Luxembourg: Exchange of Information and EU Fundamental Rights (C-682/15, Berlioz Investment Fund S.A.)

The present case concerns the question of whether the right to an effective remedy — as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union — means that a Member State must allow a company to challenge an order requesting information for the purposes of the tax assessment of another party in a court that would have unlimited authority to review the legitimacy of that order, including the “foreseeable relevance” of the original request made by another Member State. The case has the potential to provide a crucial piece in the legal puzzle that surrounds exchange of information in tax matters in the triangle of domestic law, tax treaty law and EU law, with particular emphasis on the protection of taxpayer (and related party) rights. However, due to the actual circumstances of the case, it does not appear likely that the CJEU will address all of the questions asked by Luxembourg’s Cour administrative. In particular, the meaning of “foreseeable relevance” under Directive 2011/16 may be seen as having little relevance for the outcome of the case in light of the broad meaning given to it by Luxembourg’s statute so that the CJEU may leave it unresolved even if it agrees with the domestic court on the application of Article 47 of the Charter.