax administration is not in possession of the information requested, the director of the competent tax administration or his or her authorised representative shall notify the holder of the information by registered letter of his or her decision requiring the requested information to be provided. Notification of the decision to the holder of the information requested shall constitute notification to any other person referred to therein.
…’
24. Article 5(1) of the Law of 25 November 2014 provides as follows:
‘If the information requested is not provided within one month of notification of the decision requiring the requested information to be provided, the holder of the information may be subject to an administrative fine of a maximum of EUR 250 000. The amount of the fine shall be fixed by the director of the competent tax administration or his or her authorised representative.’
25. Article 6 of the Law of 25 November 2014 provides as follows:
‘(1) No appeal shall lie against a request for exchange of information or a decision requiring the requested information to be provided as referred to in Article 3(1) and (3).
(2) The holder of the information may apply to the Tribunal administratif (Administrative Court) for a decision referred to in Article 5 to be varied. The action must be brought within one month of notification of the decision to the holder of the information requested. The action shall have suspensive effect. By way of derogation from the legislation relating to procedure in the administrative courts and tribunals, each party may lodge no more than one pleading, including the application initiating proceedings. The reply must be provided within one month of the date on which the application initiating proceedings was lodged at the registry of the Tribunal administratif (Administrative Court). However, if the preparation of the case so requires, the President of the Chamber called upon to hear and determine the case may, of his or her own motion, order additional pleadings to be produced within a period which he or she shall determine. The Tribunal administratif (Administrative Court) shall rule within one month of the date on which the reply is lodged or of the date on which the time limit for the lodging of additional pleadings expires.’
3. The Law of 1 March 2019
26. The Law of 1 March 2019 amending the Law of 25 November 2014 (13) entered into force on 9 March 2019. The Law of 1 March 2019 amended, in particular, Articles 3(1) and 6(1) of the Law of 25 November 2014.
27. Article 3(1) of the Law of 25 November 2014 now provides that the competent tax administration is to satisfy itself that the information sought is not devoid of any foreseeable relevance having regard to the identity of the taxpayer concerned and that of the holder of the information, and to the requirements of the tax investigation concerned.
28. Pursuant to Article 6(1) of the Law of 25 November 2014, the holder of the information now has the possibility of a legal remedy by virtue of the fact that he or she can bring an action for annulment against the decision requiring the requested information to be provided referred to in Article 3(3) before the Tribunal administratif (Administrative Court, Luxembourg).
III. The main proceedings and the request for a preliminary ruling
29. The main proceedings are based on two requests for information addressed to the Luxembourg tax administration by the Spanish tax administration. The Spanish tax administration bases them on the Tax Convention between the Grand Duchy of Luxembourg and the Kingdom of Spain of 3 June 1986 and on Directive 2011/16. Both requests for information concern the artist F.C., who resides in Spain.
1. Background to Case C‑245/19
30. Following the first request for information of 18 October 2016, the directeur de l’administration des contributions directes de Luxembourg (Director of the Direct Taxation Administration, Luxembourg) issued an order against the company B under Luxembourg law on 16 June 2017. By that order, he first asked the company B to provide, in relation to the period 2011 to 2014, copies of the contracts concluded by the company B with the companies E and F in relation to the rights of F.C.
31. In addition, he asked the company B to provide the following information and documents:
‘Please provide copies of any other contract from the financial years 2011 to 2014 and any other contract concluded earlier or later but taking effect in the aforementioned financial years in relation to the artist Ms F.C.’
32. Lastly, he asked the company B to provide copies of all invoices issued or received in connection with those contracts, and the method of their collection and payment, and details of the bank accounts and financial institutions in which the cash shown on the balance sheet is deposited.
33. The letter stated that, in accordance with Article 6 of the Law of 25 November 2014, no appeal lay against that order.
2. Background to Case C‑246/19
34. Following the second request for information of 16 March 2017, the Luxembourg tax authorities issued an order against the bank A, the registered office of which is located in Luxembourg, on 29 May 2017. In that order, it asked the bank A to specify, in relation to the period 2011 to 2014, the current holders of a particular bank account, the name(s) of the person(s) authorised to use the bank account and the name(s) of the person(s) who opened the account, even if the date of opening does not fall within the period covered by the present order, and to provide bank statements for that period and the beneficial owners of the account.
35. In addition, the bank A was asked to provide the following information and documents in relation to the period 2011 to 2014:
– ‘Please indicate whether the account … was opened after 31 December 2014. If so, please indicate whether the funds came from another account opened with your institution, and, if so, please submit the statements from this other account for the specified period.
– Please specify all assets that Ms F.C. held for the company D, company B or other companies controlled by Ms F.C. in the specified period, and please provide evidence in that regard.
– Please specify all assets of which Ms F.C. was the beneficial owner in the specified period, and please provide evidence in that regard.’
36. Lastly, the Luxembourg tax authorities asked the bank A to provide copies of all the documents relevant to the above order. The letter also stated that, in accordance with Article 6 of the Law of 25 November 2014, no action could be brought against the order.
3. The main proceedings
37. On 17 July 2017, the company B (Case C‑245/19) and F.C. and the companies B, C and D (Case C‑246/19) brought actions before the Tribunal administratif (Administrative Court) against the orders of the Luxembourg tax authorities of 29 May and 16 June 2017, respectively, and requested that the orders be amended or, in the alternative, annulled. The bank A intervened in the latter proceedings.
