TY - JOUR

T1 - The End Does Not Justify the Means

T2 - On How the Secondary EU Law Infringes the Primary EU Law in the Light of the Recent Judgments of the CJEU*

AU - Papis-Almansa, Marta

N1 - Funding Information: This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 101028296. Publisher Copyright: © 2023 Kluwer Law International BV, The Netherlands

PY - 2023

Y1 - 2023

N2 - The constitutional character of the Union legal order based on the rule of law requires that secondary sources of Union law are not infringing the primary sources, including the Charter of the Fundamental Rights of the European Union (CFR). The latter’s importance as a valid instrument to be invoked against measures that are excessive in their interference with the fundamental rights has recently been reinforced by the Court of Justice of the European Union (CJEU) in the judgments in cases such as C-694/20, Orde van Vlaamse Balies and Others, and joined cases C-37/20 and C-601/20, Luxembourg Business Registers and Sovim. The CJEU invalidated provisions of the Directive on Administrative Cooperation (DAC6) and 5AMLD which reminded that this is the case even when rules are motivated by important collective interests. These include the combat against tax evasion and tax fraud and enhancing broadly understood transparency and are agreed upon and are ‘validated’ by a Union’s legislature. The lessons to be learned are not to be underestimated. Understanding where the limits lie is decisive for valid law making and law enforcement as well as for effectively invoking the rights of individuals and businesses.

AB - The constitutional character of the Union legal order based on the rule of law requires that secondary sources of Union law are not infringing the primary sources, including the Charter of the Fundamental Rights of the European Union (CFR). The latter’s importance as a valid instrument to be invoked against measures that are excessive in their interference with the fundamental rights has recently been reinforced by the Court of Justice of the European Union (CJEU) in the judgments in cases such as C-694/20, Orde van Vlaamse Balies and Others, and joined cases C-37/20 and C-601/20, Luxembourg Business Registers and Sovim. The CJEU invalidated provisions of the Directive on Administrative Cooperation (DAC6) and 5AMLD which reminded that this is the case even when rules are motivated by important collective interests. These include the combat against tax evasion and tax fraud and enhancing broadly understood transparency and are agreed upon and are ‘validated’ by a Union’s legislature. The lessons to be learned are not to be underestimated. Understanding where the limits lie is decisive for valid law making and law enforcement as well as for effectively invoking the rights of individuals and businesses.

KW - AMLD

KW - Charter of the Fundamental Rights

KW - compatibility with primary Union law

KW - DAC6

KW - EU constitutional order

KW - proportionality

KW - right to fair trial

KW - right to privacy

KW - taxpayers’ rights

KW - transparency

U2 - 10.54648/taxi2023055

DO - 10.54648/taxi2023055

M3 - Journal article

AN - SCOPUS:85170715484

VL - 51

SP - 612

EP - 629

JO - Intertax

JF - Intertax

SN - 0165-2826

IS - 8-9

ER -