Berlioz 2: will the Court of Justice protect fundamental rights in the exchange of information procedure?

in Revue de Droit Fiscal (2019)

Exchange of information upon request and the right to judicial review in the context of this procedure remain in the spotlight of legal debate. Less than a year after the delivery of two landmark ... [more ▼]

Exchange of information upon request and the right to judicial review in the context of this procedure remain in the spotlight of legal debate. Less than a year after the delivery of two landmark judgments by the Administrative Tribunal of Luxembourg in the so-called Berlioz 2, the Luxembourgish legislature adopted amendments to the law of 25 November 2014. The changes to the law empower the information holders to challenge information requests received from the state tax authorities and require the latter to check the foreseeable relevance of information requested by another state. Less than a month after the introduction of these amendments, the Administrative Court of Luxembourg, having examined the state’s appeal in Berlioz 2, invited the Court of Justice of the European Union (‘CJEU’) to answer two prejudicial questions. They concern the right to judicial remedy for information holders and taxpayers as well as the interpretation of the foreseeable relevance standard in the exchange of information procedure. The reasoning of the Administrative Court underpinning the decision to refer these questions to the CJEU will be discussed in the present article. [less ▲]