Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 5 March 2026 (1)
Case C‑158/25
QJ
v
Administration de l’enregistrement, des domaines et de la TVA,
État du Grand-duché de Luxembourg
(Request for a preliminary ruling from the Cour de cassation (Luxembourg))
( Preliminary ruling – Charter of Fundamental Rights of the European Union – Right to an effective remedy – System of joint and several liability of company directors for payment of the valued added tax (VAT) owed by the company – Right of the director to challenge the ex officio VAT assessment )
I.      Introduction
1.        In the present case, the Court is asked to rule on the requirements relating to the right to an effective remedy, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in the context of national legislation which provides for the joint and several liability of a director for the company’s value added tax (VAT) debt. The Court has already examined the compatibility with EU law of various aspects of national systems of joint and several liability of a third party for the tax debt of a legal person, in particular with regard to the rights of the defence and the principle of proportionality. (2)
2.        In the present case, the question is whether the national system of joint and several liability of company directors for the company’s tax debts falls within the scope of EU law, even if it is not classified as a penalty. If so, it will be necessary to consider the requirement of effective judicial protection, enshrined in Article 47 of the Charter, in the context of a dispute concerning the joint and several liability of a director. Specifically, the question arises as to whether, where an action is brought against him or her in his or her capacity as joint and several debtor, the director must be granted the right to challenge, as an incidental question, a tax decision which has been adopted in respect of the taxable company and has become final. This case will therefore make it possible to provide clarification concerning the balance between, on the one hand, the effectiveness of VAT collection by the public exchequer and the finality of administrative decisions and, on the other hand, the right to an effective remedy of the joint and several debtor of a VAT debt.
II.    Legal framework
A.      European Union law
3.        The first paragraph of Article 273 of Council Directive 2006/112 of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive) is worded as follows:
‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’
B.      Luxembourg law
4.        Article 2bis(a) of the loi modifiée du 12 février 1979 concernant la taxe sur la valeur ajoutée (amended Law of 12 February 1979 on value added tax) (Mémorial A, 1979, p. 185) (‘the LTVA’), defines, for the purposes of that law, the ‘administration’ as ‘l’Administration de l’enregistrement, des domaines et de la TVA’ (the Registration, Land and VAT Authority; ‘the AEDT’).
5.        Article 67-1 of the LTVA, inserted by the loi du 23 décembre 2016 portant mise en œuvre de la réforme fiscale 2017 et portant modification, entre autres, de la [LTVA] (Law of 23 December 2016 implementing the 2017 tax reform and amending, inter alia, the [LTVA]) (Memorial A, 2016, p. 5137), provides:
‘Managing directors, managers and any de jure or de facto directors responsible for the day-to-day management of the persons liable to pay value added tax are required to ensure that the legal obligations laid down by this law are complied with, and in particular that value added tax due is paid from the financial resources which they are responsible for managing.’
6.        Pursuant to Article 67-2 of the LTVA:
‘Managing directors, managers and any de jure or de facto directors responsible for day-to-day management are personally and jointly and severally liable for the payment of value added tax due where, as a result of their failure to discharge the legal obligations incumbent on them, the legal obligations imposed by this law on the persons liable to pay value added tax that they manage have not been complied with or the VAT due has not been paid from the financial resources which they are responsible for managing.’
7.        Article 67-3 of the LTVA provides:
‘In the event of failure to discharge the legal obligations incumbent on managing directors, managers and any de jure or de facto directors responsible for day-to-day management, the Director of the Registration and Land Authority or his or her representative may issue a guarantee call decision against such persons. That decision confers on the administration the right to recover from those persons the value added tax owed by the persons liable for payment of value added tax. …
Guarantee call decisions issued by the director of the administration or his or her delegate may be challenged by way of complaint.
…
The director’s decision is subject to appeal. …’
8.        Article 74 of the LTVA provides, in paragraphs 1 and 2 thereof:
‘1.      Where, in relation to transactions carried out by a taxable person, the administration has serious, specific and consistent grounds for doubting the accuracy of the returns filed, it is authorised to carry out an ex officio assessment if such doubts cannot be dispelled by explanations, information or evidence provided by the taxable person.
2.      Where, for any reason whatsoever, a taxable person has not submitted, within the prescribed time limits and with the required information, the tax returns referred to in Article 64 or has not complied, in whole or in part, with the obligations imposed by or in implementation of this Law concerning the keeping, issuing, retention or communication of records or documents, the administration shall also be authorised to assess of its own motion the taxes owed by the taxable person on the basis of the presumed amount of the transactions carried out during the month or months to which the irregularity relates.’
9.        Article 76 of the LTVA provides in paragraphs 2 and 3 thereof:
‘…
2.      The ex officio notice of correction or assessment in accordance with Articles 73, 74 and 75 shall be issued to the taxable person, who shall be deemed to have received it on the date of notification set out therein. …
3.      The ex officio notices of correction or assessment referred to in paragraph 2 may be challenged by way of a complaint. …
An action may be brought against the director’s decision. The action shall be brought by application lodged before the Tribunal d’arrondissement de Luxembourg [(District Court, Luxembourg)], sitting as a civil court. …’
III. The facts giving rise to the dispute, the main proceedings and the questions referred for a preliminary ruling
10.      On 17 March 2018, the AEDT issued two ex officio tax assessments against the Luxembourg company VN (‘the taxable company’), one for 2014 and the other for 2015 and 2016 (‘the ex officio tax assessments’). QJ was the manager of that company from 22 April 2013 to 15 February 2019, the date of his resignation. The appeal lodged against those assessments by the taxable company was declared inadmissible for being out of time.
