Abstract;Judgment — ECLI:EU:C:2024:639
Date: 2024-07-29
Language of the case: French
Court formation: Second Chamber
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-623/22 – 1 
Case C-623/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
29 September 2022 
Referring court:  
Cour constitutionnelle (Belgium) 
Date of the decision to refer:  
15 September 2022 
Applicants:  
Belgian Association of Tax Lawyers and Others 
Ordre des barreaux francophones et germanophone 
Orde van Vlaamse Balies and Others 
Institut des conseillers fiscaux et des experts-comptables and Others 
Interveners:  
Conseil des barreaux européens  
Conseil national des barreaux de France 
  
1. Subject of the action in the main proceedings: 
1 Council Directive (EU) 2018/822 of 25 May 2018 amended Directive 2011/16/EU 
on administrative cooperation in the field of taxation. 
2 The context and purpose of that amendment is apparent, in particular, from 
recital 2 of Directive 2018/822: 
‘(2)  Member States find it increasingly difficult to protect their national tax 
bases from erosion as tax-planning structures have evolved to be particularly 
sophisticated and often take advantage of the increased mobility of both capital 
and persons within the internal market. Such structures commonly consist of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-623/22 
 
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arrangements which are developed across various jurisdictions and move taxable 
profits towards more beneficial tax regimes or have the effect of reducing the 
taxpayer’s overall tax bill. As a result, Member States often experience 
considerable reductions in their tax revenues, which hinder them from applying 
growth-friendly tax policies. It is therefore critical that Member States’ tax 
authorities obtain comprehensive and relevant information about potentially 
aggressive tax arrangements. Such information would enable those authorities to 
react promptly against harmful tax practices and to close loopholes by enacting 
legislation or by undertaking adequate risk assessments and carrying out tax 
audits. However, the fact that tax authorities do not react to a reported 
arrangement should not imply acceptance of the validity or tax treatment of that 
arrangement.’  
3 In practice, Member States must designate a competent authority to assume 
responsibility for the exchange between Member States of the necessary 
information about potentially aggressive cross-border tax arrangements. In order 
to ensure that such information is available to the competent authorities, the 
directive introduces a reporting obligation with respect to such arrangements. 
4 The reporting obligation is primarily incumbent on the so-called intermediaries 
who are usually involved in the implementation of such arrangements. However, 
if there are no such intermediaries, or if they are able to invoke a legal 
professional privilege, the reporting obligation shifts to the taxpayer. Directive 
2018/822 states in that regard in recitals 6 and 8: 
‘(6)  The reporting of potentially aggressive cross-border tax-planning 
arrangements can contribute effectively to the efforts for creating an environment 
of fair taxation in the internal market. In this light, an obligation for intermediaries 
to inform tax authorities of certain cross-border arrangements that could 
potentially be used for aggressive tax planning would constitute a step in the right 
direction. …  
(8) To ensure the proper functioning of the internal market and to prevent 
loopholes in the proposed framework of rules, the reporting obligation should be 
placed upon all actors that are usually involved in designing, marketing, 
organising or managing the implementation of a reportable cross-border 
transaction or a series of such transactions, as well as those who provide 
assistance or advice. It should not be ignored either that, in certain cases, the 
reporting obligation would not be enforceable upon an intermediary due to a legal 
professional privilege or where there is no intermediary because, for instance, the 
taxpayer designs and implements a scheme in-house. It would thus be crucial that, 
in such circumstances, tax authorities do not lose the opportunity to receive 
information about tax-related arrangements that are potentially linked to 
aggressive tax planning. It would therefore be necessary to shift the reporting 
obligation to the taxpayer who benefits from the arrangement in such cases’. 
BELGIAN ASSOCIATION OF TAX LAWYERS AND OTHERS 
 
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5 The directive was transposed into Belgian law by the Law of 20 December 2019 
(‘the contested legislation’) which amends various tax laws applicable to 
individuals and companies and, in particular, implements the reporting obligation 
introduced by the directive. The fines provided for in the event of an infringement 
range from EUR 1 250 to 100 000. 
6 The applicants, from the legal, tax and accounting professions, criticise the 
obligation imposed upon them on that basis to provide the tax authorities with 
information concerning their clients that could reveal tax avoidance schemes. 
7 They seek the annulment of the contested legislation in that it infringes, in that 
regard, general principles and, in particular, principles guaranteeing legal 
professional privilege. 
8 In its examination of the action, the Cour constitutionnelle (Constitutional Court, 
Belgium) states that the contested legislation literally reproduces numerous 
passages of Directive 2018/822 and refers questions to the Court of Justice for a 
preliminary ruling on the validity of Directive 2018/822 in the light of general 
principles and rights guaranteed, inter alia, by the Charter of Fundamental Rights 
of the European Union. 
2. Provisions in question: 
Treaty of the European Union 
9 Article 6 TEU provides: 
‘3. Fundamental rights, as guaranteed by the European Convention for the 
Protection of Human Rights and Fundamental Freedoms and as they result from 
the constitutional traditions common to the Member States, shall constitute 
general principles of the Union’s law’.  
European Convention for the Protection of Human Rights and Fundamental 
Freedoms, signed in Rome on 4 November 1950 (‘ECHR’) 
10 Article 7 ECHR provides: 
‘1. No one shall be held guilty of any criminal offence on account of any act or 
omission which did not constitute a criminal offence under national or 
international law at the time when it was committed. Nor shall a heavier penalty 
be imposed than the one that was applicable at the time the criminal offence was 
committed’.  
11 Article 8 ECHR provides: 
‘1. Everyone has the right to respect for his private and family life, his home 
and his correspondence.  
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2. There shall be no interference by a public authority with the exercise of this 
right except such as is in accordance with the law and is necessary in a democratic 
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of 
health or morals, or for the protection of the rights and freedoms of others’. 
Charter of Fundamental Rights of the European Union 
12 Article 7 of the Charter provides: 
‘Respect for private and family life 
Everyone has the right to respect for his or her private and family life, home and 
communications’. 
13 Article 20 of the Charter provides: 
‘Equality before the law 
Everyone is equal before the law’. 
14 Article 21 of the Charter provides: 
‘Non-discrimination 
1. Any discrimination based on any ground such as sex, race, colour, ethnic or 
social origin, genetic features, language, religion or belief, political or any other 
opinion, membership of a national minority, property, birth, disability, age or 
sexual orientation shall be prohibited. 
2. Within the scope of application of the Treaty establishing the European 
Community and of the Treaty on European Union, and without prejudice to the 
special provisions of those Treaties, any discrimination on grounds of nationality 
shall be prohibited’. 