38. By judgments of 26 June 2018, the Tribunal administratif (Administrative Court) allowed the actions in part. First, it annulled the decision of 29 May 2017 (Case C‑245/19) in so far as it ordered the company B to provide copies of all contracts for the financial years 2011 to 2014 other than those concluded with the companies E and F in relation to the rights of F.C. and any other contract concluded earlier or later but taking effect in the aforementioned financial years in relation to F.C.
39. Secondly, it annulled the decision of 16 June 2017 (Case C‑246/19) in so far as it ordered the bank A:
– to clarify — if the bank account was opened after 31 December 2014 — whether the funds came from another account opened with the banking institution, and, if so, to submit the statements from this other account for the specified period;
– to specify all assets that the taxpayer held for companies under her control other than the companies B and D in the specified period, and to provide evidence in that regard; and
– to specify all assets of which the taxpayer was the beneficial owner in the specified period, and to provide evidence in that regard.
40. The Tribunal administratif (Administrative Court) based the admissibility of the actions on the fact that Article 6 of the Law of 25 November 2014 infringed Article 47 of the Charter and must therefore be disapplied. In its assessment of the substance of the case, it deemed the aforementioned information requested by the Luxembourg tax authorities not to be ‘foreseeably relevant’ within the meaning of Directive 2011/16.
41. On 24 July 2018, the Grand Duchy of Luxembourg brought appeals against those judgments before the Cour administrative (Higher Administrative Court, Luxembourg). In particular, the Grand Duchy of Luxembourg takes the view, first, that only an action against the imposition of a financial penalty could be brought before the administrative courts under Luxembourg law. This met the requirements of Article 47 of the Charter. Secondly, the information requested by the Spanish authorities was ‘foreseeably relevant’.
4. The order for reference and the questions referred for preliminary ruling
42. In those circumstances, the Cour administrative (Higher Administrative Court) stayed the proceedings by decisions of 14 May 2019 and referred the following questions to the Court for a preliminary ruling under Article 267 TFEU in Case C‑245/19:
‘(1) Must Articles 7, 8 and 52(1) of the [Charter], whether or not read in conjunction with Article 47 of the Charter, be interpreted as precluding national legislation of a Member State which, in the context of the procedure for the exchange of information on request established in particular with a view to the implementation of [Directive 2011/16], excludes any remedy, in particular a judicial remedy, on the part of a third party holding information to challenge a decision by which the competent authority of that Member State requires that third party to communicate information to it for the purposes of implementing a request for exchange of information received from another Member State?
(2) If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention, as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, while seeking information concerning contracts and the associated invoices and payments which are unspecified but which are defined by criteria concerning, first, the fact that the contracts were concluded by the identified holder of the information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their relationship with the identified taxpayer concerned?’
43. In Case C‑246/19, the Cour administrative (Higher Administrative Court) referred the following questions to the Court for a preliminary ruling:
‘(1) Must Articles 7, 8 and 52(1) of the [Charter], whether or not read in conjunction with Article 47 of the Charter, be interpreted as precluding national legislation of a Member State which, in the context of the procedure for the exchange of information on request established in particular with a view to the implementation of [Directive 2011/16], excludes any remedy, in particular a judicial remedy, on the part of the taxpayer concerned by the investigation in the requesting Member State and a third party to challenge a decision by which the competent authority of that Member State requires a holder of information to communicate information to it for the purposes of implementing a request for exchange of information received from another Member State?
(2) If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention, as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, while seeking information concerning bank accounts and financial assets which are unspecified but which are defined by criteria concerning, first, the fact that they are owned by an identified holder of information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their relationship with the identified taxpayer concerned?’
IV. Proceedings before the Court
44. By order of the President of the Court of 26 April 2019, Cases C‑245/19 and C‑246/19 were joined for the purposes of the written and oral procedure and the judgment.
45. The Kingdom of Belgium, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Republic of Poland and the European Commission submitted written observations in the preliminary ruling proceedings before the Court. At the hearing on 26 May 2020, oral argument was presented by the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg and the Commission.
V. Legal assessment
A. The respective first questions referred
46. By its first questions, the referring court wishes to know, in essence, whether Article 47 of the Charter must be interpreted as meaning that the addressee of an information order, the taxpayer concerned and third parties concerned must have an effective remedy against the information order issued by the requested authority. In this regard, it is of significance whether the rights of the aforementioned groups of persons under Articles 7 and 8 of the Charter (respect for private life, protection of personal data) may have been violated.
1. Infringement of Article 47 of the Charter as regards the addressee of the information order (C‑245/19)
47. As regards the addressee, the Grand Duchy of Luxembourg introduced the possibility of a direct legal remedy against the information order by the Law of 1 March 2019. However, this does nothing to affect the admissibility of the first question referred in Case C‑245/19, because, in the present case, the addressee brought an action before the Law of 1 March 2019 entered into force.
48. Whether the exclusion of a legal remedy against an information order in the context of the cross-border exchange of information violates rights of the addressee within the meaning of Article 47 of the Charter depends on whether the information order falls within the scope of the Charter and concerns ‘rights or freedoms guaranteed by the law of the Union’.
(a) Information order as implementation of Union law
49. Article 51(1) of the Charter states that the provisions thereof are addressed to the Member States only when they are implementing Union law.
50. The Court has already ruled, in the Berlioz case, that a Member State implements EU law within the meaning of that provision, and that the Charter is therefore applicable, when that Member State makes provision in its legislation for a pecuniary penalty to be imposed on a relevant person who refuses to supply information in the context of an exchange between tax authorities based, in particular, on the provisions of Directive 2011/16. (14)
51. If the order imposing a pecuniary penalty, which is not governed by Directive 2011/16, already constitutes an implementation of EU law, then that applies a fortiori to the implementation of a request for information by the tax authorities of the requested Member State as governed by Article 6(3) of Directive 2011/16. The Charter is therefore applicable.
