TA Luxembourg - N° 46416
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| TA Luxembourg - N° 46416 | |
|---|---|
 | |
| Court: | TA Luxembourg (Luxembourg) |
| Jurisdiction: | Luxembourg |
| Relevant Law: | Article 96 GDPR Article 7 and 8 CFR |
| Decided: | 24.10.2021 |
| Published: | |
| Parties: | |
| National Case Number/Name: | N° 46416 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | French |
| Original Source: | Luxembourg courts (in French) |
| Initial Contributor: | Florence D'Ath |
The Administrative Court of Luxembourg rejected a request for interim measures in relation to the transfer of personal data by the Luxembourg tax authorities to the US authorities under FATCA, considering that the alleged breaches of the GDPR invoked by the applicant were not serious enough.
English Summary
Facts
Mr X is a French resident with a dual French and US nationality. Mr X considers himself as a French national rather than an American national because he has no link with the US, except for the fact that he was born there. In May 2020, Mr X was informed by a banking institution in Luxembourg that he would be considered as an American national under the Foreign Account Tax Compliance Act ("FATCA"), and that the Luxembourg tax authorities would therefore share data relating to his bank account with the competent US authorities.
Mr X objected to such processing and asked for the erasure of his personal data, but the Luxembourg authorities rejected his request by decision of 22 March 2021. They argued, among others, that the processing of Mr X's personal data was necessary for compliance with the Luxembourg Law of 24 July 2015 relating to FATCA.
Mr X filed an appeal against the decision of 22 march 2021 with the Administrative Court of Luxembourg, and asked for urgent interim measures.
Holding
The Administrative Court of Luxembourg rejected the appeal of Mr X, on the ground that the conditions for granting interim measures were not fulfilled. In particular, the Court found that none of the alleged breaches of the GDPR were serious or significant enough.
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English Machine Translation of the Decision
The decision below is a machine translation of the French original. Please refer to the French original for more details.
Administrative court N ° 46416 of the roll
of the Grand Duchy of Luxembourg Registered on August 31, 2021
Public hearing of September 24, 2021
Request for the institution of a safeguard measure
introduced by Mr X,… (France)
in relation to a decision of the administration of direct contributions
in the area of automatic exchange of information and data protection
___________________________________________________________________________
ARRANGEMENT
Vularequest registered under number 46416 of the roll and filed on August 31, 2021 at the registry
of the administrative court by the Luxembourg limited liability company
NAUTADUTILH AVOCATS LUXEMBOURG S.AR.L., entered on List V of Table
of the Luxembourg Bar Association, established and having its registered office at L-1233
Luxembourg, 2, rue Jean Bertholet, registered with the Trade and Companies Register
Luxembourg under number B 189.905, represented for the purposes hereof by Maître Vincent
WELLENS, lawyer at the Court, residing in Luxembourg, registered with the Order of
lawyers from Luxembourg, on behalf of Mr X, residing in ... (France), ..., tending to see
institute a stay of execution in relation to a decision of the director of the administration of
Direct contributions dated March 22, 2021 that rejected a request to stop the exchange
automatic information between the tax administration of the Grand Duchy of Luxembourg and
that of the United States of America in application of the "Foreign Account Tax Compliance Act"
approved by the law of July 24, 2015, an action for annulment, registered under number 45851
of the roll, directed against the same decision having been filed with the registry of the administrative court in
date of April 2, 2021 by the applicant as well as by the French law association Y;
Having regard to articles 11 and 12 of the amended law of 21 June 1999 on the regulation of
proceedings before administrative courts;
Having regard to the documents paid in question and in particular the decision criticized on the merits;
Maître Vincent WELLENS, representing the company NAUTADUTILH
LAWYERS LUXEMBOURG S.AR.L., for the applicant, and the delegate of
government Sandro LARRUCIA heard in their respective pleadings at the hearing
of September 21, 2021.
___________________________________________________________________________
By letter from a Luxembourg banking institute dated May 19, 2020, Mr. X,
resident in France, considering himself to be an "accidental" American, that is to say as a
person with both French and American nationalities and having been assigned
automatically the American nationality of only births on the territory of the
United without having any other significant connection with this country, was informed that information
relating to his bank account with this financial institution would be transmitted to the authorities
Luxembourg tax authorities by June 30, 2020 at the latest, Luxembourg tax authorities who
would then exchange this data with the US tax authorities in accordance with the law
of July 24, 2015 approving the Agreement between the Government of the Grand Duchy of
1Luxembourg and the Government of the United States of America with a view to improving compliance with
international tax obligations and relating to United States provisions
of America regarding the exchange of information commonly referred to as the "Foreign
Account Tax Compliance Act ”(“ FATCA ”), for September 30, 2020.
The Y, a non-profit association under French law, and Mr. X addressed each other on
of December 22, 2020 through their lawyer at the Administration of Direct Contributions
to ask him to "erase the personal data of accidental Americans
French and Mr. X obtained under the FATCA Agreement, or even to limit their
treatment and, in any state of the cause, to immediately stop the exchange of information
between the ACD and the US tax authorities taking place each year on the basis of the Agreement and, for the year
2019, before December 31, 2020, in that this data transfer ignored several
key principles of the right to the protection of personal data, as applicable to the Great
Duchy of Luxembourg and, more generally, within the European Union ".
By decision of March 22, 2021, the Director of the Tax Administration
Direct rejected the predicted request as follows:
"By the present, I return to your letter under heading reached us on the 22
December 2020 conveying on behalf of the Y, the purpose of which is to defend and
represent the interests of people of Franco-American nationality who reside outside
United States, as well as from Mr. X several requests to exercise rights granted by the
General Data Protection Regulation (GDPR) to data subjects.