15 Article 49 of the Charter reads as follows: 
‘Principles of legality and proportionality of criminal offences and penalties 
1. No one shall be held guilty of any criminal offence on account of any act or 
omission which did not constitute a criminal offence under national law or 
international law at the time when it was committed. Nor shall a heavier penalty 
be imposed than that which was applicable at the time the criminal offence was 
committed. If, subsequent to the commission of a criminal offence, the law 
provides for a lighter penalty, that penalty shall be applicable’. 
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Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 
2011/16/EU as regards mandatory automatic exchange of information in the field 
of taxation in relation to reportable cross-border arrangements 
16 Article 1 provides: 
‘Directive 2011/16/EU is amended as follows: 
(1) Article 3 is amended as follows: 
… 
(b) the following points are added: 
“18. ‘cross-border arrangement’ means an arrangement concerning either more 
than one Member State or a Member State and a third country where at least one 
of the following conditions is met: 
(a) not all of the participants in the arrangement are resident for tax purposes in 
the same jurisdiction;  
(b) one or more of the participants in the arrangement is simultaneously resident 
for tax purposes in more than one jurisdiction;  
(c) one or more of the participants in the arrangement carries on a business in 
another jurisdiction through a permanent establishment situated in that jurisdiction 
and the arrangement forms part or the whole of the business of that permanent 
establishment; 
(d) one or more of the participants in the arrangement carries on an activity in 
another jurisdiction without being resident for tax purposes or creating a 
permanent establishment situated in that jurisdiction …  
For the purposes of points 18 to 25 of this Article, Article 8ab and Annex IV, an 
arrangement shall also include a series of arrangements. An arrangement may 
comprise more than one step or part. 
19. ‘reportable cross-border arrangement’ means any cross-border arrangement 
that contains at least one of the hallmarks set out in Annex IV. 
20. ‘hallmark’ means a characteristic or feature of a cross-border arrangement that 
presents an indication of a potential risk of tax avoidance, as listed in Annex IV. 
21. ‘intermediary’ means any person that designs, markets, organises or makes 
available for implementation or manages the implementation of a reportable cross-
border arrangement. 
… 
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23. ‘associated enterprise’ means a person who is related to another person in at 
least one of the following ways: 
… 
24. ‘marketable arrangement’ means a cross-border arrangement that is designed, 
marketed, ready for implementation or made available for implementation without 
a need to be substantially customised. 
25. ‘bespoke arrangement’ means any cross-border arrangement that is not a 
marketable arrangement.” 
… 
(2) the following Article is inserted: 
Article 8ab 
Scope and conditions of mandatory automatic exchange of information on 
reportable cross-border arrangements 
1. Each Member State shall take the necessary measures to require 
intermediaries to file information that is within their knowledge, possession or 
control on reportable cross-border arrangements with the competent authorities 
within 30 days beginning: 
… 
2. In the case of marketable arrangements, Member States shall take the 
necessary measures to require that a periodic report be made by the intermediary 
every 3 months providing an update which contains new reportable 
information …. 
… 
5. Each Member State may take the necessary measures to give intermediaries 
the right to a waiver from filing information on a reportable cross-border 
arrangement where the reporting obligation would breach the legal professional 
privilege under the national law of that Member State. In such circumstances, each 
Member State shall take the necessary measures to require intermediaries to 
notify, without delay, any other intermediary or, if there is no such intermediary, 
the relevant taxpayer of their reporting obligations under paragraph 6. 
… 
6. Each Member State shall take the necessary measures to require that, where 
there is no intermediary or the intermediary notifies the relevant taxpayer or 
another intermediary of the application of a waiver under paragraph 5, the 
obligation to file information on a reportable cross-border arrangement lie with 
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the other notified intermediary, or, if there is no such intermediary, with the 
relevant taxpayer. 
7. The relevant taxpayer with whom the reporting obligation lies shall file the 
information within 30 days, beginning on the day after the reportable cross-border 
arrangement is made available for implementation to that relevant taxpayer, or is 
ready for implementation by the relevant taxpayer, or when the first step in its 
implementation has been made in relation to the relevant taxpayer, whichever 
occurs first.’ 
17 Annex IV reads as follows: 
‘HALLMARKS 
Part I. Main benefit test 
Generic hallmarks under category A and specific hallmarks under category B and 
under points (b)(i), (c) and (d) of paragraph 1 of category C may only be taken 
into account where they fulfil the “main benefit test”. 
That test will be satisfied if it can be established that the main benefit or one of the 
main benefits which, having regard to all relevant facts and circumstances, a 
person may reasonably expect to derive from an arrangement is the obtaining of a 
tax advantage. 
… 
Part II. Categories of hallmarks 
A. Generic hallmarks linked to the main benefit test 
…’ 
3. Positions of the parties: 
18 At this stage of the proceedings, the Cour constitutionnelle has dismissed, at the 
outset, some of the pleas put forward, upheld some of the pleas by annulling some 
of the provisions of the contested legislation and, moreover, stayed the 
proceedings pending the decision of the Court of Justice on the five questions 
referred for a preliminary ruling in the present case and on the question referred in 
Orde van Vlamse Balies and Others (C-694/20). The pleas put forward by the 
relevant parties are essentially the following:  
Belgian Association of Tax Lawyers and Others 
19 First, it is disproportionate to impose a reporting obligation in respect of cross-
border arrangements for taxes other than corporation tax. The contested legislation 
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thus treats intermediaries and taxpayers who find themselves in essentially 
different situations in the same way, without reasonable justification therefor. 
Furthermore, the hallmarks listed in the annex to Directive 2018/822 are not 
suitable for taxes other than corporation tax. 
20 Second, the definition of intermediaries, taken word for word from the directive, 
is not sufficiently precise. That definition leads to identical obligations being 
placed upon persons who find themselves in essentially different situations.  
21 Third, it is not possible, on the basis of the contested legislation, to identify 
precisely the starting point of the reporting period. The reporting obligation may 
be triggered by the action of others that the intermediary is not necessarily aware 
of. Moreover, each failure to comply with the reporting obligation may result in a 
heavier penalty being imposed by reason of the previous failure, such that the 
same infringement may be subject to several sanctions. 
22 Fourth, the contested legislation entails an infringement, in several respects, of 
legal professional privilege: (1) the lawyer-intermediary cannot rely on legal 
professional privilege in the presence of a marketable arrangement, the definition 
of which is also too vague; (2) the option for the client to waive legal professional 
privilege is not in line with the public interest nature of that privilege; (3) the 
lawyer-intermediary who relies on legal professional privilege is still required to 
notify any other intermediary or intermediaries or the relevant taxpayer, who are 
not necessarily his clients; (4) the lawyer-intermediary is still required to comply 
with the reporting obligation if the other intermediaries are unable to do so; (5) the 
relevant taxpayer or taxpayers may require that the intermediaries bound by legal 
professional privilege provide them with all the information necessary to comply 
with the reporting obligation. 
