Two recent cases shed light on the approach of the Luxembourg courts to requests for exchanges of information.
On February 9 2012 the Administrative Court of Appeal overturned a Lower Administrative Court decision on the procedure applicable to a request for an exchange of information. The court of first instance had held that the new procedure set out in the Law of March 31 2010 did not apply because of the "uniqueness" of the request, which had been initiated before the law entered into force (for further details please see "Request for exchange of information under OECD standards").
The appellate court rejected the Lower Administrative Court's view of the uniqueness of the request and held the new procedure in the law to be immediately applicable if:
- on the date on which the foreign request for information is submitted, a tax treaty providing for an exchange of information is in force; and
- the requested information refers to a period covered by the relevant treaty.
In this case an amended tax treaty providing for an exchange of information with France was in force when the French authorities made the request; however, the information in question related to periods both before and after the amended treaty came into effect. The Administrative Court of Appeal therefore held that the request was governed by the new procedure insofar as the information related to the amended treaty, but that the former procedure applied to the earlier information.
On February 6 2012 and March 20 2012 the Lower Administrative Court rendered two further decisions regarding a request for information, this time from the Swedish tax authorities. A Luxembourg bank received a request under the law to provide certain information regarding a client. The client appealed against the request on the grounds that the information was irrelevant and sought access to the request submitted by the Swedish authorities.
In the first decision the court recognised the confidential nature of the request made by the foreign tax authorities; however, it held that refusing the plaintiff access to the request would contradict the principles of adversarial process and the right to a fair trial. Therefore, the court ordered the Luxembourg tax authorities to submit the foreign request to the court's registry for communication to the plaintiff. It also granted the plaintiff a reasonable period in which to acquaint himself with the content of the request and allowed him to file an additional statement.
In the second decision the court concluded that the requested information was foreseeably relevant, since the conditions listed in the protocol to the applicable tax treaty were met. The court therefore refused to assess the facts and declared the plaintiff's request unjustified.
The plaintiff has appealed the second decision to the Administrative Court of Appeal.
For further information on this topic please contact Thierry Lesage or Alain Goebel at Arendt & Medernach by telephone (+352 40 787 81), fax (+352 40 780 4) or email ([email protected] or [email protected]).