Your principal, the Y, has its head office in Paris and its purpose is to defend the interests
individuals of Franco-American nationality residing outside the United States, against
the harmful effects of the extraterritorial nature of US law. The Y is not at
consider as a data subject within the meaning of the GDPR, i.e. a person
identified or identifiable physical. Since the GDPR limits the circle of beneficiaries of
RGPD rights only to those concerned, I am not able to book a suite
favorable to your inquiries on behalf of the Y.
You also exercise GDPR rights on behalf of accidental Americans
French. However, since the only formulation "French accidental Americans" does not allow
to the Direct Tax Administration (ACD) to identify the persons concerned by
its own means in a precise manner and that you do not provide any information for their
identification certain, I inform you that pursuant to Article 12 (2) GDPR I regret
not to be able to give a favorable response to your requests concerning the Americans
French accidental.
Regarding the exercise of the right to erasure on behalf of Mr. X, please
informs that pursuant to Article 17 (3b) GDPR I cannot give a favorable response
since the processing of personal data of Mr. X is necessary for the
compliance with the amended law of 24 July 2015 relating to FATCA to which the person responsible for
processing is submitted.
Concerning the exercise of the right to limit processing for the account of Mr.
X, I inform you that the cited article 18 (1b) does not apply since the processing is
necessary for compliance with the amended law of July 24, 2015 relating to FATCA.
2 If desired, a complaint can be addressed to the supervisory authority:
National Commission for Data Protection 15, Boulevard du Jazz, L-4370
Belvaux.
Alternatively, a judicial appeal can be made. (…) "
By application filed on April 2, 2021 at the registry of the administrative court and enlisted under
No. 45851, Y and Mr. X brought an appeal for the annulment of the
aforementioned decision of March 22, 2021.
By request filed subsequently on August 31, 2021, registered under number 46416
of the role, Mr X again had a request made to have the
the administration of Direct Taxes to communicate to the US tax authorities
all information collected concerning him.
The applicant considers that the two conditions legally laid down by Article 11
of the amended law of June 21, 1999 on the rules of procedure before the courts
administrative procedures, hereinafter referred to as the “Law of 21 June 1999”, would be fulfilled in question.
In view of the existence of a risk of serious and definitive damage, the requesting party
affirms that although it could, if necessary, claim damages, this
circumstance would in no way preclude the existence of serious prejudice on his part.
In the present case, it considers that the serious nature of the damage cannot be in any doubt
while the refusal of the administration of Direct Contributions to refrain from communicating
its data to the US tax authorities would violate some of the most fundamental rights, namely the right
privacy and the protection of personal data, as guaranteed by the
Articles 7 of the Charter of Fundamental Rights of the European Union, Article 8 of the
Convention on Human Rights and Fundamental Freedoms and Article 11 (3) of the
Constitution. Mr X recalls in this regard that the Administrative Court would have, by reference
of the case law of the European Court of Human Rights and that of the Court of Justice
of the European Union, explicitly confirmed that the banking information relating to the
financial situation of a person fall within the concept of personal data without regard
the degree of sensitivity whether or not they should be recognized and that the data transmission
bank of customers by the State of the bank depositary of the account to the authorities
from another State, in this case the State of residence, in the context of an exchange of
information is to be qualified, at the latest at the time of actual transmission to the State of
residence, as an interference with the right to respect for private life which would only be justified
if it meets certain requirements.
However, he considers his own case to be akin to such a situation in that the
communication of his data to the US tax authorities would in all circumstances be disproportionate
and, moreover, would constitute an illicit data transfer.
He also affirms that the summary judge would proceed to a balancing of interests
in the context of an interim protective measure, his lawyer having spoken orally that a
request for a safeguard measure within the meaning of Article 12 of the amended law of June 21, 1999
laying down rules of procedure before administrative courts would not be subject
under the binding conditions of article 11 of the same law.
3 In this case, however, his interest in not having his data unduly communicated to
American authorities, in view of the risk that they are subject to undue manipulation, or even
data leaks, would be far superior to the interest of the administration of
Direct contributions, even to that of the American tax authorities, for the simple reason that in view of the
low value of the balance of the bank account, this data should not even have been reported.
Finally, he seizes on article 79 of Regulation (EU) 2016/679 of April 27, 2016
on the protection of individuals with regard to the processing of personal data
and to the free movement of data, and repealing Directive 95/46 / EC, hereinafter
"General Data Protection Regulation" or "GDPR", which provides for a right to a
effective legal remedy against a controller or processor. But if
a data subject cannot act in summary proceedings against a
decision of a data controller in the public sector, it would see its rights
fundamental and those arising from the GDPR clearly flouted (which would be avoided
in summary proceedings) and thus would not have an effective remedy.
Mr X still considers that his appeal on the merits would present serious chances of
success.
Thus, after having retraced the retroacts of the present case and explained the regime
FATCA as implemented in Luxembourg and its consequences for Americans called
"Accidental", the applicant states in substance, as summarized in his appeal in
annulment - it being emphasized that the request for the institution of a safeguard measure, in this
that it seeks an interim measure, relies directly and solely on the means
invoked on the merits - that the referred decision should be set aside while
the administration of Direct Contributions would not have responded to an explicit request
addressed, tending to stop the transfer of information between the administration
direct contributions and the US tax system based on the FATCA Agreement, so that
the administration of Direct Contributions would have violated its obligation to provide reasons arising from
of Article 6 of the Grand-Ducal Regulation of 8 June 1979 relating to the procedure to be followed by
state and municipal administrations.