11.      On 16 May 2019, as the taxable company had failed to pay the amounts due, the AEDT issued, in accordance with Article 67-1 of the LTVA, a bulletin d’appel en garantie (‘guarantee call’) to QJ, requiring him, in his capacity as manager responsible for the day-to-day management of VN between 2013 and 2019, to pay the amounts owed for the years 2014 to 2016 (‘the guarantee call’).
12.      QJ’s objection to the guarantee call was rejected by the Director of the AEDT, leading QJ to bring an action before the Tribunal d’arrondissement de Luxembourg (District Court, Luxembourg) seeking to have that guarantee call decision amended or, failing that, annulled. That court dismissed the action and upheld the decision of the Director of the AEDT.
13.      QJ lodged an appeal with the Cour d’appel (Court of Appeal, Luxembourg). Before that court, he argued that, as a person called upon to guarantee payment of the ex officio tax assessments issued against the company of which he had been the director, he was entitled to file a third-party objection which was admissible because those tax assessments had not been notified to him personally. He also argued that denying him the opportunity to bring an action in his own name was incompatible with Article 47 of the Charter.
14.      The Cour d’appel (Court of Appeal) rejected QJ’s arguments based on Article 47 of the Charter. It held that Article 67-1 et seq. of the LTVA, which provide for the guarantee call procedure, are not provisions derived from EU law. Furthermore, as a third party to the ex officio taxation procedure, QJ was not entitled to rely on any infringements of fundamental rights committed in the context of that procedure against VN.
15.      As regards QJ’s criticisms of the ex officio tax assessments, the Cour d’appel (Court of Appeal) held that he had no personal action against those assessments. In essence, it ruled that neither Article 76-3 of the LTVA, which sets out the procedure for appealing against ex officio tax assessments, nor Articles 67-1 to 67-4 of the LTVA, nor any other legislative text provides for the possibility of a person who is the subject of a guarantee call to bring a personal action against the ex officio tax assessments issued against the taxable person. In the absence of an admissible and well-founded objection, the ex officio tax assessments became final, so that neither the taxable company nor, a fortiori, the manager against whom the guarantee call is issued could challenge them.
16.      In the present case, since the person against whom the guarantee call is issued was the same person who represented the legal entity in the procedure for determining turnover, the Cour d’appel (Court of Appeal) ruled that he had, in that capacity, the possibility of participating in the procedure for determining taxable turnover and of challenging the ex officio assessment. Moreover, since QJ was not the taxable person for VAT purposes, the AEDT was not required to notify him in his personal capacity of the ex officio tax assessments or to involve him in his personal capacity in the ex officio taxation procedure.
17.      QJ appealed on a point of law to the referring court. In the first part of his first ground of appeal, he complains that the judgment under appeal infringed his right to an effective remedy guaranteed by Article 47 of the Charter. He argues that the Cour d’appel (Court of Appeal) wrongly rejected the ground of appeal based on that provision, given that the EU judicature considered that the national provisions governing the application of common rules, including the common system of VAT, form part of the implementation of EU law. In his view, by rejecting that ground of appeal, the judgment under appeal infringed Article 47 of the Charter, as interpreted in particular in the judgment of 9 September 2021, Adler Real Estate and Others (C‑546/18, ‘the judgment in
Adler Real Estate’, EU:C:2021:711). It follows from that judgment that, in an action against a guarantee call, the applicant must be granted the right to challenge the legality of decisions taken against the legal person of which he or she was a member of the board of management, including the disputed ex officio tax assessments.
18.      The referring court recalls that, in the judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, ‘the judgment in
Åkerberg Fransson’, EU:C:2013:105), and in a series of subsequent judgments, the Court held that various aspects of national procedural law applicable in VAT matters fall within the scope of the implementation of EU law, which entails the applicability of the Charter, in particular Article 47 thereof.
19.      According to the referring court, that case-law may apply to a system of joint and several liability whereby the directors of a company are held liable, on account of a failure to discharge their obligations, for payment of the VAT owed by the company which they run.
20.      It states that, if the answer to the question of the applicability of Article 47 of the Charter is in the affirmative, the question then arises as to whether it is possible for those directors, in the context of an action available to them under national law against the administrative act establishing their joint and several liability, to challenge incidentally the ex officio tax assessment previously issued to the company and to which that company did not file an objection in good time.
21.      In that regard, it asks whether, and if so under what conditions, the solution adopted in the judgment in
Adler Real Estate can be applied in disputes involving guarantee calls in respect of company directors for decisions which, unlike the one concerned in that judgment, are not of a criminal nature.
22.      More specifically, the question is whether Article 47 of the Charter precludes a director who is the subject of an administrative act establishing his or her joint and several liability for the payment of VAT from challenging incidentally the ex officio tax assessment issued to the company, from relying on possible infringements of fundamental rights in the context of the ex officio tax assessment procedure conducted in respect of the company, from requesting that the ex officio tax assessment be communicated to him or her and from requiring to be involved in his or her personal capacity in the ex officio tax procedure.
23.      In those circumstances, the Cour de cassation (Court of Cassation, Luxembourg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does the [Charter], and in particular Article 47 thereof, apply, in the light of the criteria in Article 51(1) of the Charter, to the regulation, by national legislation, of the joint and several liability of company directors, on account of the failure to discharge their obligations, for payment of the VAT owed by the company which they run?
