Article: Shades of Transparency: DAC6 and the Client- Attorney Privilege

Abstract

Tax Law has become more and more a data-centric discipline through the years. The struggle against international tax avoidance and evasion has pushed the European union to pass a number of directives regulating the exchange of information and the taxpayers’ duty to disclose information and data concerning their business and investments. The article considers DAC6 (Directive on Administrative Cooperation, Council Directive 2018/822) a qualitative change in this scenario, as it appears to erode the client-attorney privilege. It imposes, for the first time, a duty of transparency to intermediaries such as consultants and (potentially) lawyers which is in collision with fundamental rights, eventually casting a shadow on the due process clause and (indirectly) the rule of law. The central part of the article focuses on the extension of the privilege in tax law, trying to strike a balance between the need to curb tax avoidance and to preserve the due process clause. The findings are that the client-attorney relationship is one of the pillars the rule of law is built on, it should be preserved in the field of taxation too and eventually that no directive or regulation have the power to waive it. The conclusion is that DAC6 is to be considered a step in the wrong direction by the European legislator as the first ruling of the CJEU (Court of Justice of the European Union) seems to confirm. Merger directive, 2009/133/EC, 90/434/EEC, shareholder, allotment of shares, merger, demerger, exchange of shares