23 According to the applicants, a restriction placed on legal professional privilege is 
admissible only if it can be justified by an overriding reason, is provided for by a 
clear and foreseeable law, and is strictly proportionate. This is not so in the 
present case. The applicants consider that it is apparent from the case-law of the 
European Court of Human Rights that the restrictions placed on legal professional 
privilege are proportionate only if they seek to combat illicit activity and if the 
intervention of the President of the Bar is provided for. Moreover, they note that 
the rules provided for by the contested legislation, which relate to lawful tax 
avoidance schemes, provide less protection for legal professional privilege than 
anti-money laundering rules, which relate to particularly serious criminal 
offences. 
Ordre des barreaux francophones et germanophone (Association of the French-
speaking and German-speaking Bars) 
24 According to the Ordre des barreaux francophones et germanophone, the 
contested legislation first of all disregards the principle of legal certainty in that 
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the provisions at issue are deliberately set out using vague and imprecise terms 
and concepts. 
First, the contested legislation does not define the concept of ‘arrangement’ which 
is nevertheless crucial. The applicant takes the view that the clarification provided 
by the contested legislation according to which ‘an arrangement may comprise 
more than one step or part’ (see point 18 added by Directive 2018/882 to Article 3 
of Directive 2011/16/EU) suggests that an arrangement may also comprise only 
one step or part, which increases uncertainty as to the meaning of that concept. 
Furthermore, it asserts that, contrary to what the travaux préparatoires suggest, 
the concept of ‘arrangement’ cannot be defined using the ‘hallmarks’ established 
by the contested legislation. 
Second, it submits that neither the wording of the legislation, nor the travaux 
préparatoires, make it possible to understand the scope of the terms ‘cross-border’ 
and of the concept of ‘participants in the arrangement’. 
Third, it observes that the contested legislation provides for five categories of 
hallmarks to determine whether or not a cross-border arrangement must be 
reported. It considers those hallmarks to be imprecise and irrelevant. It argues that 
the ‘main benefit test’, to which some hallmarks refer, is extremely subjective. 
Fourth, it takes the view that the information to be disclosed is both imprecise and 
unclear. In that regard, it notes, in particular, that the definition of ‘associated 
enterprise’ is not worded in sufficiently clear and precise terms. It observes that it 
is nevertheless essential that reportable information be precisely defined, since the 
failure to comply with the reporting obligation in full is subject to administrative 
penalties and fines of a criminal nature. 
25 Furthermore, the Ordre des barreaux francophones et germanophone maintains 
that the contested legislation infringes the right to respect for private life, the right 
to a fair trial and, in particular, legal professional privilege. 
First, it submits that the provisions at issue go beyond what is necessary to combat 
tax avoidance for the following reasons: (1) the contested legislation concerns 
lawful tax avoidance schemes; (2) the hallmarks are mainly aimed at direct taxes, 
which fall within the exclusive competence of the Member States; (3) isolated 
initiatives by the Member States are contrary to the fundamental freedoms of the 
European Union and to the Double Taxation Conventions; (4) existing legislation 
already makes relevant tax information accessible; (5) carrying out tax audits is of 
little use in the present case, in so far as the reported arrangements are lawful; (6) 
Directive (EU) 2016/1164, which concerns tax abuses, applies only to corporation 
tax and covers only non-genuine arrangements, so that it provides only very 
limited justification for the relevance of the reportable information in the present 
case. 
Second, the applicant considers that the interference is not defined in sufficiently 
clear and precise terms. It refers to its argument put forward in its first plea. 
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Third, it maintains that with regard to the intermediaries bound by legal 
professional privilege, the interference is not proportionate to the objective 
pursued for the following reasons: (1) the obligation for the lawyer to share 
information with another intermediary infringes legal professional privilege; (2) 
the contested legislation does not provide for the intervention of the President of 
the Bar; (3) the contested legislation does not monitor compliance with the 
obligations imposed upon intermediaries bound by legal professional privilege; 
(4) the reported arrangement is disproportionate, especially since there is a risk 
that the tax authorities will put pressure on the intermediaries to renounce 
activities that are nevertheless lawful; (5) it is disproportionate that the reporting 
obligation is based on the presence of a single hallmark without carrying out a 
concrete examination of the relevance of the reportable information; (6) the 
contested legislation creates the following dilemma for the lawyer-intermediary: 
non-compliance with the reporting obligation exposes him to administrative fines 
and penalties of a criminal nature, whereas filing information on an arrangement 
which should not reported exposes him to criminal, professional conduct and civil 
penalties for breach of legal professional privilege; (7) the administrative burden 
resulting from the contested legislation is unreasonably heavy.  
Conseil des barreaux européens (Council of the Bars and Law Societies of the 
European Union) 
26 The Conseil des barreaux européens intervened in support of the forms of order 
sought by the Ordre des barreaux francophones et germanophone set out above. In 
addition, the provisions governing the exemption from the reporting obligation for 
intermediaries bound by legal professional privilege are unclear.  
Conseil national des barreaux de France (French National Council of Bars) 
27 The Conseil national des barreaux de France refers to the arguments put forward 
by the Conseil des barreaux européens. It adds that the imprecise nature of the 
terms used by Directive 2018/822 creates a risk of excessively extending the 
reporting obligation to lawyers, contrary to Article 4(3) TEU, Article 2(2) TFEU, 
Articles 8 and 48 of the Charter and Article 6 ECHR. 
Orde van Vlamse Balies and Others 
28 The applicants criticise the contested legislation, in particular, in that it precludes 
a lawyer from relying on legal professional privilege in order to be exempted from 
the reporting declaration in relation to marketable arrangements. The contested 
legislation infringes, in that regard, the general principle of legal certainty and of 
legal professional privilege. In addition, Orde van Vlamse Balies and Others take 
the view that the concept of ‘marketable arrangement’ is too vague.  
29 Furthermore, they criticise the fact that the lawyer-intermediary who wishes to 
rely on legal professional privilege is required to inform the other intermediaries 
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involved, in writing and giving reasons, that he cannot fulfil his reporting 
obligation. They argue that it is impossible to fulfil that requirement without 
breaching legal professional privilege. Lastly, such a requirement is not necessary 
to ensure that the cross-border arrangement is reported, since the client, whether 
assisted by the lawyer or not, can inform the other intermediaries and ask them to 
fulfil their reporting obligation. 
Institut des conseillers fiscaux et des experts-comptables (Belgian Institute of Tax 
Advisors and Accountants) and Others 
30 According to the applicants, the contested legislation establishes, without 
reasonable justification, a difference in treatment between the intermediaries on 
the basis of whether they cooperate with other intermediaries or not. In the 
presence of several intermediaries, an intermediary who relies on legal 
professional privilege must inform the other intermediaries and give reasons 
therefor: either the other intermediaries are not bound by legal professional 
privilege and the obligation to inform thus infringes legal professional privilege, 
or the other intermediaries are also bound by legal professional privilege and the 
last intermediary is thus required, in breach of legal professional privilege, to fulfil 
the reporting obligation. It follows that, where an intermediary cooperates with 
other intermediaries, the contested provisions necessarily result in a breach of 
legal professional privilege. 