(2)      If the answer to the first question is in the affirmative, is Article 47 of the Charter to be interpreted as conferring on directors who are the subject of a guarantee call the ability to challenge, indirectly, in the context of an action available to them under national law against the administrative act establishing their joint and several liability, the ex officio VAT assessment previously issued to the company and to which the company did not file an objection in good time?
(3)      If the answer to the second question is in the affirmative, is Article 47 of the Charter to be interpreted as limiting the grounds on which directors may rely in the context of an indirect challenge to the ex officio tax assessment issued to the taxable company or as encompassing all grounds, including those relating to the determination of the VAT liability, such as the findings of fact which led to the ex officio administrative tax decision issued against the taxable company, and purely personal grounds, such as possible infringements of fundamental rights committed in respect of those directors in the context of the ex officio tax procedure?’
24.      QJ, the Luxembourg, Spanish and Polish Governments and the European Commission submitted written observations. At the hearing on 4 December 2025, those parties presented oral argument and their answers to the written and oral questions put by the Court.
IV.    Analysis
A.      The first question referred
25.      As is apparent from the order for reference, the dispute concerns the action brought by QJ, the appellant in the main proceedings and a manager of the taxable company, against the guarantee call. Proceedings have been brought against QJ as a debtor who is personally and jointly and severally liable for the VAT debt not paid by the taxable company. The joint and several liability of company directors is provided for in Article 67-2 of the LTVA. (3) It is based on the ‘failure to discharge’ their legal obligations, where, as a result of that failure, the legal obligations imposed on VAT taxable persons have not been complied with or the VAT owed has not been paid from the financial resources which they are responsible for managing. (4)
26.      In the present case, the lower courts found against QJ on the ground, in essence, of his failure to comply with VAT reporting obligations and the obligation to pay VAT owed to the public exchequer. (5) The amount claimed in the guarantee call corresponds to that owed by the principal debtor, namely the taxable company. The amount of the principal debt is set out in the ex officio tax assessments issued to the taxable company in accordance with Article 74 of the LTVA.
27.      In the context of QJ’s appeal against the guarantee call, the Cour d’appel (Court of Appeal) ruled that, since the ex officio tax assessments had become final, the amounts set out therein could no longer be challenged.
28.      The Cour d’appel (Court of Appeal) rejected QJ’s argument that Article 47 of the Charter had been infringed, ruling that it was not applicable to the national procedural mechanism of the guarantee call.
29.      In the light of that procedural context, it is necessary to consider that, by its first question, the referring court is asking, in essence, whether Article 47 of the Charter must be interpreted as applying in the context of an action brought by a person seeking to challenge the legality of an administrative act holding him or her jointly and severally liable for the payment of VAT not paid by the taxable company of which he or she was the manager, pursuant to national legislation which provides that company directors are jointly and severally liable for the payment of VAT not paid, on account of a failure to discharge their obligations.
1.      The applicability of the Charter
30.      It is to be recalled that it follows from Article 51(1) of the Charter that its provisions are addressed to the Member States only when they are implementing EU law.
31.      The fundamental rights guaranteed in the legal order of the European Union are thus applicable in all situations governed by EU law, but not outside such situations. (6)
32.      In accordance with the first paragraph of Article 273 of the VAT Directive, Member States may impose obligations, other than those provided for by that directive, if they consider such obligations necessary to ensure the correct collection of VAT and to prevent evasion. (7)
33.      The Court has previously had occasion to clarify that, outside the limits laid down therein, Article 273 of the VAT Directive does not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of ensuring collection of all the VAT due on their territory and for combating fraud. (8)
34.      In that regard, Article 325(1) TFEU requires the Member States to counter fraud and any other illegal activities affecting the financial interests of the European Union through effective and deterrent measures. (9)
35.      Pursuant to Article 2(1)(b) of Council Decision 2014/335/EU, Euratom of 26 May 2014 on the system of own resources of the European Union (OJ 2014 L 168, p. 105), the European Union’s own resources include, inter alia, revenue from the application of a uniform rate to the harmonised VAT assessment bases determined in accordance with EU rules. Accordingly, there is a direct link between the collection of VAT revenue in compliance with the EU law applicable and the availability to the EU budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second. (10)
36.      In order to ensure the protection of the financial interests of the European Union, it is for the Member States, inter alia, to adopt the measures necessary to guarantee the effective and comprehensive collection of own resources, namely the revenue from the application of a uniform rate to the harmonised VAT assessment bases. (11)
37.      In accordance with the settled case-law of the Court, it follows from Articles 2 and 273 of the VAT Directive, read in conjunction with Article 4(3) TEU and Article 325(1) TFEU, that Member States are required to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory and for preventing fraud. (12)
38.      The fact that Member States have a margin of discretion in determining measures aimed at the correct collection of VAT is not such as to justify a different conclusion. It is apparent from the Court’s case-law that a Member State which makes use of a freedom to choose between various methods of implementation of an EU act or of a margin of discretion which is an integral part of the regime established by that act, must be regarded as implementing that law, within the meaning of Article 51(1) of the Charter. (13)
39.      As the Commission pointed out in its written observations, the Court has ruled on several occasions that systems of joint and several liability, relating to VAT debts which have not been paid by a taxable legal person within the mandatory time limits laid down by the VAT Directive and allowing their recovery from a director or member of a company’s management body, help to ensure the correct collection of VAT within the meaning of Article 273 of the VAT Directive and thus constitute implementation of EU law. (14)
40.      In the present case, a system of joint and several liability such as that at issue in the main proceedings contributes to the recovery of VAT amounts which have not been paid by a taxable legal person, (15) so that it contributes to compliance with the obligation, referred to in point 37 of this Opinion, incumbent on each Member State to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory, for the purposes of the first paragraph of Article 273 of the VAT Directive. (16)
41.      Such a system therefore constitutes an implementation of EU law for the purposes of Article 51(1) of the Charter.