He then pleads that the transfer of personal data from
the administration of direct contributions to the US tax authorities would violate several
provisions and key principles of the GDPR, what the administration of Direct Contributions
failed to take into account in its decision, so that the latter should have
respond favorably to requests addressed to him on December 22, 2020
In this context, Mr. X considers that the Tax Administration
direct, on the basis of the principles of lawfulness, transparency, minimization of
dataandresponsibility arising fromArticles5and24RGPstopping the transfer of data
in question, it being understood that the illegality of the transfer would result not only from the non-
compliance of the transfer with Articles 45 et seq. of the GDPR on data transfers
outside the EU / EEA but would also violate Articles 5 (b) (limitation
purposes), 5.1 (c) (data minimization), 5.1 (e) (limitation of retention), 6 (legality
processing), 12 (transparency), 14 (information obligation) and 35 (impact analysis) of
GDPR.
4 More specifically, it asserts that the transfer of personal data to the
US tax authorities under the FATCA Agreement would not be lawful under Articles 45, 46 and 49
GDPR; similarly, he believes that the administration of direct contributions cannot
be based on Article 96 of the GDPR according to which international agreements involving the
transfer of personal data to third countries which have been concluded by States
members before May 24, 2016, such as the FATCA Agreement, remain in force until their
modification, replacement or revocation, but only if they comply with the law
Community as applicable before that date. In this case, however, the directive
95/46 / EC on the protection of individuals with regard to data processing
of a personal nature and to the free movement of such data would have constituted Union law
European before May 24, 2016, including the provisions relating to international transfers
would be "almost identical to those of the GDPR", so that the administration of Contributions
therefore cannot be based on the basis of the "public interest" in
meaning of Article 26.1.d) of that directive.
It concludes that insofar as the law of July 24, 2015 approving
the Agreement between the Government of the Grand Duchy of Luxembourg and the Government of
United States of America to improve tax compliance nationwide
international and relating to the provisions of the United States of America concerning
information commonly referred to as the "Foreign Account Tax Compliance Act", would give
a legal basis for these illicit transfers, the administration of Direct Contributions should have
leave out of application.
However, since the administration of direct contributions should have left the FATCA law
apart from the application, it would be obvious that the administration of Direct Contributions could not
nor claim that data processing is "necessary for compliance with a
legal obligation to which the data controller is subject ”(art. 6.1.c) of the GDPR),
or even "for the performance of a mission of public interest or falling within the exercise of authority
public authority vested in the controller ”(art. 6.1.e) of the GDPR). In others
words, the data processing undertaken by the administration of Direct Contributions in
the context of the FATCA Law and the FATCA Agreement would have no basis for the legality of
processing and therefore violate Article 6 of the GDPR which requires precisely such a basis.
The applicant then concludes before the trial judges that the decision criticized
would violate the principles of purpose limitation, proportionality and minimization of
data.
Thus, the aims pursued by the FATCA Agreement would consist of improving
the observation of international tax rules and the implementation of obligations arising from
the US FATCA law aimed at combating tax evasion by US nationals.
However, the principle of limitation of purposes contained in Article 5.1 (b) GDPR would provide
that personal data should be collected for "specified purposes,
explicit and legitimate, and not be further processed in a manner incompatible with
these purposes ”. In this case, however, the purposes to which the FATCA Agreement fulfills do not
would not be determined and explicit and would not allow the persons concerned to
to correctly understand the processing of their data carried out on the basis of the latter.
The applicant still disputes the legitimacy of the aims pursued, since
the exchange of information would seem to benefit only the US tax authorities.
5 Finally, Mr. X considers that the FATCA Agreement, in that it would allow the transfer
systematic and large-scale personal data storage - name, address, number
account, account balance, etc. and not forgetting the US tax identification number
that "accidental" Americans should still get first - relating to very
many people with indices of Americanity (indices defined in a
extremely broad), would go against the principles of proportionality and minimization of
data.
The applicant then states that the decision referred would also violate the principle of
transparency, which would impose in accordance with Articles 12 to 14 GDPR on the person responsible for
processing, in this case the administration of direct contributions, but also the tax authorities
American for the processing carried out once the data has been received, to provide
data subjects a certain amount of information concerning the processing which is made of
their data, in particular the categories of data collected, how these are
used, who has access to them, the appropriate guarantees surrounding their transfer, their
conservation, information to be transmitted to the persons concerned in a manner
concise, transparent, understandable and easily accessible, in clear and simple terms,
which would not be the case in this case, none of this information being made available
by the administration of direct contributions to the taxpayers concerned through its
website or by any other means.
Finally, he criticizes the administration of Direct Contributions for not having made,
in accordance with Article 35.1 GDPR, a data protection impact assessment.
The government delegate maintains that none of the conditions required
for the imposition of an interim measure would not be met in this case.
Thus, after setting out the context of the FATCA agreement and the obligations in
arising for the administration of Direct Contributions, it essentially seizes
Article 96 GDPR, for, after noting that the applicant would expose almost all of his
argument based on the GDPR, argue that insofar as the FATCA agreement would be
prior to May 24, 2016, it would therefore be Union law applicable before that date which
would be applicable and not the post-FATCA GDPR. However, if the law of the Union
applicable before May 24, 2016 would be Directive 95/46 / EC, transposed into law
national by the law of 2 August 2002 on the protection of individuals with regard to
personal data, in relation to which the FATCA agreement should be
appreciated, the applicant does not however refer either to Directive 95/46 / EC or to the law of 2 August
2002.
The government delegate also contested any risk of serious prejudice and
definitive, noting in particular the absence of any risk of the applicant being taxed in the States
United of America; as to the risk of abusive or illegitimate use of the transferred data, it
notes that the applicant is only putting forward a purely hypothetical risk, not supported by
any proof.
Pursuant to article 11 of the amended law of 21 June 1999 regulating the
procedure before administrative courts, hereinafter referred to as "the June 21, 1999",
a stay of execution can only be ordered on the double condition that, on the one hand, the execution
of the contested decision risks causing the applicant serious and definitive damage and that,
6On the other hand, the grounds invoked in support of the appeal against the decision appear
as serious.