4. The Council of Ministers: 
31 The Council of Ministers points out that the contested provisions of the contested 
legislation reproduce the text of Directive 2018/822.  
32 It takes the view that the various concepts at issue are sufficiently clear:  
First, as regards the concept of intermediary, it considers that it is sufficiently 
clear as to enable an expert in that field to assess whether or not they are an 
intermediary. It adds that an intermediary is not presumed to have all the 
information which must be provided by the competent authority of a Member 
State. 
Secondly, it argues that the legislation makes it possible to determine precisely the 
starting point of the reporting period and that the obligation to declare an 
intermediary is not triggered by the action of another person. 
Third, as regards the concept of an arrangement, it states that it is not defined as it 
would not have made it possible effectively to counter aggressive tax planning. 
Fourthly, as regards the concept of participant, it states that the taxpayer 
concerned is always a participant, whereas the intermediary is a participant only if 
it plays an active role in the arrangement. 
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Fifth, as regards the hallmarks and the main benefit test, it takes the view that the 
intermediary and the taxpayer concerned are well placed to assess in a reasonable 
manner whether an arrangement pursues a primarily fiscal objective. According to 
the Council of Ministers, the fact that certain hallmarks are less suited to certain 
taxes is not contrary to the principles of legality and legal certainty, since the 
absence of a hallmark means that the scheme does not fall within the scope of the 
contested legislation. 
33 Furthermore, the Council of Ministers states that the sanctions provided for in the 
event of a failure to comply with the reporting requirements are effective, 
proportionate and dissuasive. 
34 As regards legal professional privilege, the Council of Ministers observes that it is 
not absolute. In its view, Directive 2018/822 and the contested legislation are 
justified by an overriding reason in the public interest, since they are intended to 
protect national tax bases from erosion and to create a fairer tax environment in 
the internal market. It notes that the provision of information on potentially 
aggressive tax arrangements allows Member States to react quickly through 
legislative changes, risk analyses or tax audits. Next, it states that the infringement 
of legal professional privilege is strictly proportionate to the objective pursued, 
since (1) the scope of the contested legislation is limited to the cross-border 
arrangements which must be the subject of a declaration, (2) a general derogation 
would lose its usefulness to Directive 2018/822, (3) legal professional privilege 
continues to apply to the determination of the legal situation and the defence of 
the customer, (4) the obligation to declare applies only if the person subject to 
legal professional privilege acts as an intermediary, (5) the reporting obligation is 
limited to potentially aggressive tax planning, (6) proof that the intermediary 
alleging legal professional privilege informed the other intermediaries or his client 
is necessary to enable the tax authorities to monitor compliance with the 
obligations under Directive 2018/822 and (7) the obligation to report marketable 
arrangements does not relate to information covered by legal professional 
privilege. It further states that the intermediary subject by legal professional 
privilege is released from the obligation to declare an arrangement as soon as he 
has duly notified another intermediary or the taxpayer concerned, without having 
to ensure that the latter actually make the declaration. It notes that there is nothing 
to prevent an intermediary lawyer from consulting the President of the Bar.  
35 The Council of Ministers further states that, with regard to the design, marketing 
or organisation of a cross-border arrangement, the situation of an intermediary 
lawyer is similar to that of another intermediary subject to legal professional 
privilege, so that there is no justification for a difference in treatment. 
36 The Council of Ministers adds that, where an intermediary lawyer alleging legal 
professional privilege informs in writing the other intermediaries (or, failing that, 
the taxpayer concerned) of their obligation to declare, the statement of reasons 
does not have to mention all the details of the arrangement, but concerns only the 
reason why legal professional privilege is alleged. 
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37 As regards, in particular, marketable arrangements, the Council of Ministers adds 
that the legislative section of the Conseil d’État (Council of State, Belgium) 
considered it justified that legal professional privilege should not apply in the case 
of a marketable arrangement. It states that a marketable arrangement cannot be 
protected by legal professional privilege, since it is conceived before the 
relationship between the lawyer and the client is formed. It takes the view that the 
fact that the declaration contains the name of the taxpayer concerned does not 
infringe legal professional privilege. Furthermore, it infers from the case-law of 
the Court of Justice that legal professional privilege cannot be alleged where the 
lawyer acts as a business agent and considers that this is the case where there is a 
marketable arrangement. Moreover, in its view, the complexity of marketable 
arrangements does not make it possible to place the burden of having to make a 
declaration on the taxpayers concerned. In addition, it submits that the concept of 
a marketable device is sufficiently precise.  
38 As regards the requirement for an intermediary lawyer wishing to allege legal 
professional privilege to provide to the other intermediaries concerned a statement 
in writing setting out the reasons why he cannot fulfil his obligation to declare, the 
Council of Ministers submits that legal professional privilege is not infringed in 
such a situation, since all intermediaries are already aware of the existence of the 
arrangement. In its view, it is possible for the various intermediaries to consult 
each other to determine which of them will make the declaration. In addition, it 
points out that, where an intermediary provides the other intermediaries concerned 
with a statement in writing setting out the reasons why he cannot fulfil his 
obligation to declare, the statement of reasons must relate only to the reason why 
legal professional privilege is invoked. 
39 The Council of Ministers states that the intermediary lawyer need not send his 
notification to all other intermediaries, but only to those known to be affected by 
the arrangement to be declared. In addition, in the absence of other intermediaries, 
the taxpayer concerned is necessarily the lawyer’s client. 
5. Assessment of the Cour constitutionnelle:  
40 The Cour constitutionnelle refers questions to the Court of Justice from the 
following six angles:  
1. Application of the contested legislation to taxes other than corporation tax 
41 Some of the applicants submit that there is no reasonable justification for the 
contested legislation to apply also to taxes other than corporation tax. They take 
the view that the legislation treats in the same way, without reasonable 
justification, intermediaries and taxpayers who find themselves in essentially 
different situations. 
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42 Such identical treatment, as criticised by the applicants, has its origin in Directive 
2018/882 in that it inserts provisions relating to the reporting obligation in respect 
of cross-border arrangements established in Directive 2011/116/EU and that 
obligation thus falls within the scope of that directive, which is not limited to 
corporation tax. 
43 According to the Court of Justice, ‘it must be noted at the outset that, by virtue of 
Article 6 EU, the Union is founded on the principle of the rule of law and it 
respects fundamental rights, as guaranteed by the European Convention for the 
Protection of Human Rights and Fundamental Freedoms, signed in Rome on 
4 November 1950, and as they result from the constitutional provisions common 
to the Member States, as general principles of Community law. It follows that the 
institutions are subject to review of the conformity of their acts with the treaties 
and the general principles of law, just like the Member States when they 
implement the law of the Union (see, inter alia, judgments of 27 February 2007, 
Gestoras Pro Amnistía and Others v Council, C-354/04 P, ECR I-0000, 
paragraph 51, and Segi and Others v Council, C-355/04 P, ECR I-0000, 
paragraph 51).  