42.      The Luxembourg Government nevertheless disputes the applicability of the Charter. It observes that, in the judgment in
Åkerberg Fransson, it was national tax penalties aimed at penalising conduct prejudicial to the financial interests of the European Union which were regarded as constituting implementation of EU law. (17)
43.      However, that government emphasises that, under Luxembourg law, tax penalties are provided for in Articles 77 to 80 of the LTVA, whereas Article 67-1 et seq. of that law, which relate to the joint and several liability of the offending director, provide not for a tax penalty within the meaning of that law, but for a specific case of civil liability. Under Luxembourg law, it is the fault of the company director which gives rise to the system of joint and several liability and not infringement of the substantive obligations arising from VAT legislation. Since the extent  of the director’s joint and several liability depends on the faults which he or she has committed, it cannot be considered that the system of joint and several liability can guarantee the Member State ‘collection of all the VAT due on its territory’, within the meaning of the judgment in
Åkerberg Fransson.
44.      I cannot subscribe to the Luxembourg Government’s view for the following reasons.
45.      It is apparent from the case-law referred to in point 37 of this Opinion that Member States are required to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory, for the purposes of the first paragraph of Article 273 of the VAT Directive. The imposition of tax penalties is not the only means by which Member States fulfil their obligation under that provision. Any measure aimed at recovering unpaid VAT ensures collection of all VAT and therefore implements the abovementioned obligation of Member States.
46.      Moreover, as I have stated above, (18) the Court has already held that certain systems of joint and several liability constitute implementation of EU law, in that they contribute to ensuring the collection of all VAT, without those systems necessarily being classified as penalties under the respective national law. As the Spanish Government stated in its oral arguments, the fact that the system of joint and several liability at issue in the main proceedings is not part of a system of penalties does not prevent it from being regarded as an implementation of EU law.
47.      The Luxembourg Government also argued that the guarantee call mechanism is a special civil liability regime which is not linked to the full collection of VAT.
48.      The impact of that assertion on the question whether the liability system constitutes an implementation of EU law depends on the answer to the question whether or not the damage suffered by the State is independent of the amount of unpaid VAT. When questioned on that point by the Court at the hearing, the Luxembourg Government stated that all or part of the unpaid VAT constitutes the damage suffered by the State and that there is no additional compensation on account of the manager’s wrongful conduct. That government also stated that, in the present case, the amount covered by the guarantee claim against the manager corresponds to the amount set out in the ex officio tax assessment issued to the company, which remains unpaid.
49.      As the Commission stated, in essence, in its oral arguments, in so far as the system of joint and several liability at issue does not provide for compensation for damage other than non-payment of the tax, it cannot be argued that that system is independent of the amount of unpaid VAT.
50.      I therefore take the view that the system of joint and several liability at issue constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter.
2.      The possibility of relying on Article 47 of the Charter
51.      The first question referred for a preliminary ruling concerns, more specifically, whether, in the context of his or her action against the guarantee call, the person against whom the guarantee call is issued may rely on Article 47 of the Charter.
52.      Under Article 47 of the Charter, everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Everyone is entitled, in particular, to a fair hearing.
53.      As is apparent from settled case-law of the Court, the right to an effective remedy may be invoked on the basis of Article 47 of the Charter alone, without there being a need for the content thereof to be made more specific by other provisions of EU law or by provisions of the domestic law of the Member States. (19)
54.      That being said, the recognition of that right, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking that right is relying on rights or freedoms guaranteed by EU law. (20)
55.      In that regard, it should be noted at the outset that it follows from the settled case-law of the Court that the protection of persons, both natural and legal, against arbitrary or disproportionate intervention by the public authorities in the sphere of those persons’ private activities constitutes a general principle of EU law. (21)
56.      That protection may be relied on by a natural person, such as the appellant in the main proceedings, as a right guaranteed by EU law for the purposes of the first paragraph of Article 47 of the Charter, in order to challenge before the courts an act adversely affecting him or her – namely the guarantee call – based on a national provision which, as is evident from point 50 of this Opinion, implements EU law within the meaning of Article 51(1) of the Charter. (22)
57.      It follows that, in the circumstances of the main proceedings, Article 47 of the Charter is applicable.
58.      In its written observations, the Luxembourg Government argues that it follows from paragraph 42 of the judgment in
Adjak (23) that Article 47 of the Charter is not relevant for assessing the rights of the defence in joint and several liability proceedings.
59.      In that regard, it should be noted that, in the case which gave rise to the judgment in
Adjak, the question referred to the Court concerned the rights of defence of a third party held liable for the tax debt of a legal person subject to VAT, both in the context of the tax proceedings brought against that taxable person and in the context of the joint and several liability proceedings brought against that third party. In paragraph 42 of that judgment, the Court observed that, having regard to the administrative nature of those proceedings, Article 47 of the Charter was not relevant.
60.      However, the present case concerns the right of a citizen to defend his case before a court in the context of his action against the guarantee call decision. Paragraph 42 of the judgment in
Adjak is therefore not applicable to the situation in the present case.
61.      In the light of the foregoing, the answer to the first question referred should be that Article 47 of the Charter must be interpreted as applying in the context of an action brought by a person seeking to challenge the legality of an administrative act holding him or her jointly and severally liable for the payment of VAT not paid by the taxable company of which he or she was the manager, pursuant to national legislation which provides that company directors are jointly and severally liable for the payment of VAT not paid, on account of a failure to discharge their obligations.