A safeguard measure, provided for in Article 12 of the Law of 21 June 1999, requires, under
penalty of emptying Article 11 of the same law, the same conditions relating to the
serious means and at the risk of serious and definitive damage.
The applicant nevertheless pleads that the conditions for claiming a
safeguard would not be the same as those for claiming a suspension of
execution, Mr X arguing more particularly that a request for
safeguard could not be subject to the double condition provided for in Article 11,
paragraph 2, on the same basis and with the same intensity as those with which this double
condition is required to found a request for suspension of execution of the contested decision
by recourse to the merits; to deduce that in the context of a request for a measurement of
safeguard the judge could proceed to a balancing of the interests in question.
However, this argument must be rejected.
Indeed, it should be remembered that under penalty of rendering Article 11 of
the law of June 21, 1999, which provides that the suspension of execution can only be decreed twice
provided that, on the one hand, the execution of the contested decision risks causing the applicant
serious and definitive damage and that, on the other hand, the means invoked in support of the directed remedy
against the decision appear to be serious, it must be admitted that the institution of a
safeguard measure is subject to the same conditions concerning the characteristics of the
damage and the means invoked in support of the appeal. To admit the contrary would be
effect to authorize the suspension of execution of an administrative decision even though the
conditions set by Article 11 would not be met, the wording of Article 12 not excluding
not, a priori, such a reprieve which can in turn be understood as a safeguard measure. 1
It should also be recalled that the possibility of granting a safeguard measure
was not established by the legislator as an autonomous measure, but only in order to
compensate for the fact that the only provisional measure initially provided for, namely the suspension of execution,
could not be granted in relation to a negative administrative decision, such as a
refusal, which does not modify a prior legal or factual situation and, as such, cannot
be the subject of conclusions at the end of a stay of execution, so that in such a case,
the litigant had no procedure to avoid serious damage caused to him
by a negative administrative decision. The possibility of a safeguard measure is understood
therefore as a complementary procedure to that of the suspensive effect, subject
necessarily under the same strict conditions. To admit the contrary would indeed amount to
authorize the suspension of execution of an administrative decision even though the conditions
posed by Article 11 would not be met, the wording of Article 12 not excluding, a priori,
such a reprieve which can in turn be understood as a safeguard measure. 5
1
2Trib. adm. (pres.) January 14, 2000, n ° 11735, Pas. adm. 2020, V ° Litigation procedure, n ° 553 and 722.
Proposal for law 4326 on the rules of procedure before administrative courts, opinion of the Council
of State, February 9, 1999, p.6.
3Ibidem.
4Trib. adm. (pres.) November 13, 2020, n ° 45149.
5Trib. adm. (pres.) January 14, 2000, n ° 11735, Pas. adm. 2020, V ° Litigation procedure, n ° 553 and 722; see
also trib. adm. (pres.) November 30, 2020, n ° 45220; trib. adm. (pres.) November 30, 2020, n ° 45222.
7 The applicant's argument, seeking to circumvent the conditions
planned for obtaining a stay of execution, while seeking under cover of a measure
of safeguard a suspension of the transfer of the disputed data, is therefore to be rejected.
The case on the merits having been brought on April 2, 2021 and taking into account the legal deadlines
of instruction set by the law of June 21, 1999, it cannot be considered as being able to
be pleaded at short notice.
Regarding the two other conditions, to know the possible existence of means
serious claims made before the trial judges and the existence of a risk of serious harm and
definitive in their own right, it should be remembered that these two conditions must be
cumulatively fulfilled, so that the failure of one of these conditions results in
only the failure of the request.
As noted above, the suspension of execution (respectively a
safeguard) can only be decreed when in particular (but not exclusively) the execution
of the contested decision risks causing the applicant serious and definitive prejudice,
damage being serious within the meaning of Article 11 of the Law of 21 June 1999 when it exceeds by its
nature or its importance the common inconveniences and sacrifices imposed by life in society and must
therefore be considered an intolerable violation of the equality of citizens before the
public charges.
Indeed, as the administrative act enjoys the privilege of prior and execution
ex officio, the reference for the purpose of preventing, temporarily, the occurrence of serious damage
and final, the effects of the suspension being to prohibit the perpetrator from continuing
the execution of the suspended decision.
In the present case, as appearing in the originating motion and developed in
the hearing, the applicant claims serious and definitive damage linked to the violation of his
fundamental rights, namely their right to respect for private life and the right to protection
personal data, in that once the information has been requested
communicated, no remedy would prevent the US authorities from using -
allegedly unlawfully - information received against him.
However, it should on the one hand be recalled that for the assessment of the finality of the
damage, there is no need to take into account the damage suffered during the application
of the illegal act and before its annulment or reform. To admit the contrary would amount to
question the principle of the immediate enforceability of acts
administrative, because before the intervention of the administrative judge, any illegal administrative act
in principle causes damage which, as a rule, can be repaired ex post by the allocation of
damages and interests. Only if the alleged illegality causes irreversible damage in
the meaning of a reparation in kind, for the future, or a restoration of the situation
previous, will not be possible, that the damage is final as provided by
Article 11 of the law of June 21, 1999.
6
Trib. adm. close. February 8, 2006, role no.20973, Pas. adm. 2020, V ° Litigation procedure, n ° 619.
8 On the other hand, a stay of execution, respectively a safeguard measure, does not
can only be ordered if the damage claimed by the applicant results from the execution
of the contested act, the legal condition not being met if the damage does not
7
not find its cause in the execution of the contested act, the risk denounced before indeed
arise from the implementation of the contested act and not from other acts unrelated to the appeal. 8
However, if the applicant seems to situate the serious and definitive damage as alleged in the
only collection of information by the Luxembourg tax authorities and their transmission
to the US tax authorities, excluding their processing for possible purposes
taxation by the latter, collection and transmission that would infringe the right of
requiring respect for his private life and data protection, such damage cannot
be considered, in the absence of any other clarification or special circumstance, as serious and
final.
