"The Right" to Privacy and the DAC6: a new twist considering the conclusionsof "AG" Nicholas Emiliou?

Abstract

At the European Union level, tax cooperation has been framed through Directive 2011/16/EU on administrative cooperation in the field of taxation (DAC) and its amendments. In particular, the DAC6 obliges tax intermediaries and, sometimes, the taxpayer itself to report certain aggressive tax planning mechanisms to the tax administration. However, in this context it is obvious that interferences with the right of privacy may arise. In fact, on 29 February 2024, Advocate General (AG) Nicholas Emiliou issued his Opinion in the case Belgian Association of Tax Lawyers and others (C-623/22), concluding that the DAC6 involves an interference with the right to privacy, although such interference is proportionate in view of the objectives pursued by the European Union. The question to be elucidated is, therefore, whether in line with the AG’s conclusions, the right to privacy has been adequately protected in the scope of the DAC6.