B.      The second and third questions referred
62.      If the answer to the first question referred for a preliminary ruling is in the affirmative, the referring court essentially asks, by its second question, whether Article 47 of the Charter must be interpreted as precluding national legislation or practice which does not allow a director who is the subject of a guarantee call to challenge incidentally, in the context of his or her action against the administrative act establishing his or her joint and several liability for the unpaid VAT debt of the taxable company, the ex officio tax assessment previously issued to that company which has become final. If that is the case, by its third question, the referring court asks, in essence, about the grounds on which such a director may rely in the context of an incidental challenge to the ex officio tax assessment.
63.      It should be recalled that the essence of the right to an effective remedy enshrined in Article 47 of the Charter includes, among other aspects, the right of defence, which consists in the possibility, for the person who holds that right, of accessing a court or tribunal with the power to ensure respect for the rights guaranteed to that person by EU law and, to that end, to consider all the issues of fact and of law that are relevant for resolving the case before it. (24)
64.      It follows from the case-law of the Court that the requirement to respect the essence of the right to an effective remedy means only that every person is recognised as having the right to challenge before the courts an act adversely affecting him or her which is such as to violate those rights and freedoms. More specifically, that requirement does not, as such, mean that the holder of that right to an effective remedy has a direct legal remedy the primary object of which is to call into question a given measure, provided that one or more legal remedies also exist, before the various competent national courts, enabling that rightholder to obtain, as an incidental question, judicial review of that measure in order to ensure respect for the rights and freedoms guaranteed to that rightholder by EU law, without having to be subject, to that end, to the risk of receiving a penalty in the event of non-compliance with the measure in question. (25)
65.      In the light of those considerations, it should be noted that, in this case, national regulations or practice limit the defence available to the person against whom the guarantee call is issued to the conditions for holding him or her liable under Article 67-3 of the LTVA, namely the existence of fault on the part of the company director, damage suffered and a causal link between the damage and the fault. The manager cannot challenge, as an incidental question, during the guarantee call proceedings against him or her, the amounts included in the ex officio tax assessment corresponding to the amounts claimed against him or her. A person who is the subject of a guarantee call as a joint and several debtor is thus deprived of the possibility of challenging the existence and amount of the debt for which he or she is held jointly and severally liable.
66.      The reason for that restriction on the defence upon which the person subject to the guarantee call may rely lies in the finality of the ex officio tax assessment issued to the taxable company.
67.      According to settled case-law of the Court, the principle of respect for the rights of the defence is not an unfettered prerogative but may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the measure in question and do not constitute, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights thus guaranteed. (26)
68.      The finality of an administrative decision, which is acquired upon expiry of the reasonable time limits for legal remedies or by exhaustion of those remedies, contributes to legal certainty, which is also a fundamental principle of EU law. (27) Since the finality of an administrative decision contributes to legal certainty, in principle, EU law does not require that administrative bodies be placed under an obligation to reopen an administrative decision which has become final in that way. (28)
69.      That being said, the finality of an administrative decision cannot justify an impairment of the very essence of the rights of the defence. (29)
70.      In the present case, the administrative decision which has become final, namely the ex officio tax assessment, has binding effect on the director of the taxable company, who is a third party, who was not the addressee of the decision in question and who has not been able to assert his rights in his personal capacity.
71.      In such circumstances, denying the director, who is sued jointly and severally, the right to challenge the factual and legal assessments contained in that decision is likely to impair the essence of his right to an effective remedy. (30)
72.      As the Polish Government stated in its written observations, in proceedings concerning the liability of the company director, the tax assessment addressed to that company constitutes only evidence of the factual circumstances and legal classifications established by the tax authorities in the proceedings against that company.
73.      In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on the findings contained in that tax assessment. (31) The referring court must be able to verify the findings that formed the basis of the act the legality of which is contested and that are decisive for the outcome of the dispute before it.
74.      The judgment in
Adler Real Estate supports that conclusion. In that judgment, the Court held that the rights of the defence are of a subjective nature, such that it is the concerned parties themselves that must be able effectively to exercise those rights, irrespective of the nature of the proceedings to which they are subject. (32) According to the Court, respect for the right to an effective remedy requires that, in proceedings for the imposition of an administrative penal sanction on a natural person, the administrative authority should disregard the binding effect attaching to assessments made in a decision which has found the alleged infringement to have been committed, and which has become final, without that person having had the opportunity to challenge those assessments in his or her personal capacity, in the exercise of his or her own rights of the defence. (33)
75.      The judgment in
Adler Real Estate concerned the rights of defence of directors in proceedings for the imposition of administrative penalties on them which were of a penal nature. However, the guidance which can be derived from that judgment is also relevant in civil proceedings concerning joint and several liability.
76.      The rights of the defence are subjective in nature, regardless of whether the proceedings are criminal or civil in nature. Furthermore, the finality of an administrative decision cannot justify an impairment of the very essence of the rights of the defence, even in civil proceedings. (34) The essence of the rights of defence of a company director in relation to an act for which he or she is personally liable requires that he or she be able to challenge incidentally, and in his or her personal capacity, the findings contained in the tax assessment notice issued against the taxable company in proceedings to which he or she was not a party. (35)
77.      The fact that, in his or her capacity as a director, the natural person concerned may have the possibility of bringing an action on behalf of the company against the tax assessment notice should not deprive that person of his or her right, in his or her capacity as a person against whom a guarantee call is issued, to object to the tax assessment notice and to challenge, in his or her personal capacity, the findings of fact and law set out therein. Although the same natural person is involved in both proceedings, he or she is not acting in the same capacity.