(b) Infringement of Article 47 of the Charter
52. The exclusion of a legal remedy against an information order constitutes an infringement of Article 47 of the Charter for the addressee of the information order if the latter may violate his or her rights or freedoms guaranteed by EU law.
53. It is true that Directive 2011/16 lays down rules only for administrative cooperation between Member States and therefore does not contain any rights for individuals. However, a person who may be the subject of administrative measures may rely on Article 47 of the Charter and defend his or her case before a tribunal in the context of the application of Directive 2011/16. (15)
54. Regarding the addressee of the information order, it can remain open whether specific fundamental rights of the Charter may have been violated and, if so, which ones. This is because, as already held by the Court in the Berlioz case, this possibility always exists in the case of an addressee of an onerous measure of a public authority. (16)
55. This applies to the addressee of an information order in the same way as it does to an addressee of an administrative order imposing a fine. This is because, contrary to the arguments of some Member States, the information order in itself constitutes an onerous legal act against the addressee. The imposition of such an obligation to provide information — and one which is subject to a fine — is not merely a preparatory step. First, the addressee is directly obliged to carry out a specific act — in this case the release of information. Secondly, it is not the case that an onerous measure against the party required to provide information is being prepared. At most, the information order could be a preparatory step for the tax assessment notice for the taxpayer. The information order is also not a preparatory step for an administrative order imposing a fine. This is because administrative orders imposing a fine penalise failures to comply with an information order and are not its objective.
56. Nor does the possibility of an indirect legal remedy — as established by the Court in the Berlioz case by way of the possibility of a legal remedy against a possible order imposing a fine (17) — do anything to change this outcome, contrary to the view taken by the Grand Duchy of Luxembourg.
57. In a country based on the rule of law and in a union based on the rule of law, it is unreasonable to require a person concerned to violate an administrative order in order to be able to review the legality of the order indirectly. (18) This applies all the more so if — as here, as correctly pointed out by the Commission — the decision as to whether to initiate proceedings for an administrative penalty is within the discretion of the tax authority. This is because, in such cases, the tax authority would be able to prevent a review of the legality of the request for information by refraining from initiating proceedings for an administrative penalty.
(c) Conclusion
58. The addressee of an information order issued in the context of an exchange between tax authorities of Member States pursuant to Directive 2011/16 is entitled, under Article 47 of the Charter, to judicial review of the legality of that decision. The exclusion of legal protection for the addressee of an information order therefore infringes Article 47 of the Charter.
2. Infringement of Article 47 of the Charter as regards the taxpayer concerned by the information order (C‑246/19)
59. Furthermore, clarification is required as to whether the exclusion of a legal remedy for a taxpayer indirectly concerned by an information order in respect of another party constitutes an infringement of Article 47 of the Charter.
60. The issuing of the information order in the cross-border exchange of information between tax authorities constitutes implementation of EU law. The Charter is therefore applicable (see point 49 et seq. above).
(a) Possible violation of fundamental rights of the taxpayer indirectly concerned
61. In order for Article 47 of the Charter to apply, the taxpayer’s own rights or freedoms would have to be affected. An interference with taxpayer’s fundamental right to the protection of personal data is conceivable if a tax authority requires another party (in Case C‑246/19, a bank) to provide information on bank accounts, shareholdings and financial assets of that taxpayer.
62. Under Article 8(1) of the Charter, everyone has the right to the protection of personal data concerning him or her.
63. Personal data is all information relating to an identified or identifiable person. (19) Information regarding the amount of income received is personal data. (20) The same applies to information about bank details. In this respect, it is also possible to draw on the extensive case-law of the European Court of Human Rights on Article 8 ECHR. (21)
64. The present case concerns information on accounts, account balances, other assets and shareholdings of a natural person, that is to say, personal data. The protection afforded by Article 8 of the Charter is therefore applicable.
65. The obligation of the addressee of the information order to transmit this data to the tax administration constitutes, in itself, an interference with the taxpayer’s fundamental right. Contrary to the view taken by some Member States, the existence of an interference cannot be refuted on the basis that the order does not yet constitute an onerous legal act, but merely implements it. Rather, the order itself constitutes a directly onerous legal act in relation to the addressee (see point 61 above) and an indirectly onerous legal act in relation to the taxpayer. The addressee’s obligation to act also jeopardises the taxpayer’s fundamental rights in the first place. This is because the required fulfilment of the obligation gives the public authority access to the personal data without the owner of the data consenting to this. (22)
66. This is not precluded by the case-law of the ECtHR. According to that case-law, there is an interference in the right to respect for private life under Article 8 ECHR at the latest when the taxpayer’s banking data are transmitted to the tax authorities of the requesting State. (23) However, this does not rule out the possibility of an interference at an earlier stage.
67. As a result, the obligation of a third party to disclose personal data of taxpayers in any event affects their fundamental right under Article 8 of the Charter. The question of whether there is also an interference with Article 7 of the Charter (respect for private and family life) can be left open in this respect.
(b) Infringement of Article 47 of the Charter by excluding the possibility of a legal remedy despite the possibility of challenging the tax assessment notice
68. Legal protection before the courts of the requested State, in this case the Grand Duchy of Luxembourg, would not be necessary if it were sufficient that the taxpayer could challenge the tax assessment notice which is likely to be issued against her — in this case by the requesting Spanish tax authorities. In so far as the taxpayer in the present case is also able to raise a plea alleging deficiencies in the taking of evidence, it could be argued that the legal remedy granted to her in Spain is sufficiently effective to preclude an infringement of Article 47 of the Charter.