It is common ground that those principles include the principle of the legality of 
criminal offences and penalties and the principle of equality and non-
discrimination, which are also reaffirmed respectively in Articles 49, 20 and 21 of 
the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 
7 December 2000 (OJ 2000 C 364, p. 1)’ (judgment of 3 May 2007, Advocaten 
voor de Wereld, C-303/05, EU:C:2007:261, paragraphs 45 and 46).  
44 According to the Court’s settled case-law, ‘the principle of equal treatment, as a 
general principle of EU law, requires comparable situations not to be treated 
differently and different situations not to be treated in the same way, unless such 
treatment is objectively justified’ (judgment of 6 June 2019, P. M. and Others, 
C-264/18, EU:C:2019:472, paragraph 28, citing the judgment of 16 December 
2008, Arcelor Atlantique et Lorraine and Others, C-127/07, EU:C:2008:728, 
paragraph 23 and the case-law cited). 
45 The explanatory memorandum to the proposal for Directive (EU) 2018/822 states: 
‘Article 115 of the Treaty on the Functioning of the European Union (TFEU) is 
the legal base for legislative initiatives in the field of direct taxation. Although no 
explicit reference to direct taxation is made, Article 115 refers to directives for the 
approximation of national laws as those directly affect the establishment or 
functioning of the internal market. For this condition to be met, it is necessary that 
proposed EU legislation in the field of direct taxation aims to rectify existing 
inconsistencies in the functioning of the internal market. In many cases, this 
would imply that EU measures exclusively address cross-border situations’ (COM 
(2017) 335 final, p. 6). 
46 It seems to follow therefrom that the intention was to target direct taxation. 
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47 However, Member States are required to make the reporting obligation in respect 
of cross-border arrangements applicable to all taxes falling within the scope of 
Directive 2011/16/EU, which not only includes corporation tax, but also direct 
taxes other than corporation tax and indirect taxes, such as registration fees under 
Belgian law. 
48 The Cour constitutionnelle refers its first question for a preliminary ruling in that 
regard. 
2. The principles of legality and legal certainty  
49 Some of the applicants criticise the vague nature of certain concepts of the 
contested legislation and, in particular, the concepts of ‘intermediary’, 
‘arrangement’, ‘participant’, ‘associated enterprise’, the terms ‘cross-border’, 
various ‘hallmarks’ and the ‘main benefit test’.  
50 The administrative fines and penalties sanctioning any failures to comply with the 
reporting obligation in respect of cross-border arrangements, constitute criminal 
sanctions.  
51 The principle of substantive legality in criminal matters which follows, in 
particular, from Article 7 ECHR and Article 49 of the Charter proceeds from the 
idea that the criminal law must be formulated in terms which ensure that everyone 
will know, when deciding to adopt a course of conduct, whether that conduct is 
punishable. It requires the legislature to indicate, in terms which are sufficiently 
precise and clear and provide legal certainty, which acts are to be punished, in 
order that, on the one hand, a person adopting a course of action may first make a 
due assessment of what the criminal consequences of that action will be, and, on 
the other hand, to ensure that not too much is left to the discretion of the judge.  
52 The requirement that offences are to be clearly defined by law is deemed to be 
fulfilled if the individual can know from the wording of the relevant provisions 
and, if need be, with the assistance of the court’s interpretation of it, what acts 
and/or omissions will make him criminally liable. 
53 It is only by examining a specific provision of criminal law that it is possible to 
determine, by taking account of the specific elements of the offence that it is 
intended to punish, whether the general terms used by the legislature are so vague 
that they disregard the principle of substantive legality in criminal matters. 
54 According to the Court of Justice, ‘the principle that offences and penalties must 
have a proper basis in law (nullum crimen, nulla poena sine lege), as enshrined in 
particular in the first sentence of Article 49(1) of the Charter’ constitutes ‘a 
specific expression of the general principle of legal certainty’ (judgment of 
20 December 2017, Vaditrans, C-102/16, EU:C:2017:1012, paragraph 50). 
55 The general principle of legal certainty ‘requires, on the one hand, that the rules of 
law be clear and precise and, on the other, that their application be foreseeable for 
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those subject to the law, in particular, where they may have adverse consequences 
for individuals and undertakings. Specifically, in order to meet the requirements 
of that principle, legislation must enable those concerned to know precisely the 
extent of the obligations imposed on them, and those persons must be able to 
ascertain unequivocally their rights and obligations and take steps accordingly’ 
(judgment of 29 April 2021, Banco de Portugal and Others, C-504/19, 
EU:C:2021:335, paragraph 51). 
56 With regard to that concept, the explanatory memorandum to the draft contested 
legislation states:  
‘The concept of “intermediary” is broadly defined in order to oblige any natural or 
legal person that, in one way or another, designs, proposes, implements, makes 
available for implementation or manages the implementation of a reportable cross-
border arrangement, to report that arrangement to the competent national 
authority. Intermediaries are also those who provide assistance or advice to 
taxpayers.  
… an advisor that gives a “second opinion” on a reportable cross-border 
arrangement, as submitted for an opinion, without the second opinion suggesting 
or making amendments to the arrangement in question, cannot be considered an 
intermediary on the basis of that second opinion. This is because the consultant 
does not in any way meet the definition of an intermediary as provided for by the 
directive since he did not design, offer or make available for implementation or 
manage the implementation. After all, the arrangement in question already 
existed. If the consultant makes, in any way, a contribution, amendment or 
suggestion to the existing arrangement, then he is indeed an intermediary with a 
reporting obligation’. 
57 In the course of committee discussions, the Deputy Prime Minister explained: 
‘… a tax advisor may be required to give a second opinion on a reportable 
arrangement. If his opinion is limited to expressing approval or disproval of the 
arrangement, he is not covered by the provisions of the directive because he does 
not meet the definition of an intermediary. By contrast, if he suggests certain 
additions or amendments to the arrangement, he will indeed fall within the scope 
of the directive and will be considered to be an intermediary subject to the 
reporting obligation. Furthermore, filing information, posting an invoice, carrying 
out a risk assessment or doing due diligence – in the context of which one merely 
becomes aware of an existing arrangement – do not entail a reporting obligation 
either’.  
58 Whilst the concepts of ‘cross-border arrangement’, ‘marketable arrangement’ and 
‘bespoke arrangement’ are defined in the contested legislation, the concept of 
‘arrangement’ is not defined in the contested legislation which merely states that 
‘an arrangement shall also include a series of arrangements’ and that ‘an 
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arrangement may comprise more than one step or part’. It is not, moreover, 
defined in Directive (EU) 2018/82.  