78.      The Luxembourg Government argued that the exclusion of the manager’s right to object to the ex officio
tax assessment is justified by the fact that a normally diligent director responsible for day-to-day management is expected to take all necessary steps to contest an ex officio tax assessment sent to the company which he or she manages. He or she is not unaware of the law and should therefore know that the company’s VAT liability is likely to result in his or her joint and several liability.
79.      I cannot endorse that argument. As stated above (36) and as the Commission pointed out, in essence, in its written observations, the person concerned by a decision adversely affecting him or her must be given the opportunity, in his or her personal capacity, effectively to make their views known on the elements on which the administration based its decision to hold him or her liable. The director against whom the guarantee call is issued is not to be confused with the taxable company, which is an entity separate from the persons representing it.
80.      The way in which the company is represented, as described in its statutes, must also be taken into account. Where there is a board of management, it cannot be assumed that a director alone can represent the company in court. As the Commission stated in its oral arguments, the director of a company is not always empowered to decide alone whether to contest a tax assessment notice.
81.      In the present case, it is apparent from the national file that the taxable company’s statutes provide that it is managed by a board of management composed of at least three managers, divided into category A managers and category B managers. The company is validly bound vis-à-vis third parties by the joint signature of a Category A manager and a Category B manager. As the Commission noted, in essence, at the hearing, in the event that the decision to bring an action requires a joint signature, it may be more difficult for a manager to have to ensure the defence of his or her own interests through the intermediary of the company. In any event, and irrespective of the scope of his or her power to represent the company, a natural person cannot be considered to be exercising his or her right of defence in an equivalent manner when acting on behalf of the company in proceedings brought against the latter and when acting in his or her own name in relation to an act which adversely affects him or her in proceedings brought against him or her.
82.      Furthermore, it cannot in any way be ruled out that the legal person and the natural person who has the power to bind or represent it have different interests. (37)
83.      I am also unconvinced by the Luxembourg Government’s argument that allowing a director who is the subject of a guarantee call to challenge the ex officio tax assessment would be tantamount to distorting the finality of that assessment by offering him or her a second opportunity to challenge it.
84.      In that regard, it should be noted that recognising the right of the person against whom the guarantee call is issued to challenge, as an incidental question, the existence and amount of the debt stated in the
ex officio tax assessment does not affect the binding effect of that assessment on the taxable company. The right of the taxable company to which that act was addressed to contest it is forfeited once the time limit for bringing an appeal has expired.
85.      It is true that imposing the binding effect of the ex officio
tax assessment on the director makes recovery more effective and simplifies the procedure. However, the effectiveness of the system of joint and several liability must respect the requirements of the essence of the director’s rights of defence.
86.      Moreover, it cannot be considered that recognising the director’s right to contest the tax debt in the context of his or her appeal against the guarantee call decision gives him or her a second chance to contest the ex officio tax assessment.
87.      Respect for the essence of the right to an effective remedy does not require, as can be seen from the abovementioned case-law, (38) the possibility of directly challenging the measure concerned, in this case the ex officio tax assessment. It requires only that the director be able to challenge, as an incidental question, the factual and legal circumstances established in that tax assessment in so far as this is decisive for the outcome of the proceedings brought against him or her. As the Polish Government pointed out in its written observations, the director must have the right to submit contrary evidence in relation to the factual circumstances or legal classifications established in that tax assessment. The possibility of challenging that notice as an incidental question is limited to the means necessary to enable the director concerned to challenge his or her joint and several liability, including the amount of the debt for which he or she is held liable.
88.      On the other hand, in the light of the subjective nature of the rights of the defence, respect for the essence of the right to an effective remedy does not require that the director be able to rely, on his or her own behalf, on an infringement of the rights of the defence vis-à-vis the company. The director is a third party at the stage of the tax proceedings brought against the taxable company. It is for the company to defend its rights through an appeal brought, on behalf of the company  and in accordance with its statutes, by the director.
89.      The same applies with regard to the impossibility for the director to participate in his or her personal capacity in the tax proceedings. At the stage of the tax proceedings brought against a company, the director’s liability is hypothetical. There is only a possibility that joint and several liability proceedings may be initiated at a later stage against a third party and that, as a result of those joint and several liability proceedings, a decision which adversely affects that third party or significantly affects that third party’s interests will be adopted. (39) Respect for the rights of the defence does not require the director to be involved in his or her personal capacity in proceedings concerning an act which does not adversely affect him or her. This is without prejudice to the director’s right subsequently to raise pleas challenging the tax debt if he or she is personally sued for that debt.
90.      Finally, in order to justify the exclusion of the director’s right to contest the tax debt, the Luxembourg Government invoked professional secrecy and business secrecy. According to that government, the disclosure to any natural person, irrespective of his or her current or former status within the taxable company, of sensitive information such as the methods used to determine turnover or other confidential commercial data could compromise the economic interests of the company.
