Language of document : ECLI:EU:C:2017:373

Case C‑682/15

Berlioz Investment Fund SA

v

Directeur de l’administration des contributions directes

(Request for a preliminary ruling from the Cour administrative (Luxembourg))

(Reference for a preliminary ruling — Directive 2011/16/EU — Administrative cooperation in the field of taxation — Article 1(1) — Article 5 — Request for information sent to a third party — Refusal to respond — Penalty — Concept of ‘foreseeable relevance’ of the information requested — Review by the requested authority — Review by a court — Scope — Charter of Fundamental Rights of the European Union — Article 51 — Implementation of EU law — Article 47 — Right to an effective judicial remedy — Access of the court and of the third party to the request for information sent by the requesting authority)

Summary — Judgment of the Court (Grand Chamber), 16 May 2017

1.        Fundamental rights — Charter of Fundamental Rights of the European Union — Scope — Implementation of EU law — National legislation providing for a pecuniary penalty in the event of a refusal to supply information in accordance with Directive 2011/16 — Included

(Charter of Fundamental Rights of the European Union, Art. 51(1); Council Directive 2011/16, Arts 18 and 22(1))

2.        Fundamental rights — Right to effective judicial protection — Limits — Information order enabling a response to be given to a request made on the basis of Directive 2011/16 and a measure penalising failure to comply with that order — Included — Condition — Review of the legality of the information order

(Charter of Fundamental Rights of the European Union, Art. 47)

3.        Approximation of laws — Administrative cooperation in the field of taxation — Directive 2011/16 — Exchange of information on request — Request for information sent to a third party — Triggering of an obligation on the part of the requested Member State to act on that request and legality of an information order sent by that Member State to a relevant person — Condition — Foreseeable relevance of the information requested — Assessment to be carried out by the requesting authority — Limits

(Council Directive 2011/16, Arts 1(1), 5 and 17(1))

4.        Approximation of laws — Administrative cooperation in the field of taxation — Directive 2011/16 — Exchange of information on request — Request for information sent to a third party — Examination by the requested authority of the validity of that request — Obligations of the requesting authority — Provision of an adequate statement of reasons explaining the purpose of the information sought

(Council Directive 2011/16, Arts 1(1), 5 and 17(1))

5.        Approximation of laws — Administrative cooperation in the field of taxation — Directive 2011/16 — Exchange of information on request — Request for information sent to a third party — Examination by the requested authority of the validity of that request — Scope — Right to effective judicial protection — Judicial review of a penalty imposed on the basis of failure to comply with an information order — Review of the legality of that information order — Included

(Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 2011/16, Arts 1(1) and 5)

6.        Fundamental rights — Right to effective judicial protection — Directive 2011/16 — Administrative cooperation in the field of taxation — Judicial review of a request for information sent to a third party — Right of access to that request for the court of the requested Member State — No such right of access for the relevant person concerned by that request

(Charter of Fundamental Rights of the European Union, Art. 47; Directive 2011/16, Arts 16 and 20(2))

1.      Article 51(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a Member State implements EU law within the meaning of that provision, and that the Charter of Fundamental Rights of the European Union is therefore applicable, when that Member State makes provision in its legislation for a pecuniary penalty to be imposed on a person who may be the subject of administrative measures (a ‘relevant person’) who refuses to supply information in the context of an exchange between tax authorities based, in particular, on the provisions of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC.

The fact that Directive 2011/16 does not make express provision for penalties to be imposed does not mean that penalties cannot be regarded as involving the implementation of that directive and, consequently, falling within the scope of EU law. The concepts of ‘measures aimed at gathering information’ within the meaning of Article 18 of the directive and ‘necessary measures to ensure the smooth operation of the administrative cooperation arrangements’ within the meaning of Article 22(1) of the directive are capable of encompassing such penalties.

In those circumstances, it is irrelevant that the national provision serving as the basis for a penalty such as that imposed on Berlioz is included in a law that was not adopted in order to transpose Directive 2011/16, since the application of that national provision is intended to ensure that of the directive (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 28).

(see paras 39, 40, 42, operative part 1)

2.      Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a relevant person on whom a pecuniary penalty has been imposed for failure to comply with an administrative decision directing that person to provide information (‘information order’) in the context of an exchange between national tax administrations pursuant to Directive 2011/16 is entitled to challenge the legality of that decision.

The Court has consistently held that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (see, to that effect, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 19 to 21, and of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraphs 72 and 73).

As regards, specifically, the requirement of a right guaranteed by EU law within the meaning of Article 47 of the Charter, it should be borne in mind that, according to settled case-law, protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any natural or legal person 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 22 October 2002, Roquette Frères, C‑94/00, EU:C:2002:603, paragraph 27, and order of 17 November 2005, Minoan Lines v Commission, C‑121/04 P, not published, EU:C:2005:695, paragraph 30).

The second paragraph of Article 47 of the Charter provides that everyone is entitled to a hearing by an independent and impartial tribunal. Compliance with that right assumes that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues.

Consequently, as the Advocate General noted in point 80 of his Opinion, the national court hearing an action against the pecuniary administrative penalty imposed on the relevant person for failure to comply with an information order must be able to examine the legality of that information order if it is to satisfy the requirements of Article 47 of the Charter.

(see paras 49, 51, 55, 56, 59, operative part 2)

3.      Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that the ‘foreseeable relevance’ of the information requested by one Member State from another Member State is a condition which the request for information must satisfy in order for the requested Member State to be required to comply with that request, and thus a condition of the legality of the information order addressed by that Member State to a relevant person and of the penalty imposed on that person for failure to comply with that information order.

The aim of the concept of foreseeable relevance according to recital 9 of Directive 2011/16 is thus to enable the requesting authority to obtain any information that seems to it to be justified for the purpose of its investigation, while not authorising it manifestly to exceed the parameters of that investigation nor to place an excessive burden on the requested authority.

It is therefore for that authority, which is in charge of the investigation from which the request for information arises, 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, in accordance with Article 17(1) of Directive 2011/16, after having exhausted the usual sources of information which it has been able to use in the circumstances.

Although the requesting authority has a discretion in that regard, it cannot request information that is of no relevance to the investigation concerned.

(see paras 68, 70, 71, 74, operative part 3)

4.      See the text of the decision.

(see paras 78-80)

5.      Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that verification by the requested authority to which a request for information has been submitted by the requesting authority pursuant to that directive is not limited to the procedural regularity of that request but must enable the requested 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 asked to provide the information, and to the requirements of the tax investigation concerned. Those provisions of Directive 2011/16 and Article 47 of the Charter must be interpreted as meaning that, in the context of an action brought by a relevant person against a penalty imposed on that person by the requested authority for non-compliance with an information order issued by that authority in response to a request for information sent by the requesting authority pursuant to Directive 2011/16, the national court not only has jurisdiction to vary the penalty imposed but also has jurisdiction to review the legality of that information order. As regards the condition of legality of that information order, which relates to the foreseeable relevance of the requested information, the courts’ review is limited to verification that the requested information manifestly has no such relevance.

(see para. 89, operative part 4)

6.      The second paragraph of Article 47 of the Charter must be interpreted as meaning that, in the context of a judicial review by a court of the requested Member State, that court must have access to the request for information addressed to the requested Member State by the requesting Member State. The relevant person does not, however, have a right of access to the whole of that request for information, which is to remain a secret document in accordance with Article 16 of Directive 2011/16. In order for that person to be given a full hearing of his case in relation to the lack of any foreseeable relevance of the requested information, it is sufficient, in principle, that he be in possession of the information referred to in Article 20(2) of that directive.

(see para. 101, operative part 5)