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Peter Puškár*

On 30th March, Advocate Geberal Kokott delivered the opinion on case C-73/16. The case involved disagreement between the Supreme Court of the Slovak Republic and the Constitutional Court of that Member State on whether the tax authorities are permitted to keep a confidential list of natural persons who purport to act as company directors of specific legal persons. One of the questions referred to the CJEU was whether the list may be rejected as inadmissible evidence if it was circulated without the consent of the tax authorities. The other issues raised were whether the exhaustion of an obligatory administrative remedy may be made a precondition for the bringing of legal proceedings, and on whether its case-law or the case-law of the European Court of Human Rights (ECtHR) should be followed, where those two courts are in conflict.

The AG found that

1. The use of personal data for the purposes of tax collection is governed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, while in the sphere of criminal law only Articles 7 and 8 of the Charter are applicable, in so far as questions governed by EU law are at issue.

2. The right to effective judicial protection under Article 47 of the Charter and the principle of effectiveness do not preclude an obligation to exhaust an administrative remedy as a condition on bringing legal proceedings, if the rules governing that remedy do not disproportionately impair the effectiveness of judicial protection. Consequently, the obligatory administrative remedy must not cause unreasonable delay or excessive costs for the overall redress procedures.

3. The tax authorities are permitted for their own purposes in accordance with Article 7(e) of Directive 95/46/EC to keep a list of persons who purport to act as company directors of specific legal persons and who have not consented to being named on this list. This assumes that the task was legally assigned to the tax authorities, that the use of the list is appropriate and necessary for the purpose of the tax authorities and there are reasonable grounds to suspect that these persons are properly named on the list. Neither the fundamental rights to privacy, Article 7 of the Charter, or data protection, Article 8 of the Charter, would in this case preclude the creation and use of the list.

4. The principle of a fair hearing enshrined in Article 47(2) of the Charter allows in principle for the internal documents of an authority involved in legal proceedings obtained by another party to the proceedings without the authority’s consent to be refused as inadmissible evidence. That refusal is not, however, possible if the list is held by a financial authority of a Member State and contains the legal claimant’s personal data which the authority is required to disclose to the legal claimant under Article 12 and 13 of Directive 95/46/EC.

5. If a national court comes to the conclusion that the decision on proceedings pending before it would be affected by case-law of the Court of Justice, under which rights in the Charter, which correspond to rights guaranteed by the ECHR, are afforded less protection than under the case-law of the ECtHR, it may call on the Court of Justice to ascertain how EU law is to be interpreted in respect of those proceedings. If there is no judicial remedy under national law against the decisions of the national court itself, it is obliged to bring the matter before the Court of Justice.

Case Number C-73/16

Name of the parties Peter Puškár

Date of the judgement 2017-03-30

Court Court of Justice of the EU