59 So far as concerns the concept of ‘arrangement’, the explanatory memorandum to 
the contested legislation states: 
‘… The independent implementation of a national system of taxation, for example 
the application of a deduction for income from innovation, cannot be regarded as 
an arrangement either, in so far as that application is not part of a larger series of 
steps or parts which can, in their entirety, be regarded as an arrangement. 
… 
Although the concept of “arrangement” is not defined in the directive, it is part of 
tax planning strategies which transfer taxable profits to tax regimes with more 
favourable arrangements which reduce the overall tax burden of the taxpayer. 
… 
In addition, daily movements in the normal course of business between the parent 
company and the permanent establishment abroad of that company cannot be 
regarded as an arrangement either where such activity is purely economic but not 
related to tax. 
… 
In addition, the mere performance of a transaction, such as a banking transaction, 
cannot in itself constitute a reportable cross-border arrangement …’. 
60 In the course of committee discussions, the Deputy Prime Minister added: 
‘… it is particularly difficult to define the concept of “arrangement”, in so far as 
the meaning of that concept changes over time due to legislative and technical 
changes. Hence the choice not to define the concept of “arrangement” too 
narrowly’. 
61 The contested legislation defines the terms ‘cross-border’ through the meaning of 
the concept of ‘cross-border arrangement’, which uses the concept of ‘participant’ 
in the arrangement. The concept of ‘participant’ is not defined by Directive 
2018/882 or by the contested legislation. 
62 With regard to the terms ‘cross-border’ and the concept of ‘participant’, the 
explanatory memorandum to the contested legislation states: 
‘a “cross-border arrangement” is defined as any arrangement concerning either 
more than one Member State or a Member State and a third country where at least 
one of the conditions provided for is met. Consequently, for example, the use, by a 
Belgian, of an account with the permanent establishment in Belgium of a French 
company cannot be regarded as a cross-border arrangement, in the absence of a 
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cross-border aspect. These conditions are all a variation on the same theme: one or 
one or more of the participants in the arrangement must, in one way or another, 
carry out an activity in another jurisdiction. 
…  
With regard to who may be regarded as a participant in the arrangement, it is 
implied from a combined reading of the definitions of intermediary and relevant 
taxpayer. In principle, where an intermediary does not take an active part in the 
arrangement that he imagined, proposed, implemented, made available for 
implementation or managed the implementation for the benefit of the taxpayer 
concerned, he is not a participant. This would be the case, for example, if the same 
intermediary also acts as a manager of an entity in his own arrangement. On the 
contrary, the mere granting of credit as the professional activity of the lender does 
not make the lender a participant. Moreover, the mere introduction of a tax 
declaration as an agent does not make the agent a participant. The relevant 
taxpayer, on the other hand, is always a participant. 
… 
In addition, that concept of participant must be interpreted in line with the purpose 
and spirit of the directive. In order to clarify this, arrangements established within 
a single Member State and which, in the light of fiscal transparency, do not 
require any contribution from the other Member States, for example, are not taken 
into account. Consequently, a participant in a cross-border arrangement can never 
be the intermediary, as long as he does not have an active role. Therefore, the 
intermediary may well be located in another Member State, although the 
arrangement itself from which his clients/relevant taxpayers actually benefit is 
simply established in a single Member State. 
… 
[…] it may be noted that in the absence of a cross-border aspect as regards the 
participants, there can be no question of an aggressive cross-border tax 
arrangement. Thus, the registration of a branch 23 product in Luxembourg by a 
Belgian, provided that it is not part of a larger set of steps or parts, is not a cross-
border arrangement because the conditions laid down in the definition of cross-
border arrangement are not met. In the example, the branch 23 product is not, 
moreover, a participant. A participant is resident for tax purposes or runs a 
business/carries out an activity, as is apparent from the definition of a cross-border 
arrangement. That is not the case for a branch 23 product. Furthermore, the gift of 
foreign real estate between two natural persons, resident for tax purposes in 
Belgium, for example, cannot be regarded as a cross-border arrangement because 
the real estate in that example is not a participant.  
Although the concept of arrangement as such is not defined by the directive, it is 
useful to distinguish between those who participate in the arrangement and those 
who do not. Thus, an intermediary is not, in principle, a participant. Where, for 
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example, he gives the advice, in the context of a particular arrangement, to work 
with a foreign company, he will not become a participant by virtue of that advice. 
However, if, in the context of the arrangement, he manages that company, he will 
effectively be a participant in the arrangement’. 
63 With regard to the ‘main benefit test’, the explanatory memorandum to the 
contested legislation states: 
‘The “main benefit test” is satisfied when it can be established that the main 
benefit or one of the main benefits which, having regard to all the relevant facts 
and circumstances, a person may reasonably expect to derive from an arrangement 
is the obtaining of a tax advantage. So far as concerns the concept of tax 
advantage, it is advisable to check, without going into excessive detail, whether 
there is one or more of the following elements: 
– an amount that is not included in the basis of assessment; 
– a taxpayer who benefits from a deduction; 
– a loss incurred for tax purposes; 
– no withholding tax is due and foreign tax is offset’.  
64 As for the concept of ‘hallmark’, the Cour constitutionnelle lists the various 
categories of hallmarks and reproduces certain indications included in the 
explanatory memorandum to the contested legislation.  
65 Concerning the concept of ‘associated enterprise’, the explanatory memorandum 
to the contested legislation states: 
‘The concept of associated enterprise is important with regard to the information 
that the intermediary must provide to the competent authority. 
The term “associated enterprise” is defined broadly. An associated enterprise is 
defined as any person who exercises control over another person in any way 
(management by another person, more than 25% of voting rights, capital or 
profit). It applies to both natural and legal persons. Natural persons, spouses and 
direct relatives are regarded as a single person’. 
66 In the light of the aforementioned provisions and the travaux préparatoires, the 
question arises as to whether the concepts referred to are sufficiently clear and 
precise to satisfy the principle of substantive legality in criminal matters and the 
principle of legal certainty. 
67 Since the contested provisions reproduce those of Directive 2018/822 and taking 
into account the fact that those concepts cannot be interpreted differently from one 
Member State to another, it is necessary, before ruling on the substance, to refer 
the second question to the Court of Justice for a preliminary ruling. 
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68 Furthermore, the right to respect for private life, as guaranteed, in particular, by 
Article 8 ECHR and by Article 7 of the Charter, has the essential aim of protecting 
individuals against interference in their private lives. That right is broad in scope. 
The case-law of the European Court of Human Rights shows that, inter alia, the 
protection of that right concerns the following personal data and information: 
name, address, professional activities, personal relationships, digital 
fingerprinting, film images, photographs, communications, DNA data, judicial 
data (convictions and indictments), financial information and information 
regarding property owned (see, inter alia, ECtHR, 26 March 1987, Leander v. 
