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

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.