91.      In that regard, it should be recalled that the principle of respect for the rights of the defence has as a corollary the right of access to the file. (40) In the context of judicial proceedings, respect for the rights of the defence of a person means that he or she must be able not only to ascertain the reasons upon which the decision taken in relation to him or her is based, but also to have access to all the material in the file on which the authority has based that decision, in order to be able effectively to comment on that material. (41)
92.      Furthermore, the adversarial principle, which forms part of the rights of the defence, which are referred to in Article 47 of the Charter, means that the parties to a case must have the right to examine all the documents or observations submitted to the court for the purpose of influencing its decision, and to comment on them. (42)
93.      That being said, as I pointed out in point 67 of this Opinion, the principle of respect for the rights of the defence is not an absolute prerogative but may be subject to restrictions. Such restrictions, established in national law, may, in particular, be designed to protect requirements of confidentiality or business secrecy, which access to certain information and certain documents is liable to harm. (43)
94.      However, the administration cannot rely in the abstract on those requirements and deprive of all effectiveness the rights of the defence of the person concerned, in particular by refusing to grant him or her any right to challenge the tax debt, as an incidental question, and by refusing him or her access to any information relating to that debt. (44)
95.      Moreover, as argued, in essence, by QJ, the Spanish and Polish Governments and the Commission in their oral arguments, the information contained in the ex officio tax assessment which the person subject to the guarantee call intends to challenge relates to events of which he was aware by virtue of his position as manager. That tax assessment was issued during a period when the person subject to the guarantee call was the manager of the taxable company. Professional secrecy cannot, by definition, cover events of which the person subject to the guarantee call was aware by virtue of his position.
96.      In any event, even if certain information contained in the file is covered by the obligation of professional secrecy, the protection of the confidentiality of that information must be guaranteed and implemented in such a way as to reconcile it with the rights of the defence. (45)
97.      Accordingly, in the event of a conflict between, on the one hand, the interest of the person who is the subject of a measure adversely affecting him or her in having access to the information necessary to exercise fully his or her rights of defence and, on the other hand, the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy, it is for the competent authorities or courts to seek to strike a balance between these opposing interests in the light of the circumstances of each case. (46)
98.      In those circumstances, the exclusion of any defence by the manager as regards the tax debt on the basis of professional secrecy does not appear to be justified.
99.      In the light of the foregoing considerations, the answer to the second and third questions referred for a preliminary ruling must be that Article 47 of the Charter must be interpreted as precluding national legislation and practice which do not allow a director who is the subject of a guarantee call to challenge incidentally, in the context of his or her action against the administrative act establishing his or her joint and several liability for the unpaid VAT debt of the taxable company, the ex officio tax assessment previously issued to that company which has become final. The requirement to respect the essence of the right to an effective remedy means that the director must be granted the right to challenge, as an incidental question, the factual and legal circumstances established in that tax assessment, in so far as this is decisive for the outcome of the proceedings brought against him or her.
V.      Conclusion
100. In the light of all the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, Luxembourg) as follows:
(1)      Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as applying in the context of an action brought by a person seeking to challenge the legality of an administrative act holding him or her jointly and severally liable for the payment of VAT not paid by the taxable company of which he or she was the manager, pursuant to national legislation which provides that company directors are jointly and severally liable for the payment of VAT not paid, on account of a failure to discharge their obligations.
(2)      Article 47 of the Charter of Fundamental Rights must be interpreted as precluding national legislation and practice which do not allow a director who is the subject of a guarantee call to challenge incidentally, in the context of his or her action against the administrative act establishing his or her joint and several liability for the unpaid VAT debt of the taxable company, the ex officio tax assessment previously issued to that company which has become final. The requirement to respect the essence of the right to an effective remedy means that the director must be granted the right to challenge, as an incidental question, the factual and legal circumstances established in that tax assessment, in so far as this is decisive for the outcome of the proceedings brought against him or her.
1      Original language: French.
2      See judgments of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ (C‑1/21, EU:C:2022:788); of 14 November 2024, Herdijk (C‑613/23, EU:C:2024:961); of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130); and of 30 April 2025, Genzyński (C‑278/24, EU:C:2025:299).
3      For an overview of the guarantee call mechanism in VAT matters, see Barbabianca, G., Gasparotto, B., and Ronny, P., Législation TVA Annotée, 2nd edition, Legitech, Luxembourg, 2023, p. 536 et seq.; Bena, M., and Trevisan, E., ‘Guide pratique pour dirigeants de société: les actions essentielles en cas d’appel en garantie par l’administration fiscale’, 2024
(3),
Revue générale de fiscalité luxembourgeoise, p. 72; Loquet, E., ‘Responsabilité des dirigeants de société en matière de fiscalité directe et indirecte’, Droit fiscal luxembourgeois, livre jubilaire de l’International Fiscal Association, Luxembourg, Legitech, pp. 181 to 208. For an overview of the guarantee call mechanism in matters of direct taxation, see Schroeder, S.N., L’appel en garantie: des dirigeants de société en matière d’impôts directs, Legitech, Bertrange, 2020, pp. 153 to 167; Steichen, A., ‘La procédure fiscale – §330. Recours contre le bulletin d’appel’, in Manuel de droit fiscal, Legitech, Bertrange, 2023, pp. 327 and 328; Chaouche, F., and Lyaudet, J., ‘Chapitre 3 – Le bulletin de l’impôt sur le revenu’, in Fiscalité des personnes physiques, 3rd edition, Larcier Luxembourg, Windhof, 2024, pp. 805 and 806.
4      It should be noted that the joint and several liability of directors is also provided for in relation to direct taxation under Article 119 of the amended General Tax Code of 22 May 1931 (‘Abgabeordnung’; ‘the AO’). The appellant in the main proceedings argued before the lower courts that the principles set out in the AO were applicable in the context of his action and that, according to Article 119(2) of the AO, there was a possibility of third-party proceedings against the ex officio tax assessments. However, the Cour d’appel (Court of Appeal) ruled that the provisions of the AO did not apply in the field of indirect taxation. The question of the applicability of Article 119(2) of the AO in the main proceedings is the subject of the third part of the first ground of appeal in cassation raised by QJ. The questions referred for a preliminary ruling do not concern that provision.
