Podcast

Privilege and tax advice: impact of recent ECJ decisions

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Published Date

Nov 18 2024

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We were recently involved in advising a Luxembourg law firm in relation to an order to disclose information and documents based on an information request issued by another EU Member State, and whether providing such information would be a breach of the rules on privilege. The matter went all the way to the CJEU, with the CJEU finding that (i) the order was an interference with the right to respect communications between a lawyer and their client, which are protected under the EU Charter of Fundamental Rights and the European Convention on Human Rights and (ii) the current Luxembourg rules which exclude tax advice from the scope of legal privilege constitute an unjustified interference with such rights.

In this podcast, our tax and disputes experts, including Luxembourg-based partner Jean Schaffner and senior associate Julie Kofler, along with Paris-based partner Hippolyte Marquetty and London-based counsel Gareth Banfield, share their views and insights on:

Why the decision in F and Ordre des avocats du barreau de Luxembourg v Administration des contributions directes (C-423/23) is significant and what it means for privilege rules in both Luxembourg and other EU Member States.
How the increasing criminalisation of tax matters is having an impact on what is and is not covered by privilege.
How other recent decisions such as those in the Orde van Vlaamse Balies Belgian DAC 6 cases have impacted the rules in this area, including in relation to who is covered by the rules on privilege; and
Factors that clients need to consider in this area and why the position is more nuanced than you might think.

Listen to the podcast here.

For more AO Shearman tax insights, see our webpage here: Our insights - A&O Shearman