Sweden, §§ 47 and 48; ECtHR, 4 December 2008, S. and Marper v. United 
Kingdom, §§ 66 to 68; ECtHR, 17 December 2009, B.B. v. France, § 57; 
ECtHR,10 February 2011, Dimitrov-Kazakov v. Bulgaria, §§ 29 to 31; ECtHR, 
18 October 2011, Khelili v. Switzerland, §§ 55 to 57; ECtHR, 18 April 2013, M.K. 
v. France, § 26; ECtHR, 18 September 2014, Brunet v. France, § 31). 
69 Having regard to the information that the report must contain, the reporting 
obligation in respect of cross-border arrangements interferes with the right to 
respect for the private life of intermediaries and concerned taxpayers. 
70 The right to respect for private life is not absolute. Interference by a public 
authority with the exercise of that right is not ruled out, to the extent it is provided 
for by a legal provision that is sufficiently precise, it satisfies a pressing social 
need in a democratic society, and it is proportionate to the legitimate aim pursued. 
71 Before ruling on the substance of the interference with the right to respect for 
private life, the second question is also referred to the Court of Justice in the light 
of the right to respect for private life. 
3. The starting point of the reporting period in respect of a reportable cross-
border arrangement 
72 Some of the applicants submit that it is not possible from the contested provisions 
to determine with the required degree of precision the point at which the reporting 
period in respect of a reportable cross-border arrangement starts. 
73 The question that arises is whether the starting point of the 30-day reporting 
period is fixed with the degree of precision required to satisfy the principle of 
substantive legality in criminal matters. 
74 Since the contested provisions reproduce Article 8ab(1) and (7) of Directive 
2011/16, inserted by Directive 2018/822, and having regard to the fact that that 
article cannot be interpreted differently from one Member State to another, it is 
necessary, before ruling on the substance, to refer the third question to the Court 
of Justice for a preliminary ruling. 
75 For the same reasons as those set out in paragraphs 59 to 61 above, before ruling 
on the substance of the interference with the right to respect for private life, the 
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third question is also referred to the Court of Justice in the light of the right to 
respect for private life.  
4. With regard to the obligation for the lawyer-intermediary bound by legal 
professional privilege to inform the other intermediaries 
76 That ground for complaint is put forward by some of the applicants (see 
paragraph 29 above) in terms identical to those used in the earlier action which 
gave rise to the judgment of the Cour constitutionnelle of 17 December 2020 
referring the following question to the Court of Justice for a preliminary ruling 
(registered at the Court of Justice under case number C-694/20, Orde van Vlaamse 
Balies and Others): 
‘Does Article 1(2) of [Directive 2018/822] infringe the right to a fair trial as 
guaranteed by Article 47 of the Charter of Fundamental Rights of the European 
Union and the right to respect for private life as guaranteed by Article 7 of the 
Charter of Fundamental Rights of the European Union, in that the new 
Article 8ab(5) which it inserted in [Directive 2011/16/EU] provides that, where a 
Member State takes the necessary measures to give intermediaries the right to 
waiver from filing information on a reportable cross-border arrangement where 
the reporting obligation would breach legal professional privilege under the 
national law of that Member State, that Member State is obliged to require the 
intermediaries to notify, without delay, any other intermediary or, if there is no 
such intermediary, the relevant taxpayer, of their reporting obligations, in so far as 
the effect of that obligation is to oblige a lawyer acting as an intermediary to share 
with another intermediary, not being his client, information which he obtains in 
the course of the essential activities of his profession, namely, representing or 
defending clients in legal proceedings and giving legal advice, even in the absence 
of pending legal proceedings?’  
77 The Cour constitutionnelle stays the proceedings in that regard pending a response 
from the Court of Justice to the question referred to it for a preliminary ruling in 
Case C-694/20. 
5. Restriction of legal professional privilege of intermediaries other than lawyers  
78 Some of the applicants complain, inter alia, that the contested provisions establish, 
without reasonable justification, a difference in treatment between intermediaries 
on the basis of whether they cooperate with other intermediaries or not. They 
submit that in the presence of several intermediaries, an intermediary who alleges 
legal professional privilege must inform the other intermediaries and must 
therefore breach legal professional privilege. 
79 The Cour constitutionnelle makes the connection with Case C-694/20, Orde van 
Vlamse Balies and Others, referred to above, and considers that the fourth 
question – similar to the question referred in Case C-694/20 but which concerns 
not only lawyers, but all intermediaries who are bound by legal professional 
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privilege and which relates only to the right to respect for private life – should be 
referred to the Court of Justice for a preliminary ruling. 
6. Is the interference in private life reasonably justified and proportionate to 
the objectives pursued? 
80 It is apparent from recitals 4 and 10 of Directive 2018/882 that the reporting 
obligation in respect of cross-border arrangements seeks to combat tax avoidance 
and evasion and to ensure the proper functioning of the internal market. 
81 The fight against tax avoidance and evasion, and the proper functioning of the 
internal market are themselves legitimate objectives. 
82 The reporting obligation is intended to ensure the competent authorities gain a 
better understanding of the arrangements in question and to enable those 
authorities ‘to react promptly against harmful tax practices and to close loopholes 
by enacting legislation or by undertaking adequate risk assessments and carrying 
out tax audits’ (recital 2 of Directive 2018/822).  
83 It is apparent from the travaux préparatoires for Directive 2018/822 that the 
ultimate objective is to caution against the design and implementation of 
reportable cross-border arrangements: 
84 ‘… if tax authorities receive information about potentially aggressive tax planning 
arrangements before these are implemented, they should be able to track the 
arrangements and respond to the tax risks that these pose by taking appropriate 
measures to curb them. For this purpose, information should ideally be obtained in 
advance, i.e. before an arrangement is implemented and/or used. This would 
enable the authorities to timely assess the risk of these arrangements and if 
necessary, react to close down loopholes and prevent a loss of tax revenue. The 
ultimate objective is to design a mechanism that will have a deterrent effect; that 
is, a mechanism that will dissuade intermediaries from designing and marketing 
such arrangements’ (COM (2017) 335 final, p. 3). 
‘The requirement to report under a mandatory disclosure regime will increase the 
pressure on intermediaries to refrain from designing, marketing and implementing 
aggressive tax planning arrangements. Similarly, taxpayers will be less inclined to 
create or use such schemes if they know the schemes would have to be reported 
under a mandatory disclosure regime’ (COM (2017) 335 final, p. 11). 
85 It is apparent from the definition of ‘reportable cross-border arrangement’ that 
three or four conditions must be fulfilled for the reporting obligation to apply: (1) 
it must be an ‘arrangement’; (2) which must be ‘cross-border’ in nature’; (3) 
which must include at least one ‘hallmark’; and (4) which, if required in the light 
of the hallmark in question, must satisfy the ‘main benefit test’. 
