The CJEU has ruled that lawyers’ legal professional privilege prevails over their obligation to report to the authorities various activities carried out by their clients which are considered to be suspicious.
The CJEU had to determine what prevails: lawyers’ legal professional privilege (an essential element in a democratic society) or the need to combat aggressive tax planning and prevent the risk of tax evasion and fraud (of essential general EU interest). Legal professional privilege won!
According to the CJEU, the obligation for lawyers to notify intermediaries involved in such planning of their reporting obligations infringes lawyers’ legal professional privilege. The Court holds that such interference with lawyers’ legal professional privilege is not necessary to achieve the objectives of combating aggressive tax-planning and preventing the risk of tax avoidance and evasion.
The novelty of this case is that the CJEU has recognised that lawyers’ legal professional privilege prevails over tax objectives and obligations. The Court held that, save in exceptional circumstances, clients must be able to have a legitimate expectation that their lawyer will not disclose to anyone, without their consent, that they are consulting him or her.