In the Berlioz Investment Fund SA v. Director of Administration of Direct Contribution decision dated 16 May 2017, the Court of Justice of the EU ruled on the interpretation of Directive 2011/16/EU concerning administrative cooperation between the Member States in the field of taxation and the possibility of an effective remedy before an impartial tribunal in the event of a conviction. In the present case, the anonymous company Berlioz was ordered to pay a pecuniary penalty for refusing to respond to a request for information such as the characteristics of the registered office in Luxembourg, the number of employees or the holdings in other companies, in the context of an exchange of data with the French tax authorities.
The company refused to transmit the information concerning their partners on the grounds that this information was not relevant for the control carried out by the tax authorities.
The 'plausible relevance' of the information requested by one Member State to another Member State is the sine qua non condition for triggering the obligation to transmit data and to justify the injunction decision by the requesting. Since the Directive is not limited to formal regularity, the information requested must be of plausible relevance 'having regard to the identity of the taxpayer concerned and to that of the third party who may have been informed and to the needs of the tax investigation'.
The CJEU grants a right to challenge the decision to a person who has been awarded a monetary penalty for violation of an administrative order within the framework mentioned above. The national court then has jurisdiction to amend the penalty imposed, as well as a power to review the lawfulness of the injunction decision, which is limited to the mere verification of the absence of the 'plausible relevance' of the request for information. In order to carry out this judicial review, the judge must have full access to the request for information.
This decision strengthens the procedural rights of citizens, whose data can no longer be the subject of a precarious administrative procedure.