86 Thus, unlike what is provided for in Article 6 of Council Directive (EU) 
2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that 
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directly affect the functioning of the internal market, it is not, in the present case, 
necessary for the arrangement to be ‘non-genuine’. 
87 Moreover, and again unlike what is provided for in Article 6 of Directive 
2016/1164, it is not, in the present case, necessary for the main purpose or one of 
the main purposes of the arrangement to be obtaining a tax advantage, since the 
main benefit test applies only in the presence of certain hallmarks. In addition, 
where the main benefit test applies, it is not required – unlike what is provided for 
in Article 6 of Directive 2016/1164 – that the tax advantage defeats the object or 
purpose of the applicable tax law. 
88 Lastly, in accordance with Article 1(1), Directive 2011/16 concerns the exchange 
of ‘information that is foreseeably relevant to the administration and enforcement 
of the domestic laws of the Member States concerning taxes’ covered by the 
directive. It is apparent from the case-law of the Court of Justice that the 
expression ‘foreseeably relevant’ ‘must be interpreted in the light of the general 
principle of EU law consisting in the protection of natural or legal persons against 
arbitrary or disproportionate intervention by the public authorities in the sphere of 
their private activities’ (judgment of 6 October 2020, État luxembourgeois (Right 
to bring an action against a request for information in tax matters), C-245/19 and 
C-246/19, EU:C:2020:795, paragraph 111). In the present case, the requirement 
for three or four conditions to be met for the reporting obligation to be applicable, 
creates an irrebuttable presumption that the information to be communicated is 
‘foreseeably relevant’. 
89 It follows from the foregoing that the scope of the reporting obligation in respect 
of cross-border arrangements is broad. The reporting obligation may concern 
arrangements that are lawful, genuine, non-abusive and the main advantage of 
which is not fiscal. 
90 The question therefore arises as to whether, having particular regard to the broad 
scope of the reporting obligation and the information to be communicated, the 
reporting obligation in respect of cross-order arrangements is reasonably justified 
and proportionate in the light of the objectives pursued. 
91 Furthermore, the question also arises as to whether the reporting obligation is 
relevant in the light of the objective to ensure the proper functioning of the 
internal market since, in particular, the condition according to which the 
arrangement must be ‘cross-border’ in nature could be such as to hinder the 
exercise of the fundamental freedoms guaranteed under EU law. 
92 Since the reporting obligation has its origin in Directive 2018/822, it is necessary, 
before ruling on the substance, to refer the fifth question to the Court of Justice for 
a preliminary ruling.  
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6. The questions referred for a preliminary ruling: 
93 The Cour constitutionnelle  
– stays the proceedings pending the response of the Court of Justice of the 
European Union to the question referred for a preliminary ruling by judgment 
No 167/2020 of 17 December 2020 (registered at the Court of the Justice of the 
European Union under case number C-694/20); 
– refers the following questions to the Court of Justice of the European Union for 
a preliminary ruling: 
1. Does Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 
2011/16/EU as regards mandatory automatic exchange of information in the field 
of taxation in relation to reportable cross-border arrangements infringe 
Article 6(3) of the Treaty of the European Union and Articles 20 and 21 of the 
Charter of Fundamental Rights of the European Union and, more specifically, the 
principles of equality and non-discrimination as guaranteed by those provisions, in 
that Directive (EU) 2018/822 does not limit the reporting obligation in respect of 
cross-border arrangements to corporation tax, but makes it applicable to all taxes 
falling within the scope of Council Directive 2011/16/EU of 15 February 2011 on 
administrative cooperation in the field of taxation and repealing Directive 
77/799/EEC, which include under Belgian law not only corporation tax, but also 
direct taxes other than corporation tax and indirect taxes, such as registration fees? 
2. Does Directive (EU) 2018/822 infringe the principle of legality in criminal 
matters as guaranteed by Article 49(1) of the Charter of Fundamental Rights of 
the European Union and by Article 7(1) of the European Convention on Human 
Rights, the general principle of legal certainty and the right to respect for private 
life as guaranteed by Article 7 of the Charter of Fundamental Rights of the 
European Union and by Article 8 of the European Convention on Human Rights, 
in that the concepts of ‘arrangement’ (and therefore the concepts of ‘cross-border 
arrangement’, ‘marketable arrangement’ and ‘bespoke arrangement’), 
‘intermediary’, ‘participant’, ‘associated enterprise’, the terms ‘cross-border’, the 
different ‘hallmarks’ and the ‘main benefit test’ that Directive (EU) 2018/822 uses 
to determine the scope of the reporting obligation in respect of cross-border 
arrangements, are not sufficiently clear and precise?  
3. Does Directive (EU) 2018/822, in particular in so far as it inserts 
Article 8ab(1) and (7) into Directive 2011/16/EU, infringe the principle of legality 
in criminal matters as guaranteed by Article 49(1) of the Charter of Fundamental 
Rights of the European Union and by Article 7(1) of the European Convention on 
Human Rights, and infringe the right to respect for private life as guaranteed by 
Article 7 of the Charter of Fundamental Rights of the European Union and by 
Article 8 of the European Convention on Human Rights, in that the starting point 
of the 30-day period during which the intermediary or relevant taxpayer must 
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fulfil its reporting obligation in respect of a cross-border arrangement is not fixed 
in a sufficiently clear and precise manner? 
4. Does Article 1(2) of Directive (EU) 2018/822 infringe the right to respect 
for private life as guaranteed by Article 7 of the Charter of Fundamental Rights of 
the European Union and by Article 8 of the European Convention on Human 
Rights, in that the new Article 8ab(5) which it inserted in Directive 2011/16/EU, 
provides that, where a Member State takes the necessary measures to give 
intermediaries the right to a waiver from filing information on a reportable cross-
border arrangement where the reporting obligation would breach legal 
professional privilege under the national law of that Member State, that Member 
State is obliged to require the intermediaries to notify, without delay, any other 
intermediary or, if there is no such intermediary, the relevant taxpayer, of their 
reporting obligations, in so far as the effect of that obligation is to oblige an 
intermediary bound by legal professional privilege subject to criminal sanctions 
under the national law of that Member State to share with another intermediary, 
not being his client, information which he obtains in the course of the essential 
activities of his profession? 
5. Does Directive (EU) 2018/822 infringe the right to respect for private life as 
guaranteed by Article 7 of the Charter of Fundamental Rights of the European 
Union and by Article 8 of the European Convention on Human Rights, in that the 
reporting obligation in respect of cross-border arrangements interferes with the 
right to respect for the private life of intermediaries and relevant taxpayers which 
is not reasonably justified or proportionate in the light of the objectives pursued 
and which is not relevant to the objective of ensuring the proper functioning of the 
internal market?