The French Supreme Administrative Court has requested a preliminary ruling from the European Court of Justice (ECJ) regarding the DAC6 filing rules applicable to intermediaries in the case of legal professional privilege.
French domestic law states that intermediaries relying on legal professional privilege are still subject to DAC6 rules, and need to obtain their client’s permission to waive privilege and make a report within a 30 day period. If the relevant intermediary does not obtain their client’s consent, then they have to notify other intermediaries of their reporting obligations and a report needs to be made by a different intermediary within 90 days of notification.
What is the issue?
The French National Council of Bars, the Conference of the French Bar Presidents and the Paris Bar Association argued to the French Supreme Administrative Court that the legal professional privilege rules in relation to DAC6 are contrary to EU law. While the French Supreme Administrative Court annulled some sections of the French tax authorities as a result of the arguments, additional questions remain.
These are the issues that have been put forward to the ECJ:
- Is the right to a fair trial infringed because legal professional privilege does not exclude lawyers acting in legal proceedings from the scope of intermediaries subject to the obligation of declaration or notification?
- Is the right to respect for private life and communications infringed, as lawyers evaluating the legal situation of their clients are not excluded from the scope of the filing obligations?
What happens now?
Until the ECJ answers the questions raised, French intermediaries who are affected by legal professional privilege will have to ensure that they adhere to the DAC6 filing and notification deadlines. Once the ECJ issues their decision, it will affect how legal professional privilege is interpreted in all EU Member States.