69. This is supported by the fact that Article 47 of the Charter does not contain any concrete statements regarding the form taken by an effective remedy, but only requires that everyone have the right to an effective remedy before a tribunal. This does not presuppose that such a remedy must be brought against the act of a public authority directly. According to the case-law of the Court, even a merely indirect legal remedy can be effective in certain circumstances. (24) The Kingdom of Spain, the French Republic and the Grand Duchy of Luxembourg, in particular, conclude from this that the legal remedy against the tax assessment notice is sufficient.
70. This view could be supported by the objective of Directive 2011/16, namely to combat effectively international tax evasion and avoidance. (25) Legal protection from and against the provision of information leads to delays at the least.
71. However, there are two different, independent interferences in the sphere of a holder of fundamental rights, and they must be legally separated from each other. In the first instance, personal data is requested from another party. This constitutes an interference in the taxpayer’s private life, which is protected at the level of EU law by Articles 7 and 8 of the Charter. In the second instance, a payment obligation is imposed on the taxpayer. The latter normally does not affect the fundamental right to privacy, but may affect the fundamental rights under Article 20 (equality before the law) and Articles 16 and 17 of the Charter (freedom to conduct a business and right to property).
72. The independence of the interferences is also demonstrated by the fact that the collection of data does not become unlawful simply because the tax assessment notice is incorrect. Nor does the tax assessment notice necessarily become incorrect simply because the data collection was unlawful. If the unlawful collection of data served as a basis for the tax assessment notice, an absolute prohibition on the use of the data does not follow from EU law in any event. (26)
73. Moreover, it is not clear whether and when a tax assessment notice will be issued. For example, if the data collected leads to the conclusion that the requesting State does not have a tax claim, there will never be a corresponding onerous tax assessment notice that could be challenged by the taxpayer. The same applies if the data collected was not relevant for tax purposes, but a tax assessment notice is issued for other reasons. When pursuing a legal remedy against that tax assessment notice, the taxpayer could hardly complain about the unlawfulness of the ‘unsuccessful’ collection of data.
74. For all these reasons, an indirect legal remedy against the collection of data by means of a legal remedy against the tax assessment notice is not an effective remedy within the meaning of Article 47 of the Charter. Such a remedy is no longer capable of effectively preventing interference with the protection of personal data. This already occurred when the data was collected. A possible use of the data at a later stage merely perpetuates this interference, meaning that a legal remedy against the use of the data in the course of the tax proceedings — even if there were a corresponding prohibition on use — merely serves to provide a defence against the perpetuation of the interference, but not against the interference itself.
75. Nor does the possibility of a legal remedy render cross-border mutual assistance devoid of purpose either, as shown by other Member States in which there is the possibility of a legal remedy. (27) Rather, this depends on the form taken by the legal remedy. That form may in fact take account of the interest in effective and timely mutual assistance referred to in recitals 6, 27 and 29 of Directive 2011/16. However, the exclusion of any legal remedy is contrary to the guarantee provided by Article 47 of the Charter.
76. Moreover, Directive 2011/16 itself assumes a legally limited obligation of mutual assistance. This is because only foreseeably relevant information may be requested by the requesting State (see Article 1(1) and Article 5 and recital 9 of Directive 2011/16). The addressee may obtain judicial review of that condition — whether in the context of challenging an administrative order imposing a fine (28) or in the context of challenging the order itself (see point 52 et seq. above).
77. Last but not least, Article 23(1) of the Convention on Mutual Administrative Assistance in Tax Matters also provides for a legal remedy against measures taken by the requested State (see Article 1(3) of Directive 2011/16).
78. Contrary to statements made by almost all the parties, this outcome is not precluded by the judgment in the Sabou case. (29) That case concerned neither the situation in the Berlioz case (30) nor that in the present case.
79. Rather, the Sabou case concerned the question of whether a (further) hearing was necessary within ongoing administrative proceedings for a request for information between two tax authorities. Specifically, the issue was whether the requesting authority had to give the taxpayer the opportunity to be heard and participate before verifying his information by addressing a request for information to the tax authorities of another Member State.
80. Whereas the Sabou case concerned a request to another public authority, the present case concerns an order addressed to a private individual and subject to a penalty in the event of non-compliance. In so far as a tax authority merely requests information from a tax authority of another Member State, as in the Sabou case, it is not required under EU law to notify the taxpayer of this or to obtain his or her point of view. (31) The Charter does not provide for a legal remedy against any and every intermediate step in an administrative procedure. (32) Information orders in respect of third parties, on the other hand, go beyond such preparatory investigative activities of the tax authorities.
81. Moreover, in the Sabou case, the taxpayer had already been heard because he had provided the information to be verified himself. Against this background, the Court found that there was no right to be heard in relation to an intermediate step in an administrative procedure. (33) However, the present case does not concern the right to be heard in an administrative procedure. Rather, it concerns the right to an effective remedy before a court for the purpose of reviewing an administrative decision which is addressed to another private party and concerns the person herself. The Sabou judgment therefore says nothing about this situation in the present case.
(c) Conclusion
82. The taxpayer concerned in the context of an exchange between tax authorities of the Member States under Directive 2011/16 can therefore, pursuant to Article 47 of the Charter, have the legality of an information order issued to another person and concerning his or her personal data reviewed by a court. The exclusion of the possibility of legal protection infringes Article 47 of the Charter.
