On 26 September 2024, the Court of Justice of the European Union (ECJ) ruled on the issue of attorney-client privilege.

The dispute was between F. SCS and the Ordre des avocats du barreau de Luxembourg, and the Administration des Contributions Directes (the Luxembourg Inland Revenue the LTA).

The LTA received a request for information, based on directive 2011/16, from the Spanish tax authorities. It issued an injunction requiring F. to provide all available documents and information concerning the services it provided to K., a company incorporated under Spanish law.

F. refused, as it was unable to provide any information concerning the client due to professional secrecy. The tax authorities fined F. for failing to comply with the injunction.

The Administrative Court of Luxembourg decided to stay proceedings and to refer a number of questions to the ECJ for a preliminary ruling.

Preliminary questions

The first question concerns the applicability of article 7 of the Charter of Fundamental Rights of the European Union ("Charter") to legal advice given by a lawyer in company law matters. Does a decision requiring a lawyer to provide all documentation and information relating to their relationship with their client, in connection with such a consultation, constitute an interference with the right to respect for communications between a lawyer and their client, guaranteed by the said article?

The second question concerns the compatibility of an injunction such as that addressed to F. with article 7 and article 52(1) of the Charter.

The ECJ's position

As to the first question referred for a preliminary ruling

The specific protection afforded to lawyers' professional secrecy by article 7 of the Charter and article 8(1) of the ECHR is justified by the fact that lawyers are entrusted with a fundamental task in a democratic society, namely the defense of litigants. This fundamental task includes the requirement that all persons subject to trial must have the possibility of speaking freely to their lawyer, whose very profession essentially encompasses the task of providing independent legal advice to all those who need it, and the lawyer's duty of loyalty to their client.

It follows that a lawyer's legal advice, whatever area of law it concerns, enjoys the enhanced protection guaranteed by section 7 of the Charter to communications between a lawyer and their client. Therefore, an injunction such as that at issue in the main proceedings constitutes an interference with the right to respect for communications between a lawyer and their client guaranteed by that article.

As to the second question

The enhanced protection of communications between a lawyer and their client is applicable irrespective of the area of law in which advice or representation is provided to the client.

Article 7 of the Charter guarantees the secrecy of legal advice given by a lawyer as to its existence and content. Persons who consult a lawyer can reasonably expect their communications to remain private and confidential and, apart from in exceptional situations, trust that their lawyer will not disclose to anyone, without their agreement, that they have consulted them. The rights enshrined in section 7 of the Charter must be considered in relation to their function in society. The Charter admits limitations to exercising these rights, provided that these limitations respect the essential content of the said rights.

Luxembourg law prohibits lawyers from refusing access to information entrusted to them in exercising their profession, insofar as it concerns facts of which they have become aware in the course of providing advice or representation in tax matters, and except in the case of questions to which the answer would expose their clients to the risk of criminal prosecution.

The consequence of such a prohibition is that none of the content of exchanges between a lawyer and their client in tax matters can be kept secret from the tax authorities. It renders the protection guaranteed by article 7 devoid of substance.

The injunction at issue concerns an entire file that does not relate to tax matters. It broadens the scope of the infringement of the substance of the right protected by section 7 of the Charter.

The ECJ ruled that such national legislation, and its application in the present case by means of the contested injunction, infringed the essential content of the right guaranteed by section 7 of the Charter, due to the extent of the breach of attorney-client privilege that the LTA authorized in respect of communications between the attorney and their client.