First of all, it should be remembered that the sole invocation of an infringement of rights
fundamental is not sufficient to justify serious and definitive damage, such an infringement
yet, in the context of the analysis of the seriousness of the means invoked, take a
appearance of seriousness.
Secondly, it should be remembered that any infringement of such rights
regardless of any circumstance, is not prohibited, so that any infringement is not
automatically to be considered illegal.
Thus, Article 8 of the ECHR authorizes through its paragraph 2 under certain
conditions an interference of the tax administration in the a priori powerful right of the right to
respect for private life, the said article providing that: "There can be no interference by
public in the exercise of this right only insofar as this interference is provided for by law
and that it constitutes a measure which, in a democratic society, is necessary for the security
national, public safety, the economic well-being of the country, the defense of order and
the prevention of criminal offenses, the protection of health or morals, or the
protection of the rights and freedoms of others ".
The European Court of Human Rights has repeatedly accepted the legality of a
interference with private life and 9a proportionality with regard to the tax aim pursued by the
exchange of information: thus, more particularly, the European Court of Human Rights
Man admitted that the important economic interests at stake for a country so required
that the interest for this same country in being able to respect its international commitments resulting
of an administrative assistance agreement prevailed over the individual interests of people
concerned by the measure, and this in particular when the measure of transmission of information
concerns purely financial information, not intimate or related data
12
closely to the identity of the persons concerned who would have deserved increased protection and
when the persons concerned have benefited from procedural guarantees, in particular by having
7 See the case law cited under Pas. adm. 2020, V ° Litigation procedure, n ° 631
8
Ph. Coenraets, The litigation of the suspension before the Council of State, summaries of case law, 1998, no.
92, p.41.
10EDH, June 16, 2015, Othymia Investments BV v. The Netherlands, No.75292/10.
CEDH, December 22, 2015, G.S.B. vs. Switzerland, n ° 28601/11, pt 83.
11Although information relating to bank accounts is to be considered as personal data
protected by Article 8 ECHR.
12CEDH, December 22, 2015, G.S.B. vs. Switzerland, n ° 28601/11, pt 93.
9the possibility of lodging an appeal with the Administrative Court, a sine qua non
of legality of such interference, moreover underlined by the same European Court of Rights
of Man. 13
The Court of Justice of the European Union, for its part, recently recalled 14,
in particular in relation to Articles 7 and 8 of the Charter, enshrining the right to respect for life
private respectively the right to the protection of personal data, which no
these fundamental rights do not constitute an absolute prerogative, each of them having to, in
indeed, to be taken into consideration in relation to their function in society.
In this regard, it has retained that the objective of contributing to the fight against fraud and
international tax avoidance, by strengthening cooperation between national authorities
competent in this field "constitutes an objective of general interest recognized by the Union,
meaning of Article 52 (1) of the Charter, which may allow a limitation
be brought to the exercise of the rights guaranteed by Articles 7, 8 and 47 thereof, taken
individually or jointly ", this objective of combating tax fraud and tax evasion
internationality translating "in particular [...] by the establishment of an exchange procedure
information on request allowing the competent national authorities to cooperate
efficiently and quickly between them, in order to collect information within the framework
of investigations targeting a particular taxpayer ". 15
er
The undersigned further notes that Article 26, § 1 of Directive 95/46 / EC authorizes
under certain conditions the transfer "necessary or made legally obligatory for the
safeguarding an important public interest ". However," international exchanges of data between
tax administrations "are recognized as necessary to" safeguard an interest
important public ”in recital (58) of the directive.
It should then be noted that even to admit - thesis defended by the applicant -
illegitimate interference and therefore an unlawful violation of Article 7 of the Charter of Rights
fundamental principles of the European Union, Article 8 of the Convention on Human Rights and
fundamental freedoms and Article 11 (3) of the Constitution as invoked by the
applicant, such a situation would not ipso facto lead to serious and definitive damage to
His boss.
In this regard, it should be emphasized that if, with regard to the second condition,
knowing the existence of serious means, the provisional judge is called upon to refer to the means
invoked on the merits, even if these are not explicitly developed in the application for
obtaining an interim measure, it is different for the condition for the existence
a risk of serious and definitive damage, being an element specific and specific to the
summary proceedings, conditioning the office of the judge ruling on a provisional basis: proof of the seriousness of the damage
implies in principle that the applicant gives concrete indications concerning the nature
and the extent of the damage expected, and which demonstrate the difficult nature of the
prejudice, being noted that in order to guarantee the adversarial nature of the debates, the
13CEDH, July 7, 2015, M.N. and others v. San Marino, n ° 28005/12; see also ECHR, December 22, 2015,
G.S.B. vs. Switzerland, n ° 28601/11, pt 90: domestic legislation must provide appropriate guarantees to prevent
any communication or disclosure of personal data that does not comply with the requirements
of Article 8 ECHR.
14CJUE (gr. Ch.) October 6, 2020, aff. C 245/19 and C 246/19.
15 Along the same lines: CJEU 16 May 2017, Berlioz Investment Fund, aff. C-682/15.
Moreover, the provisional judge can only have regard to the arguments contained in the request
and must exclude the elements developed by the counsel of the requesting party, for the first
times, in court.
Moreover, it is not for the provisional judge to analyze on his own and his
on its own initiative, recourse to the merits to detect any elements likely to
constitute, in the context of the action for obtaining an interim measure, means relating to
the existence of serious and definitive damage, the office of the provisional judge not consisting of
find himself in another procedural document the means that could have been found
the basis of its conclusions, the provisional judge having regard only to the arguments
contained in the request and which must exclude the elements developed by the party's counsel
applicant, for the first time, at the hearing. 16
However, proof of the seriousness of the damage implies in principle that the applicant gives
specific indications concerning the nature and extent of the foreseen damage, and which
17
demonstrate that the damage is difficult to repair.