3. Infringement of Article 47 of the Charter as regards a third party affected by the information order (C‑246/19)
83. Clarification is therefore still required, in the context of the respective first questions, as to whether Article 47 of the Charter is to be interpreted as meaning that a legal remedy against orders of the requested tax authority must also be permissible for third parties concerned.
84. In that context, those third parties concerned are themselves neither addressees of the orders of the requested tax authority (regarding these, see point 47 et seq. above) nor parties to the tax proceedings of the requesting tax authority (regarding these, see point 59 et seq. above).
85. In the proceedings that led to Case C‑246/19, the Luxembourg tax authorities asked the bank A to provide, in particular, information on bank accounts and assets that also concerned third parties (the companies B, C and D). As in the case of the taxpayer (see point 62 et seq. above), the information order must also be liable to violate ‘rights and freedoms guaranteed by the law of the Union’ (Article 47 of the Charter) in the case of third parties concerned.
86. The parties adopted diametrically opposed positions on this point too. While the French Republic and the Grand Duchy of Luxembourg do not consider it necessary to grant legal protection to any third parties concerned, the Commission takes the view that such a right follows from Article 47 of the Charter.
(a) Possible violation of fundamental rights of the third parties who are indirectly concerned
87. Clarification is therefore required as to whether rights or freedoms of third parties, in this case various companies, are affected within the meaning of Article 47 of the Charter if the tax authority obliges others to disclose information on bank accounts and assets of the companies. Once again, the fundamental rights under Articles 7 and 8 of the Charter come into consideration in this regard.
88. It is true that, based on its wording, Article 8 of the Charter (‘person’, ‘personal data’) would be applicable here. According to the case-law of the Court, however, in line with the wording of the secondary legislation on data protection, (34) only natural persons fall, in principle, within the scope of the fundamental right to data protection under Article 8 of the Charter. Legal persons, on the other hand, should be able to claim the protection of ‘personal data’ under Article 8 of the Charter only in so far as their official title identifies a natural person. (35) The question of whether this is the case here can be left open, as companies may be able to rely on a right under Article 7 of the Charter.
89. Article 7 of the Charter contains the fundamental right of everyone to respect for his or her private and family life. With regard to the processing of personal data, it concerns any information relating to an identified or identifiable individual. (36) The protection of private life also encompasses activities of a professional or business nature, including the associated transactions. (37) This also includes information about banking data. (38)
90. Against this background, legal persons can also rely on Article 7 of the Charter. (39) However, in the context of justifying an interference with Article 7 of the Charter, different standards may be applied to legal persons than to natural persons. (40) This has no bearing on the existence of a right to an effective remedy under Article 47 of the Charter, however.
91. Information regarding bank accounts and assets, which also concerns the companies B, C and D, was requested in the present case. Those legal persons can therefore rely on Article 7 of the Charter.
92. Contrary to the arguments put forward by some Member States, the implications of an interference with Article 7 of the Charter for third parties concerned may be similar to those for the addressee of the order of the requested authority and the taxpayer. Accordingly, the Commission rightly emphasises that the request for information and the subsequent order issued by the requested authority could be based on incorrect facts concerning third parties. The transfer of the data to a public authority gives an unknown person access to that data, irrespective of whether the owner of the data has consented to this. However, this is precisely what Article 7 of the Charter seeks to prevent. This example illustrates the practical need of the third parties concerned for effective remedies against such injunctions.
93. According to the case-law of the Court, to establish the existence of an interference with the fundamental right to respect for private life, it does not matter whether the information in question is sensitive or whether the persons concerned have suffered any adverse consequences on account of that interference. (41)
94. The obligation of another party to transmit this data to the tax administration also constitutes, in itself, an interference with the fundamental right of the third-party companies concerned. (42)
95. Contrary to the view taken by the French Republic, orders issued by the requested authority cannot be regarded as a preparatory act for obtaining information which does not yet produce onerous effects, meaning that there would not yet be an interference with Article 7 of the Charter. This is because third parties concerned will not be the subject of any subsequent legal act which that order is intended to prepare. As already stated (see point 68 et seq. above), the order prepares, at most, the tax assessment notice in respect of the taxpayer, if necessary, but not a legal act in respect of third parties concerned.
96. Rather, the interference already came to an end when the data was transmitted to the tax authorities by another private party in accordance with the order. Article 7 of the Charter does not require that there be any further financial or non-material damage which could then be otherwise liquidated at a later stage.
97. Contrary to the view taken by the Grand Duchy of Luxembourg, the assumption of an interference with the fundamental rights of third parties concerned is also not precluded by the Othymia Investments BV v. the Netherlands decision of the ECtHR. It only concerned challenges to the request for information between two tax authorities. The ECtHR merely stated that, in matters of taxation, Article 8 of the ECHR does not require that prior notice of exchanges of tax-related information be given to all persons potentially implicated. (43) That decision therefore related solely to an obligation to provide notice, and did not concern legal protection against an information order.
98. If one tax authority requires another party to provide it with information on bank accounts and assets belonging to third parties, it may be violating the rights of those third parties under Article 7 of the Charter.
(b) Infringement of Article 47 of the Charter by excluding legal remedies
99. It is therefore necessary to assess whether the right of third parties concerned under Article 47 of the Charter is violated by the exclusion of a legal remedy against the information order. This is the case if no effective remedy is guaranteed for the third parties concerned.
100. The special feature of third parties concerned consists in the fact that they are not directly participating in an administrative procedure. They are not directly involved in either the fiscal administrative procedure, like the taxable person, or in the procedure for the exchange of information, like the person required to provide information. Thus, third parties do not have any of the rights enjoyed by the parties, such as the right to be heard.
