The judgment was issued in connection with a request for a preliminary ruling from the Belgian Constitutional Court. The request for a preliminary ruling concerned the validity of Article 8ab section 5 of the Council Directive (UE) 2011/16/UE of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by the Council Directive (UE) 2018/822 of 25 May 2018, in the light of the provisions of the The Charter of Fundamental Rights of the European Union, specifically Article 7, which grants everyone the right to private and family life, home and communication.
Pursuant to the Belgian MDR regulations the application of which led the Belgian Court to bring the case before the CJEU, if an intermediary is subject to legal professional privilege, then he or she is obliged to notify the other intermediary in writing that he or she is unable to comply with the reporting obligation, as a result of which the reporting obligation automatically rests with the other intermediary.
Belgian regulations differ from Polish regulations, as they impose an obligation to inform other intermediaries in the first place, and only in the event of their absence this obligation is imposed on the beneficiaries (the provisions of the Polish Tax Ordinance impose an obligation to inform all obligated entities, including beneficiaries, at the same time).
What results from the CJEU’s judgment?
The CJEU ruled the invalidity of provision of the directive requiring an attorney, who is a subject to the obligation of legal professional privilege and is acting as an intermediary within the meaning of the directive, to notify without any delay any other intermediary who is not the lawyer’s client of their MDR reporting obligations.
Therefore, the non-compliance of the EU MDR regulations was noticed by the CJEU in relation to a precisely defined situation in which:
- the information obligation was imposed on a person who is bound by legal professional privilege (attorney),
- this person acts as an intermediary in the case at hand,
- the obligation is to notify the other intermediary of his / her MDR reporting obligations,
- both intermediaries are not in a lawyer-client relationship.
In the opinion of the CJEU, in order to achieve the objectives of the directive, it is not necessary for intermediaries to inform other intermediaries about the identified MDR reporting obligations, inter alia due to the fact that:
(i) each intermediary is directly and individually subject to reporting obligations,
(ii) intermediaries are to be exempt from filing the information only on condition that they have proof that the same information has already been filed by another intermediary,
(iii) intermediaries are required to notify without delay their client of its reporting obligations.
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