Opinion of the Advocate General — ECLI:EU:C:2022:259
Date: 2022-04-05
Language of the case: Dutch
Subject matter: Taxation;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-694/20 – 1 
Case C-694/20 
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:  
21 December 2020 
Referring court: 
Grondwettelijk Hof (Belgium) 
Date of the decision to refer: 
17 December 2020 
Applicants: 
Orde van Vlaamse Balies 
IG 
Belgian Association of Tax Lawyers 
CD 
JU 
Defendant: 
Vlaamse Regering 
  
Subject of the action in the main proceedings  
The action in the main proceedings concerns claims for the suspension and 
annulment, in whole or in part, of the Flemish decreet van 26 juni 2020 tot 
wijziging van het decreet van 21 juni 2013 betreffende de administratieve 
samenwerking op het gebied van de belastingen, wat betreft de verplichte 
automatische uitwisseling van inlichtingen op belastinggebied met betrekking tot 
meldingsplichtige grensoverschrijdende constructies (Decree of 26 June 2020 
amending the Decree of 21 June 2013 on administrative cooperation in the field of 
taxation as regards the mandatory automatic exchange of information in the field 
of taxation in relation to reportable cross-border arrangements; ‘the Decree of 
26 June 2020’). Those claims were brought by the Orde van Vlaamse Balies 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-694/20 
 
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(Flemish Bar Council), the de facto association, ‘Belgian Association of Tax 
Lawyers’ and others. 
Subject and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling concerns the compatibility of Article 1(2) of 
Directive (EU) 2018/822 with Article 7 (right to respect for private life) and 
Article 47 (right to a fair trial) of the Charter of Fundamental Rights of the 
European Union, in so far as it requires a lawyer-intermediary who wishes to 
invoke professional secrecy, to notify the other intermediaries involved of their 
reporting obligations.  
The request is made pursuant to Article 267 TFEU. 
Question referred for a preliminary ruling 
Does Article 1(2) of 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 
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 Council Directive 
2011/16/EU of 15 February 2011 on administrative cooperation in the field of 
taxation and repealing Directive 77/799/EEC, 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 the 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? 
Provisions of European Union law cited 
Charter of Fundamental Rights of the European Union: Articles 7, 8, 20, 21, 47, 
48, 49 and 51 
Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 
2011/16/EU as regards mandatory automatic exchange of information in the field 
ORDE VAN VLAAMSE BALIES AND OTHERS 
 
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of taxation in relation to reportable cross-border arrangements: Article 1, 
paragraph 2 
European Convention on Human Rights: Articles 6 and 8 
Provisions of national law cited 
Grondwet (Constitution): Articles 22 and 29 
Decreet van 21 juni 2013 betreffende de administratieve samenwerking op het 
gebied van belastingen (Decree of 21 June 2013 on administrative cooperation in 
the field of taxation): Articles 11/6 and 11/7 
Decreet van 26 juni 2020 tot wijziging van het decreet van 21 juni 2013 
betreffende de administratieve samenwerking op het gebied van de belastingen, 
wat betreft de verplichte automatische uitwisseling van inlichtingen op 
belastinggebied met betrekking tot meldingsplichtige grensoverschrijdende 
constructies (Decree of 26 June 2020 amending the Decree of 21 June 2013 on 
administrative cooperation in the field of taxation as regards mandatory automatic 
exchange of information in the field of taxation in relation to reportable cross-
border arrangements): Articles 14 and 15 
Brief summary of the facts and the procedure in the main proceedings 
1 By applications of 31 August 2020 and 1 October 2020, the applicants lodged 
claims with the Constitutional Court for the suspension and annulment, in whole 
or in part, of the above-mentioned Decree of 26 June 2020.  
Main submissions of the parties to the main proceedings 
2 The applicants submit that Article 14 of the Decree of 26 June 2020 infringes 
Articles 22 and 29 of the Constitution, whether or not read in conjunction with 
Articles 6 and 8 of the European Convention on Human Rights and with 
Articles 7, 8, 20, 21, 47, 48, 49 and 51 of the Charter of Fundamental Rights of 
the European Union. They contend that, pursuant to Article 11/6, § 1(1)(1º) of the 
Decree of 21 June 2013, as inserted by Article 14 of the Decree of 26 June 2020, 
the lawyer-intermediary who wishes to invoke professional secrecy is required to 
inform the other intermediaries 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 professional secrecy. Moreover, 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.  
3 The Flemish Government submits that there is no problem where the other 
intermediary referred to in the decree is the client of the lawyer-intermediary or 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-694/20 
 