However, it must be noted that the applicant, apart from supporting in the abstract
the existence of serious and definitive damage resulting from the alleged violation of the provisions
and the standards mentioned above, do not specify the nature of the damage, the materiality of which escapes
to the undersigned.
Indeed, if the undersigned can conceivably conceive a risk of repercussions
negative tax results resulting from the communication of the disputed information to the authorities
tax, the applicant however in this case excludes its argument a such risk
material - the applicant having pleaded himself, in view of the small amount of sums he detained
with the Luxembourg banking institute the absence of any taxation in the United States -,
which, in any event, should in the current state of the matter be considered
hypothetical, if not as preventable if not repairable, when no element arises
communicated to the undersigned that the parties potentially affected by such an imposition
could not benefit in the United States from sufficient remedies. 18
Then with regard to a possible risk of immaterial damage, it is true that a
purely non-pecuniary damage would be conceivable, damage resulting from the perceived violation of
fundamental rights of the applicant. In this regard, it must still be noted that the doctrine
French, based on European and French case law, seems to admit, in
of unlawful infringement of fundamental rights, the existence of a presumption of prejudice
implying a right to reparation, the reparation depending on the nature of the right injured and the
the intensity of the attack.
16See trib. adm. (pres.) February 9, 2018, n ° 40722; trib. adm. (pres.) November 7, 2018, n ° 41907.
17Trib. adm. (pres.) July 10, 2013, n ° 32820, Pas. adm. 2020, V ° Litigation procedure, n ° 626.
18In this sense: trib. adm. (pres.) July 21, 2017, n ° 39887 and trib. adm. (pres.) July 21, 2017, n ° 39889.
19X. Dupré de Boulois, The presumption of prejudice: an element of the legal regime of fundamental rights,
http://www.revuedlf.com/droit-fondamentaux/droits-fondamentaux-et-presomption-de-prejudice/
11 With regard more particularly to compensation for breaches of privacy,
the repair - and therefore the assessment of its seriousness upstream - depends on the circumstances, either
aggravating, or lessening, the impairment: under an aggravation figure mainly
the public nature of the breach, that is to say the dissemination of data collected in violation of the
right to privacy and data protection.
However, in this regard, as opportunely underlined by the Government delegate, the
data collected and transmitted will be by tax authorities bound by confidentiality
of these same data: in this regard, it should be recalled that under the terms of Article 3 of the Law of
July 24, 2015 "(1) Processing of information to be communicated to the United States of America
or received from the United States of America is guaranteed for secure, limited access
and controlled. The information may only be used for the purposes provided for in the Agreement ",
while section 3.7. of the FATCA Agreement specifies that "All information exchanged shall be
subject to the confidentiality and other protections provided for in the Convention, including
the provisions limiting the use of the information exchanged ”.
It should also be noted that precisely in relation to the processing of data
resulting from the FATCA Agreement, the French Council of State 21 held that "taking into account the
the precautions to which it is attached, the treatment in question does not infringe the right to protection
of the personal data of the persons to whom it concerns nor does it relate to the law of these
disproportionate interference with the purposes for which
it was created.
It follows that the plea alleging ignorance, by the agreement of November 14, 2013,
of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union can only be
discarded ”.
As regards the incompatibility with Article 8 of the European Convention on
safeguard of human rights and fundamental freedoms, the same Council of State
French also held that the FATCA agreement "is not in any event incompatible with
the provisions of Article 8 of the European Convention for the Protection of Human Rights
and fundamental freedoms which guarantees the right to respect for private life or with those of
Council of Europe Convention 108 for the protection of individuals with regard to
automated processing of personal data of January 28, 1981, which makes
the authorization of the processing of personal data for the existence of a purpose
legitimate and to lawful and fair collection methods ”.
Also, in view of this confidentiality obligation and the absence of any disclosure
data collected from others than the Luxembourg and American tax authorities, the
the undersigned does not detect in the current state of the file and the elements submitted to it, beyond a possible
intangible and intangible moral damage and in any event neither quantified nor quantifiable, not
risk of serious harm.
20See F. Gras, Compensation for breaches of privacy, https://www.cairn.info/revue-legicom-1999-4-page-
21.htm
21CdE fr July 19, 2019, n ° 424216.
12 The undersigned cannot therefore accept, at this stage and in the current state of the file,
means contained therein as well as in view of all the foregoing elements, that the execution
of the decision referred risks causing the applicant serious and definitive damage within the meaning of
the law.
The applicant is therefore willing to reject his request for the institution of a measure
provisional, without there being any need to further examine the question of the possible existence of
serious means put forward before the trial judges, the related conditions having to be
cumulatively fulfilled, so that the failure of one of these conditions results in
only the failure of the request.
Completely superfluous, as regards the examination of this second
condition set out in article 11 of the law of June 21, 1999 to justify a provisional measure,
namely that the pleas presented by the applicant in support of its appeal on the merits
are sufficiently serious, it should be recalled that concerning the means invoked to
support of the appeal against the request, the judge called upon to assess its seriousness
cannot analyze and discuss them in depth, otherwise the principal will be prejudiced and
to find, wrongly, in the role of the trial judge. He must limit himself to a cursory examination
of the merits of the pleas presented, and grant the stay, respectively the safeguard measure
when it appears, in the state of the investigation, likely to lead to the cancellation or the
reform of the decision criticized, it being recalled that like the suspension of execution,
respectively the imposition of a safeguard measure must remain a procedure
exceptional, since they constitute a derogation from the privileges of the prior
and the ex officio execution of administrative decisions, the conditions allowing access to them
must be applied severely.
