Mandatory Disclosure Regime (MDR) in the light of rulings from the CJEU and EU Member State courts

Question for written answer E-001469/2024
to the Commission
Rule 144
Marcin Sypniewski (ESN)

In recent years, the rules arising from Directive 2018/822 (DAC6) have been the subject of critical rulings by the CJEU and Member State courts. Among the issues raised were breaches of professional secrecy by professional intermediaries (lawyers, solicitors and tax advisors). The CJEU, in its judgment of 8 December 2022, ref. C-694/20, ruled that legal professional privilege does not permit the state administration to be informed about MDR and that the application of this requirement violates Article 7 of the Charter of Fundamental Rights. The Belgian Constitutional Court in its judgment of 15 September 2022, ref. 103/2022, the French Council of State in its judgment of 14 April 2023, ref. 448486, and the Polish Constitutional Court in its judgment of 23 July 2024, ref. K13/20, have ruled that the MDR reporting obligation for professional intermediaries violates professional secrecy, with the result that the application of the laws implementing the Directive was set aside in this respect.

• 1.Will the Commission audit the DAC 6 Directive, taking into account the positions expressed by the CJEU and national courts?
• 2.The FISC Committee already concluded in 2022 that the DAC 6 Directive had failed to achieve its objectives. Given this position, does the Commission intend to limit the scope of the Directive, having regard to the principle of proportionality and is the Commission considering such a solution in the event of a negative audit of the Directive?
• 3.Does the Commission intend to draw up a white list of arrangements that would not trigger reporting obligations at cross-border and national level?

Submitted: 1.8.2024