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where the client has put him in touch with the lawyer. Where that is not the case 
and the lawyer is not working with the other intermediary, he would also be 
unaware of the latter’s existence and the reporting obligation is shifted to the 
taxpayer. 
Brief summary of the reasons for the referral 
4 The Decree of 26 June 2020 transposes Directive (EU) 2018/822 into national 
law. It is apparent from recital 2 of that directive that the directive forms part of 
the framework of the European Union’s efforts to facilitate tax transparency at EU 
level. In practice, the Member States must designate a competent authority to 
assume responsibility for the exchange between Member States of the necessary 
information about aggressive tax arrangements. In order to ensure that such 
information is available to the competent authorities, the directive introduces a 
reporting obligation with respect to potentially aggressive cross-border tax 
arrangements. 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. In order to transpose that reporting obligation in the Flemish Region, the 
Decree of 26 June 2020 makes a number of amendments to the Decree of 21 June 
2013.  
5 Article 11/6 of the Decree of 21 June 2013, as inserted by Article 14 of the Decree 
of 26 June 2020, determines the way in which the reporting obligation relates to 
the professional secrecy by which certain intermediaries are bound. By virtue of 
that provision, an intermediary who is bound by professional secrecy is exempt 
from the reporting obligation only if he informs the other intermediary or 
intermediaries involved or, if there is no such intermediary, the taxpayer(s), in 
writing and giving reasons, of the fact that he is unable to comply with the 
reporting obligation. In particular, Article 11/6 provides as follows:  
‘§ 1. When an intermediary is bound by professional secrecy, he is required: 
1º to notify any other intermediary or intermediaries in writing, giving reasons, 
that he is unable to comply with the reporting obligation, as a result of which that 
reporting obligation automatically rests with the other intermediary or 
intermediaries;  
2° in the absence of any other intermediary, to notify the relevant taxpayer or 
taxpayers of their reporting obligation, in writing, giving reasons. 
[…]” 
6 A lawyer’s professional secrecy is an essential component of the right to respect 
for private life and the right to a fair trial. According to the case-law of the 
Grondwettelijk Hof (Constitutional Court), the information that lawyers are 
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required to pass on to the competent authorities about their clients is protected by 
professional secrecy if such information relates to activities covered by the 
lawyer’s specific task of legal defence or representation and the provision of legal 
advice. The mere fact of having had recourse to a lawyer results in protection 
under professional secrecy. The same applies a fortiori to the identity of a 
lawyer’s clients. The information that is protected by professional secrecy in 
respect of the authorities is also protected in respect of other actors, such as, for 
example, any other intermediaries who may be involved. The rule of professional 
secrecy should only be waived if this can be justified by an overriding reason 
relating to the public interest and if the waiver of secrecy is strictly proportionate. 
According to the travaux préparatoires leading to the adoption of the Decree of 
26 June 2020, an intermediary’s obligation to notify the other intermediaries 
involved, giving reasons, that he is invoking professional secrecy and will 
therefore be unable to comply with the reporting obligation, would be necessary in 
order to meet the requirements of that directive, and to ensure that invoking 
professional secrecy does not prevent the necessary reporting from taking place.  
7 Where a lawyer can be regarded as an intermediary within the meaning of the 
Decree of 21 June 2013, his client will in principle be either the taxpayer or 
another intermediary. If the lawyer’s client is another intermediary, professional 
secrecy does not prevent the lawyer from reminding his client of his reporting 
obligation. If the lawyer’s client is the taxpayer and other intermediaries are 
involved in the reportable arrangement, it will be apparent from Article 11/7 of the 
Decree of 21 June 2013, as inserted by Article 15 of the Decree of 26 June 2020, 
that in any case, the reporting obligation is also incumbent on the other 
intermediaries involved, unless they can provide written proof of the fact that 
another intermediary has already complied with the reporting obligation. If the 
lawyer’s professional secrecy prevents him from notifying another intermediary of 
the fact that he will not be complying with the reporting obligation, he will a 
fortiori not be able to provide that other intermediary with written proof that he 
has complied with the reporting obligation. In that case, every other intermediary 
involved remains automatically bound by the reporting obligation. Consequently, 
the question arises whether the obligation incumbent on the intermediary under 
Article 11/6, § 1, first paragraph, 1 °, of the Decree of 21 June 2013, is justified by 
an overriding reason relating to the public interest. 
8 According to Article 2 of the Decree of 26 June 2020, the objective of that decree 
is to transpose Directive (EU) 2018/822 into national law. Article 1(2) of that 
directive inserts Article 8ab(5) into Directive 2011/16/EU, and reads as follows: 
‘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.  
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Intermediaries may only be entitled to a waiver under the first subparagraph to the 
extent that they operate within the limits of the relevant national laws that define 
their professions.’ 
9 It follows from the foregoing that the obligation incumbent on the intermediary 
who invokes legal professional privilege to notify other intermediaries or the 
taxpayer of their reporting obligations, was laid down by the regional legislature 
pursuant to Directive (EU) 2018/822. According to the Constitutional Court, it 
must take this element into account before evaluating the compatibility of the 
decree with the Constitution. However, the Constitutional Court is not competent 
to rule on the compatibility of the aforementioned Directive with Articles 7 and 47 
of the Charter of Fundamental Rights of the European Union. Since the actions for 
suspension and annulment of the Decree of 26 June 2020, which transposes 
Directive (EU) 2018/822, call into question the latter’s validity, the validity of the 
aforementioned Directive must first be determined. Consequently, in accordance 
with Article 267 TFEU, the question formulated above should be referred to the 
Court of Justice of the European Union for a preliminary ruling.