OS ECJ-TF 3/2017 on the Decision of the Court of Justice of the European Union of 16 May 2017 in Berlioz Investment Fund SA (Case C-682/15), Concerning the Right to Judicial Review Under Article 47 of the EU Charter of Fundamental Rights in Cases of Cross-Border Mutual Assistance in Tax Matters

Abstract

This article examines the decision of the Grand Chamber of the Court of Justice of the European Union (ECJ) in Berlioz Investment Fund SA (Case C-682/15) delivered on 16 May 2017, following the Opinion of Advocate General Wathelet of 10 January 2017.

The case concerned the levying of tax penalties in circumstances in which a third party partially refused to provide the Luxembourg tax authorities with information requested, by way of mutual assistance under the Mutual Assistance Directive (2011/16), by the French tax authorities.

Having clarified that when exchanging information by way of mutual assistance under an EU directive, EU Member States are implementing EU Law, the Grand Chamber confirmed the right to judicial review in connection with the levying of penalties and acknowledged Berlioz' legal standing to challenge the foreseeable relevance of information that one tax authority asks another to exchange by way of mutual assistance. When reviewing the legality of the request in this context, the judiciary will ascertain whether manifestly irrelevant information is being requested, without necessarily informing the taxpayer of the details.

Keywords: Taxation, Tax law, European taxation

JEL Classification: K33, K34, F13, E62, D78, E62, F02, F23, F42, H20, H22, H23, H25, H26, H87, O19, O23, O24