101. However, the orders of the requested authority concern third parties in so far as the requested authority requests personal data of the third parties concerned from another private party. In contrast to the addressee and the taxpayer, the third parties concerned cannot take action against any penalties that may be imposed for violating the order or against the subsequent tax assessment notice. Thus, in a system such as that in the present case, third parties concerned have absolutely no legal remedy — and thus no effective legal remedy — against information orders concerning them that are issued by the requested authority.
102. Contrary to the view taken by the French Republic, an indirect legal remedy in the context of subsequent State liability proceedings is not an effective remedy within the meaning of Article 47 of the Charter either. First of all, such a legal remedy, which is also subject to further conditions, cannot prevent a violation of fundamental rights, but can at most provide compensation for any damage suffered. However, secondary means of redress alone do not constitute an effective remedy. (44)
103. The French Republic’s reference to a legal remedy in tax proceedings subsequently instituted against, inter alia, the third parties concerned also comes to nothing. As already stated above, this line of argument does not apply in relation to the taxpayer, because, at the time of the interference with a fundamental right, it is not at all clear whether a tax assessment notice will actually be issued (see point 68 et seq. above). This applies a fortiori in relation to a third party concerned.
104. The French Republic puts forward the ‘hypothesis’ that the third parties concerned in the present case were ‘purely artificial’ companies held by the taxpayer. Their interests overlapped with those of the taxpayer. The taxpayer’s legal remedy was therefore sufficient. However, such companies also have their own legal personality and can be holders of their own fundamental rights. The same holds true if they are controlled by others. Even if there is a suspicion of an abusive arrangement, this does nothing to alter their existence and therefore their right to an effective remedy, if only so that they could dispel that suspicion before the courts.
105. Moreover, not all third parties potentially concerned by orders issued by requested authorities are affiliated with the taxpayer. This objection raised by the French Republic is therefore unable to do anything to alter the right of the third parties concerned to effective legal protection.
106. Lastly, the statements regarding Article 23 of the Convention on Mutual Administrative Assistance in Tax Matters in relation to taxpayers (see point 77 above) apply equally to third parties concerned.
107. Thus, the conclusion remains that the exclusion of legal remedies against information orders of the requested authority violates the right of third parties concerned to an effective remedy under Article 47 of the Charter.
(c) Conclusion
108. Third parties concerned by an information order issued in the context of an exchange between tax authorities of Member States pursuant to Directive 2011/16 may obtain judicial review of that order under Article 47 of the Charter. The exclusion of the possibility of a legal remedy infringes Article 47 of the Charter.
B. The respective second questions referred: foreseeable relevance within the meaning of Article 1(1) of Directive 2011/16
109. The respective second questions referred in Cases C‑245/19 and C‑246/19 are largely identical. They differ only in relation to the information requested by the requesting Member State, the Kingdom of Spain, from the requested Member State, the Grand Duchy of Luxembourg.
110. In essence, the referring court wishes to know how the criterion of ‘foreseeably relevant’ information contained in Article 5 in conjunction with Article 1(1) of Directive 2011/16 is to be interpreted. The determination of whether that criterion is fulfilled in each individual case is not a question of interpretation, but of application of EU law, and is therefore a task for the national court.
111. In this regard, the Court has already ruled, in the Berlioz case, that it is apparent from the wording of Article 1(1) and Article 5 of Directive 2011/16 that the words ‘foreseeably relevant’ describe a necessary characteristic of the requested information. The obligation imposed on the requested authority under Article 5 of Directive 2011/16 to cooperate with the requesting authority does not extend to the communication of information that is considered not to have that characteristic. (45)
112. Thus, the ‘foreseeable relevance’ of the requested information is a condition of the request. (46) The present case provides an opportunity to clarify the criteria according to which this criterion is to be assessed.
113. The concept of foreseeable relevance reflects that used in Article 26 of the OECD Model Tax Convention. The Court correctly justified this on the ground that the concepts used in Directive 2011/16 and in Article 26 of the OECD Model Tax Convention are similar in this respect. Accordingly, the explanatory memorandum to the proposal that led to the adoption of Directive 2011/16 (47) refers to the OECD Model Tax Convention. (48)
114. According to the Commentary to Article 26 of the OECD Model Tax Convention, (49) the Contracting States are also not at liberty to engage in ‘fishing expeditions’. They are not at liberty to request information that is unlikely to be relevant to the tax affairs of a given taxpayer. On the contrary, there must be a reasonable possibility that the requested information will be relevant. (50) Paragraph 8 of the Commentary to Article 26 of the OECD Model Tax Convention contains typical cases (51) in which foreseeable relevance can be assumed. The group of cases involving requests regarding accounts was subsequently added to this list of typical cases. (52) It is against that background that the referring court asks what relevance those amendments have for the interpretation of Directive 2011/16.
115. In what follows, I will first examine the question of whether subsequent amendments to the Commentary to the OECD Model Tax Convention are relevant to the interpretation of Directive 2011/16 (section 1 below). Then, I shall turn to the interpretation of the criterion of foreseeable relevance (section 2 below).
1. Relevance of the amendments to the Commentary to the OECD Model Tax Convention
116. The referring court asks, in particular, whether the development in the interpretation of Article 26 of the OECD Model Tax Convention may have to be taken into account for the purposes of interpreting Articles 1(1) and 5 of Directive 2011/16.
117. The Commentary to the OECD Model Tax Convention reflects the view on the understanding or interpretation of the Model Tax Convention by the Contracting States (53) and is regularly revised and amended.