5      It is apparent from the documents in the file before the Court that the annual tax assessment notice for 2014 contained errors and that the annual VAT returns for 2015 and 2016 had not been filed within the prescribed time-limits.
6      Judgment of 1 August 2025, BAJI Trans (C‑544/23, EU:C:2025:614, paragraph 49), and judgment in Åkerberg Fransson (paragraph 19).
7      Judgment of 30 April 2025, Genzyński (C‑278/24, EU:C:2025:299, paragraph 55 and the case-law cited).
8      Judgment of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ (C‑1/21, EU:C:2022:788, paragraph 69 and the case-law cited).
9      Judgment of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130, paragraph 47).
10      Judgment of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ (C‑1/21, EU:C:2022:788, paragraph 58 and the case-law cited).
11      Judgment of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ (C‑1/21, EU:C:2022:788, paragraph 59 and the case-law cited).
12      Judgment of 3 April 2025, Cityland (C‑164/24, EU:C:2025:241, paragraph 34 and the case-law cited).
13      Judgment of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 59 and the case-law cited).
14      Judgments of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ (C‑1/21, EU:C:2022:788, paragraph 70); of 14 November 2024, Herdijk (C‑613/23, EU:C:2024:961, paragraph 18); and of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130, paragraph 49).
15      According to the explanatory memorandum to the projet de loi du 2016 portant mise en œuvre de la réforme fiscale du 11 octobre 2016, no 7020 (2016 draft law implementing the 2017 tax reform of 11 October 2016, No 7020), ‘it is important to ensure that [VAT] is actually paid by [VAT-registered operators] to the State and is not diverted for other purposes’. The same explanatory memorandum states that the provisions allowing for the prosecution of company directors are adopted ‘with a view to increasing the State’s guarantees of recovery and making the persons who direct or manage any entity subject to VAT more accountable’ (emphasis added).
16      Judgment of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ (C‑1/21, EU:C:2022:788, paragraph 71).
17      See paragraphs 27 and 28 of the judgment in
Åkerberg Fransson.
18      Point 39 of this Opinion.
19      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 54 and the case-law cited).
20      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 55 and the case-law cited).
21      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 57 and the case-law cited).
22      See, to that effect, judgment of 16 May 2017, Berlioz Investment Fund
(C‑682/15, EU:C:2017:373, paragraph 50). See also Kaprielian, J., ‘La protection effective de l’assujetti et le contrôle TVA’, 2024(2), Cahiers de fiscalité luxembourgeoise et européenne, pp. 161 to 194, in particular p. 163.
23      Judgment of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130).
24      Judgment of 18 December 2025, SACD and Others (C‑182/24, EU:C:2025:979, paragraph 73 and the case-law cited).
25      See, to that effect, judgment of 8 April 2025, European Public Prosecutor’s Office (Judicial review of procedural acts) (C‑292/23, EU:C:2025:255, paragraph 79 and the case-law cited).
26      Judgment of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 43 and the case-law cited).
27      See, to that effect, judgments of 13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17, paragraph 24, and in
Adler Real Estate (paragraph 38).
28      Judgment of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130, paragraph 55 and the case-law cited).
29      See, to that effect, judgment of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130, paragraph 55).
30      See Papagiannoulas, A., ‘Responsabilité fiscale du dirigeant social – Les vicissitudes du débat contradictoire dans le contentieux de la responsabilité fiscale du dirigeant social (LPF, art. L. 267)’, Revue de droit fiscal, No 20, 19 May 2023, pp. 1 to 7, in particular p. 6. Referring to the case-law of the Cour de cassation (Court of Cassation, France) (Court of Cassation, Civil Division, Commercial Chamber, 9 November 2017, 17-16.464), that author emphasises that the French Court of Cassation indirectly concluded that ‘a constitutional basis’ exists for the possibility of a company director, who is held jointly and severally liable for tax purposes, to rely, inter alia, on pleas relating to the amount of tax payable and its basis of assessment.
31      See judgments of 1 December 2022, Aquila Part Prod Com (C‑512/21, EU:C:2022:950, paragraph 60), and of 16 October 2019, Glencore Agriculture Hungary
(C‑189/18, EU:C:2019:861, paragraph 67).
32      Judgment in Adler Real Estate (paragraph 59).
33      Judgment in Adler Real Estate (paragraphs 59 and 60).
34      See, by analogy, judgment of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130, paragraph 56).
35      The competent court (judicial or administrative) to examine claims disputing the tax base falls within the procedural autonomy of Member States.
36      Point 76 of this Opinion.
37      Judgment of 10 November 2022, DELTA STROY 2003 (C‑203/21, EU:C:2022:865, paragraph 63).
38      See point 64 of this Opinion.
39      Judgment of 27 February 2025, Adjak (C‑277/24, EU:C:2025:130, paragraph 61).
40      Judgment of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 51).
41      See, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 92).
42      Judgment of 25 April 2024, NW and PQ (Classified information)
(C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 93).
43      See, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary
(C‑189/18, EU:C:2019:861, paragraph 55).
44      See, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary
(C‑189/18, EU:C:2019:861, paragraph 58). See also Papagiannoulas, A., cited in footnote 30, p. 6.
45      See, to that effect, judgment of 13 September 2018, UBS Europe and Others
(C‑358/16, EU:C:2018:715, paragraph 68).
46      Judgment of 13 September 2018, UBS Europe and Others
(C‑358/16, EU:C:2018:715, paragraph 69).