Opinion of Advocate General Wathelet in the case Berlioz Investment Fund.
Wathelet proposes that the Court should answer the questions for a preliminary ruling referred by the Cour administrative as follows:
1. Where a Member State makes provision in its legislation for the imposition of a pecuniary penalty on a person who refuses to provide information in the context of an exchange of information between tax authorities based, in particular, on the provisions of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation, it implements EU law, which entails the application of the Charter.
2. A person may rely on Article 47 of the Charter (right of an effective remedy and to a fair trial) where he considers that the pecuniary administrative penalty imposed on him is based on a request for information the validity of which he questions provided that that request is made in the context of a procedure which constitutes the implementing of the law of the Union.
3. Article 47 of the Charter must be interpreted as meaning that the court hearing the action against the pecuniary administrative penalty imposed following the refusal to respond to the information order must be able to examine the legality of that order. However, having regard to the legitimate objective of combating tax evasion and tax avoidance pursued by Directive 2011/16, the court must be capable only of verifying, on the basis of a brief examination, that the information order is based on a request for information which demonstrates a link between, on the one hand, the information requested, the taxpayer concerned and any third party asked to provide information and, on the other, the tax objective pursued. In order to entail a finding of illegality, the deficiency between the request for information and the tax objective must be manifest.
4. The foreseeable relevance of the information sought by one Member State from another Member State on the basis of Directive 2011/16 is a condition which the request for information must satisfy in order for the requested Member State to be required to comply with it.
5. The request for information on which the information order is based must necessarily be communicated to the court hearing the action against the pecuniary sanction, and also to the requested third party. If the administration of the requested State considers that the latter communication is capable of compromising the effectiveness of the collaboration between administrations with a view to combating tax evasion and tax avoidance (or of adversely affecting another public interest or the fundamental right of another individual), it is for that authority to adduce evidence to that effect in the context of that action and for the court to resolve the question.
0