118. As I have explained elsewhere, (54) OECD Model Tax Conventions are not legally binding, multilateral conventions under international law; they are the unilateral acts of an international organisation in the form of recommendations to its member countries. Even the OECD does not consider these recommendations to be binding; rather, under the OECD Rules of Procedure, the member countries must consider whether their implementation is opportune. (55) This applies a fortiori to the commentaries published by the OECD.
119. These legal views on the OECD Model Tax Convention do not have a direct influence on the interpretation of a directive. This is the case even if the terms used in the Model Tax Convention and the directive are identical. In that sense, those commentaries simply reflect the opinion of the experts appointed by the OECD member countries, (56) not the views of the EU legislature or a parliamentary legislature of its Member States. (57)
120. The Court has already correctly held that a rule in a double taxation agreement, interpreted in the light of the commentaries to the OECD Model Tax Convention, cannot restrict EU law. (58) This applies a fortiori to changes to the OECD Model Tax Convention and the commentaries published after the adoption of the directive. Otherwise, the OECD member countries — which, of course, are not necessarily Member States of the European Union — would be able to decide on the interpretation of an EU directive.
121. Consequently, the change in the interpretation of Article 26 of the OECD Model Tax Convention in the commentary thereto does not automatically entail a change in the interpretation of Article 5 in conjunction with Article 1(1) of Directive 2011/16. Even if the experts of the OECD member countries are now in agreement that a request for information regarding all the accounts of a taxpayer and all unspecified accounts of other persons connected with the taxpayer in question held with a particular bank is an example of foreseeable relevance within the meaning of Article 26 of the OECD Model Tax Convention, it does not automatically follow that the same applies to Article 1(1) and Article 5 of Directive 2011/16.
122. The Court may — if convinced by the interpretation of Article 26 of the OECD Model Tax Convention — adopt the OECD approach and interpret the Directive in a similar way. However, there is no legal automatism in this respect.
123. It is therefore necessary to examine whether the Commentary to Article 26 of the OECD Model Tax Convention is convincing and transferable. Amendments to the Commentary to the OECD Model Tax Convention after the adoption of a legal act of the Union would require more intensive scrutiny than the version of the commentary at the time of adoption of that act. This is because subsequent amendments cannot reflect the will of the EU legislature.
124. The referring court points out that requests for information under Directive 2011/16 involve an interference with the fundamental rights of Union citizens. Pursuant to Article 52(1) of the Charter, such limitations must be provided for by law. They must therefore be based on a decision of the national or EU legislature. Neither the OECD Model Tax Convention nor the commentary relating thereto would meet this requirement. Nor did the Court postulate in the N Luxembourg 1 and Others judgment (59) cited by the referring court that amendments to the Model Tax Convention or the commentary after the adoption of a directive automatically change the interpretation of that directive.
125. It therefore remains the case that the concept of ‘foreseeable relevance’ pursuant to Article 5 in conjunction with Article 1(1) of Directive 2011/16 is to be interpreted autonomously on the basis of EU law. Consequently, it is primarily the wording and purpose of the concept that are decisive.
2. The two objectives of the criterion of ‘foreseeable relevance’
126. According to recital 9 of Directive 2011/16, the standard of ‘foreseeable relevance’ is intended to provide for exchange of information in tax matters to the widest possible extent. It is also intended 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. (60)
127. In my view, this means that, on the one hand, the requested information must have a certain material relevance to the tax assessment in the requesting Member State (material aspect, see section a). On the other hand, Member States should not be allowed to engage in mere ‘fishing expeditions’ (that is to say, a request for information amounting to a shot in the dark) (formal aspect, see section b).
(a) Limited assessment of the foreseeable relevance in the requested Member State so as to facilitate the exchange of information
128. The Court has already discussed the material aspect at great length in the Berlioz case. According to that judgment, it is for the requesting authority to assess, according to the circumstances of the case, the foreseeable relevance of the requested information to that investigation on the basis of the progress made in the proceedings and after having exhausted the usual sources of information which it has been able to use in the circumstances. The requesting authority has a margin of discretion in that regard. (61) The scope of the requested authority’s review is limited. (62)
129. Accordingly, the requested authority must, in principle, trust the requesting authority and assume that the request for information it has been sent both complies with the domestic law of the requesting authority and is necessary for the purposes of its investigation. Furthermore, the requested authority does not generally have extensive knowledge of the factual and legal framework prevailing in the requesting State. Consequently, the requested authority cannot substitute its own assessment of the possible usefulness of the information sought for that of the requesting authority. (63)
130. The review to be carried out by the requested authority is limited to enabling that authority to satisfy itself that the information sought is not devoid of any foreseeable relevance having regard to the identity of the taxpayer concerned and that of any third party referred to in the request for information, and to the requirements of the tax investigation concerned. (64) This standard of control is equally applicable to the courts in the requested Member State. (65) Consequently, the information requested must not be manifestly irrelevant to the requirements of the tax investigation of the requesting authority.
131. In order to enable the requested authority to proceed with such an — albeit limited — assessment, the requesting authority must provide an adequate statement of reasons explaining its request for information. It must explain the purpose of the information sought in the context of the tax procedure under way in respect of the taxpayer identified in the request. (66) The reasons given must put the national court in a position in which it may carry out the review of the legality of the request for information. (67) A purely formal statement of reasons that does not explain why the information requested is relevant under national law to the tax procedure in the requesting Member State does not satisfy these requirements. It is, however, for the referring court to review the statement of reasons for the request for information.
