Legal professional privilege and the validity of certain provisions of DAC6 in light of the charter of fundamental rights of the European Union: Opinion statement ECJ-TF 1/2025 on the CJEU decision of 8 December 2022 in Orde van Vlaamse Balies (Case C-694/20) and of 29 July 2024 in Belgian Association of Tax Lawyers (Case C-623/22)

This is an Opinion Statement prepared by the CFE ECJ Task Force1 on the Decisions of the CJEU on the validity of certain aspects of DAC6 as regards the Charter of Fundamental Rights of the European Union (the “DAC6 cases”), in which the Court of Justice of the EU delivered its decisions on 8 December 2022 (Grand Chamber) and 29 July 2024 (Second Chamber). The DAC6 cases concern the question whether some obligations to report certain cross-border arrangements violate rights recognized by the Charter of Fundamental Rights of the European Union and, therefore, affect the validity of provisions of DAC6. In both cases, the CJEU delivers preliminary rulings on questions raised by the Belgian Constitutional Court (Dutch-speaking and French-speaking sections) on the validity of certain provisions of DAC6 with the Charter of Fundamental Rights of the EU. 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. This Opinion Statement 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.