DAC6 and the professional secrecy of tax advisers

Council Directive (EU) 2018/822 of May 25, 2018, better known as DAC6, establishes the obligation of tax intermediaries to declare those transactions that, in the international sphere (between EU countries or with third countries), present indications that make them susceptible to be considered as aggressive tax planning. Its transposition into Spanish domestic law took place through Law 10/2020, of 29 December, which came into force on December 31, 2020.

Its purpose is to reinforce the effectiveness of the tax system, acting as an adjuvant in the fight against tax fraud and tax avoidance. Although DAC6 provides for professional secrecy with the legitimate aim of preventing abuse or unjustified use, this clashes with the legal obligation not to disclose information received from clients or third parties in the exercise of certain professions (e.g. lawyers).

The ECJ has recently recognised that the Directive infringes the professional secrecy of lawyers, but not that of other tax intermediaries (economists, consultants, administrative managers, etc.). In this regard, it states that “the notification obligation laid down in the Directive is not necessary and therefore infringes the right to respect for communications between the lawyer and his client” (Judgment of 8 December 2022 -case C-694/20-). In the same vein, the Court states that “it infringes the right to respect for communications between lawyer and client guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union”.

Consequently, the professional secrecy of lawyers is fully protected within the scope of the Directive, but not that of other intermediaries in the tax field.

Miguel Ángel Serra