(b) Not engaging in ‘fishing expeditions’
132. According to recital 9 of Directive 2011/16, the criterion of ‘foreseeable relevance’ is also intended to clarify that Member States are not at liberty to engage in ‘fishing expeditions’ (points 126 and 127 of this Opinion). This is also intended to ensure, inter alia, the functioning of the information exchange system so that it is not overloaded by requests amounting to a ‘shot in the dark’.
133. Thus, the decisive question is when, in the context of Directive 2011/16, does a request amount to an impermissible ‘fishing expedition’ and when does it amount to permissible administrative assistance for the investigation of a case. The Court has not yet clarified this question in the context of cross-border mutual assistance.
134. However, the Court has considered a comparable problem in competition law. In order to detect and penalise anti-competitive conduct on the part of undertakings, the Commission may order inspection decisions against the undertakings concerned. (68) In that regard, the second sentence of Article 20(4) of Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) clarifies that in such decisions the Commission is to specify, in particular, the subject matter and purpose of the inspection. (69) This serves to ensure that the Commission does not carry out investigations on a speculative basis, without having any concrete suspicions, (70) a practice for which the English term ‘fishing expeditions’ is often used.
135. As I have previously explained in this context, (71) in its inspection decisions, the Commission is therefore obliged to indicate as precisely as possible the evidence sought and the matters to which the investigation must relate. (72) In other words, the statement of reasons for the inspection decision must indicate the presumed facts which the Commission intends to investigate. (73) What is required is thus a definition of the infringements of competition law suspected by the Commission which is understandable to the undertakings concerned.
136. This reasoning can essentially be transferred to the present situation of cross-border mutual assistance. In this context also, it is necessary that the requested authority be able to identify what the requesting authority intends to investigate. As stated above, it must at least assess whether the information is not manifestly irrelevant in any event. Furthermore, such a statement of reasons is important for the fundamental right to a legal remedy of the addressee (see point 47 et seq. above), the taxpayer concerned (see point 59 et seq. above) and any third parties concerned (see point 83 et seq. above), so that they can effectively defend themselves against an unjustified request for information by the requested authority.
137. However, if the requesting authority must indicate the presumed facts which it wishes to investigate by means of the request for information, an account inquiry regarding all ‘unspecified accounts of other persons connected with the taxpayer in question’, for example, does not automatically satisfy these requirements.
138. Rather, the requesting authority must normally include in the request for information the facts which it wishes to investigate, or at least concrete suspicions surrounding those facts, and their relevance for tax purposes. These reasons must enable the requested State to justify the mutual assistance together with the associated interferences with fundamental rights (of the addressee, the taxpayer or third parties concerned) before its courts. The requirements for the duty to state reasons become more stringent as the scope and sensitivity of the requested information increase. (74)
139. A request for assistance therefore lacks foreseeable relevance if it is made with a view to obtaining evidence on a speculative basis, without having any concrete connection to ongoing tax proceedings. (75)
140. Various factors must be taken into account when distinguishing foreseeably relevant information from impermissible ‘fishing expeditions’. First of all, the subject matter of the requesting authority’s investigation and the allegation that it has made under tax law must be considered. A further significant factor is the previous conduct (76) of the taxpayer. In that context, the Swiss Federal Court rightly requires that there must be concrete evidence of a violation of tax obligations. (77)
141. This would be the case here, for instance, if the taxpayer had previously concealed accounts or relationships with third parties connected with her, or if she had provided contradictory information in the tax procedure. Lastly, account must be taken of the circumstances identified by the requesting tax administration so far. For example, there may be a particular need for a request for information in the case of extensive networks of undertakings with unclear financial transactions between them. The same applies if the investigations conducted to date have revealed contradictory information in that regard, which the requesting authority now intends to clarify with the help of the bank A.
142. In the present case, therefore, the Spanish tax authority must provide, for example, evidence substantiating why it assumes that the taxpayer holds other accounts with the bank A, why it assumes that there is further undisclosed income and why it suspects that assets have been transferred between the taxpayer and the companies B, C and D.
143. In the absence of such concrete evidence, a request for information seeking to identify all the taxpayer’s accounts held with a bank and all unspecified accounts of third parties which are in some way connected with the taxpayer is not permissible under Directive 2011/16, but constitutes an impermissible ‘fishing expedition’.
144. However, the necessary distinction must be made in the context of an overall assessment, taking into account all the circumstances of the individual case, and is therefore a matter for the referring court.
145. If the referring court concludes that a request for information constitutes an impermissible ‘fishing expedition’, the requested tax administration should not comply with the request for information. Pursuant to Article 1(1) and Article 5 of Directive 2011/16, and in the light of recital 9 of that directive, Member States are not at liberty to engage in ‘fishing expeditions’.
3. Conclusion regarding the respective second questions referred
146. Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that the requesting authority must state the reasons for the request for information in order to enable the requested authority to assess whether the information is not manifestly lacking in foreseeable relevance to the tax assessment conducted by the requesting authority. The request must provide concrete evidence of the facts or transactions that are relevant for tax purposes, so as to rule out an impermissible ‘fishing expedition’.
VI. Conclusion
147. I therefore propose that the questions referred by the Cour administrative (Higher Administrative Court, Luxembourg) be answered as follows:
(1) Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a decision by which an authority requested to provide assistance pursuant to Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/99/EEC requires a person to provide information concerning a taxpayer or third party may be challenged by that person, the taxpayer and third parties concerned before the courts of the requested Member State.
(2) Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that the requesting authority must state the reasons for the request for information in order to enable the requested authority to assess whether the requested information is not manifestly lacking in foreseeable relevance to the tax assessment conducted by the requesting authority. The request must provide concrete evidence of the facts or transactions that are relevant for tax purposes, so as to rule out an impermissible ‘fishing expedition’.