The requirement based on the seriousness of the pleas invoked calls for the administrative judge
to examine and assess, in view of the documents in the file and taking into account the stage of the investigation,
the chances of success of the appeal on the merits. For the condition to be met, the judge must
come to the conclusion that the appeal to the merits has a serious chance of success.
Thus, the summary judge is called on, on the one hand, to make an assessment of
at the moment in view of the elements submitted to it by the parties to the proceedings, this assessment
being subject to change subsequently depending on the investigation of the case and, on the other hand,
not to decide on the merits of the means, but to verify, after an analysis
necessarily summary of the grounds and arguments presented, if one of the grounds raised
by the applicant appears to be capable of justifying with sufficient probability
the annulment or reformation of the criticized decision, being reminded that as the stay
execution must remain an exceptional procedure, since it constitutes a derogation
brought to the privileges of prior and ex officio execution of administrative decisions,
the conditions allowing access must be strictly enforced.
The requirement based on the seriousness of the pleas invoked calls for the administrative judge
to examine and assess, in view of the documents in the file and taking into account the stage of the investigation,
the chances of success of the appeal on the merits. For the condition to be met, the judge must
come to the conclusion that the appeal to the merits has a serious chance of success. He
follows that, faced with a situation in which the serious characters of the means raised at the bottom appear
not as obvious on first reading, the interim judge cannot accept that the
means in question are sufficiently serious to justify an interim measure: in
13 In other words, the means must offer a sufficient appearance of right or a degree of 22
plausibility such that one can harbor significant doubts as to the legality of the act.
The interim judge will therefore assess whether a means is suitable to create, in the state of
the instruction, a serious doubt about the legality of the litigious decision, and this with regard to its office.
It will therefore take into account the legal situation, taking into account the evidence and without deciding
questions of law that have not yet been. Obviousness is commonly defined as
"Quality of that which wins the immediate assent of the mind by imposing itself on it in a
23
clear and distinct ”. It is characterized by its immediacy, by what it does not require
no demonstration or prior reasoning to be regarded as true: 24
evidence is therefore a quality with which the fact or reasoning is adorned which, bearing in it
revelation of its existence or its merits, constitutes proof of itself and exempts others
25
proof or other demonstration.
The interim judge can therefore in no case draw lessons and even less from
final conclusions when analyzing the condition of seriousness because it will not have to
only carry out a "first examination" without anticipating the assessment, the
control to be carried out by the trial judge. This examination is intended to be summary and based on the only
elements in the possession of this judge or which can be brought to him during the hearing. He must,
somehow, only to refer to his intuition from reading the file, everything
keeping in mind that the trial judge can always revisit the measure pronounced in
carrying out an in-depth control of the file.
Thus, a means is serious when it suggests, according to an analysis
summary, a probable reform or cancellation: a serious means suggests a
annulment or reform, while the examination of the seriousness of such a plea is
characterized by its prima facie character.
This seriousness may result from a situation of fact or of manifest law (a
important material element was ignored, a legal provision was clearly not
applied) or at least firmly established case law; the character
seriousness therefore also depends fundamentally on the quality of the demonstration of
rights threatened: the simple fact of transcribing the argument developed before the judges of the
to refer to them, respectively, may, in the face of complex matters or questions, turn out to be
from this point of view insufficient.
This is why the provisional judge must take into consideration the solutions
well-established case law, given that when such solutions exist, the outcome of the
litigation - whether in the sense of the success of the appeal or its failure - is no longer affected by a
hazard.
On the other hand, does not present a serious sufficient character, a plea raising a
simple doubt as to the outcome of the appeal, a plea based on fluctuating case law or
minority or when there is no case law that would allow an easy response to the
22Trib. adm (pres.) April 14, 2016, n ° 37733, Pas. adm. 2020, V ° Litigation procedure, n ° 592, and the others
references cited therein.
23Treasure of the French language.
24Le Littré thus defines it as "a notion so perfect of a truth that it does not need any other proof".
25G. Cornu, Legal vocabulary, PUF, 8th ed., 2000.
14questions to be decided in the present case by the judgment to be rendered subsequently on the merits,
especially when it comes to unprecedented questions of principle that cannot be decided, for the
first time, by the summary judge, but require an in-depth examination in the context of
the main procedure: the summary judgment is really the judgment judgment because it is confined
to a position, on this problem, of an archivist contenting himself with taking over a
26
position taken by another jurisdiction.
If the solution of the problem leads the interim judge to a legal assessment
motivated which separates the thesis of one from that of the other, it exceeds its powers in the
to the extent that he is obliged to discuss legally to rule out one of these theses which is therefore
necessarily serious. When the summary judge, to reject a dispute, is obliged to
build a legal reasoning that would not deny a trial judge, it goes beyond its
powers .7
It is still particularly advisable to underline that as a request for obtaining
an interim measure is based directly and solely on the grounds invoked on the merits,
the judgment adjudicating to the provisional is only called to assess the seriousness of the means invoked
basically: he is therefore only called upon to assess the seriousness of the means produced before the judge
on the merits, that is to say the means appearing at this stage in the request to institute proceedings
enlisted before the judge on the merits, the provisional judge more particularly not being able to hold
account of resources that could appear after its referral in future and
hypothetical ampliative memories.
As regards the applicant's first plea, alleging in substance a lack of
statement of reasons for the decision referred and a consequent violation of Article 6 of the Rules
Grand-Ducal of 8 June 1979 relating to the procedure to be followed by the administrations under
State and municipalities, it should be noted that the trial judges admit the possibility of
the administrative authority having taken a decision to produce or complete the reasons
subsequently and even for the first time before the administrative judge, case law
still seeming to consider as an adequate sanction for a possible lack of motivation the
suspension of appeal deadlines, or even the award of procedural compensation.
