# C_2017239EN.01000801.xml

| 24.7.2017 | EN | Official Journal of the European Union | C 239/8 |
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24.7.2017

EN

Official Journal of the European Union

C 239/8

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Judgment of the Court (Grand Chamber) of 16 May 2017 (request for a preliminary ruling from the Cour administrative — Luxembourg) — Berlioz Investment Fund SA v Directeur de l’administration des contributions directes

(Case C-682/15) (1)

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((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))

(2017/C 239/10)

Language of the case: French

Referring court

Referring court

Cour administrative

Parties to the main proceedings

Parties to the main proceedings

Applicant: Berlioz Investment Fund SA

Applicant:

Defendant: Directeur de l’administration des contributions directes

Defendant:

Operative part of the judgment

Operative part of the judgment

| 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. |
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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.

| 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. |
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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.

| 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. |
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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.

| 4. | 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. |
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4.

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.

| 5. | The second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union 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. |
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5.

The second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union 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.

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(1)  OJ C 78, 29.2.2016.

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