Indeed, if Article 6 of the Grand-Ducal Regulation of June 8, 1979, as invoked by the
applicant, certainly imposes for certain decisions an obligation of formal motivation, in
meaning that administrative decisions, especially when they are refused, must store
on legal grounds and formally indicate the said grounds by the at least summary statement
from the legal cause which is their basis and from the factual circumstances at their base, it follows
however, a solidly established case law, based on a judgment of the Administrative Court
of 20 October 2009, n ° 25783C of the roll, that the trial judges refuse to sanction a
violation by the administration of its obligation to state reasons by cancellation, on the grounds that the
sanction of cancellation would be "disproportionate to the aim pursued consisting of
put the citizen as soon as possible in a position to assess the reality and the relevance of the
motivation on the basis of an administrative decision ", the supreme court having accepted" by
26J. Piasecki, The office of the administrative judge in summary proceedings: Between changes and continuity in case law. Law,
University of South Toulon Var, 2008, n ° 337, p.197.
27Y. Strickler, The judge of summary proceedings, judge of the provisional, thesis, Strasbourg, 1993, p. 96 and 97.
28See specifically trib. adm. January 14, 2008, n ° 22756, in relation to a problem similar to that
under analysis.
15 concern to protect the well-understood interests of the litigant "that it would rather belong to the judge
of the legality, ruling on cancellation, to allow the administration to produce
or to complete the patterns later and even for the first time during the phase
litigation, the judge of legality, ruling as in the present case on an appeal against
an administrative decision made in violation of the law and the forms intended to protect
private interests, having in effect at their disposal "a more adequate sanction
legislation subsequent to the legislation on non-contentious administrative procedure,
namely the law of June 21, 1999 on the rules of procedure before the courts
administrative, taken in Articles 32 and 33 allowing administrative courts to
condemn by reasoned decision a party who won his case to one offense or all
costs or to charge this party with all or part of the sums exposed
by the other party and not included in the costs, including more particularly the costs
lawyer, in the event that it seems unfair to leave these costs to be borne by this other
part ".
It follows therefore that the possible formal insufficiency of the reasons for the decision
referred, does not appear, in view of the case-law cited above and this provisional finding and
29
summary, must result in the referral of the deferred decision being annulled by the judges.
It then appeared, as raised by the government delegate, that Mr. X based
almost all of his arguments in his action for annulment, if not in reformation on
basis of the GDPR, namely, as a reminder, Regulation (EU) 2016/679 of April 27, 2016 relating to
protection of individuals with regard to the processing of personal data
and the free movement of data, and repealing Directive 95/46 / EC, which is,
in accordance with its article 99 (2), “applicable from 25 May 2018”.
It also follows from Article 96 GDPR that "International agreements involving the
transfer of personal data to third countries or to organizations
international which was concluded by the Member States before May 24, 2016 and which respects
the law of the Union as it is applicable before this date remain in force until their
modification, replacement or revocation ”. It follows clearly from these provisions
that the authors of the regulation fully determined the conditions of the relationship between the
European Union law and agreements previously concluded upon signature which imply
30
the transfer of personal data to third countries.
Finally, it is indisputable that the FATCA Agreement, as approved by law
Luxembourg, is prior to this date, the national law of approval dating from July 24
2015 and the FATCA Agreement dated March 24, 2014.
It therefore appears, at first sight, that, as supported by the Government delegate,
that the community standards supposed to calibrate the legality of the FATCA Agreement would be
those in force on May 24, 2016, which a priori excludes the GDPR, but rather targets the directive
95/46 / EC on the protection of individuals with regard to data processing
of a personal nature and to the free movement of such data, a finding explicitly admitted by
the applicant in his appeal on the merits, directive transposed into national law by the law of 2 August
29See in particular trib.adm. (pres) January 8, 2021, n ° 45349
30
CoE fr July 19, 2019, n ° 424216.
162002 on the protection of individuals with regard to the processing of personal data
staff.
If, as stated by the applicant, the provisions of the directive in question and of the
law of 2 August 2002 possibly overlap widely with the principles, or even with the
provisions of the GDPR as invoked in support of its appeal, it should be noted that it
is not for the undersigned, judge of the obvious and the manifesto, to proceed on his own
initiative to a legal investigation of the case by carrying out a confrontation and
comparison of the two Community texts and requiring, if necessary, to reformulate the
legal means of the applicant in order to bring them into line with Directive 95/46 / EC, the judge
the provisional not being competent to carry out an in-depth analysis for the sole purpose of
understand the purpose and reasoning of the request, being furthermore underlined that such
adapted arguments are not, at least for the time being, not worded in the substantive case,
it being recalled that the magistrate called upon to take a provisional measure cannot have regard to the
level of analysis of the seriousness of the means presented to the only means presented by the
applicant in question in the main proceedings on the day when the provisional judge is called to
rule.
The undersigned cannot at this stage take into account the objection of the applicant's lawyer
according to which the administration of direct contributions would have first, within the framework of the
decision referred, applies the GDPR and that the applicant would not have done, in the context of
his legal action, that to defend oneself in relation to this motivation, so that
the administration of direct contributions would be somewhat "unfair" to support
currently the non-application of the GDPR and reproach it for not having taken a position by
report to Directive 95/46 / EC and to the law of 2 August 2002.
It is in fact admitted by case law that the administration can, in general,
complete the motivation on the basis of an administrative decision during the proceedings
contentious, subject to the right of the applicant to be able to take a useful position
through a possible reply brief. Indeed, beyond the express motivation
provided by the administration on the basis of the decisions referred, it is free to supplement it
outstanding proceedings, any court of the court has the possibility of proceeding with its substitution
legal reasons based on the elements of the file regularly produced in question, resulting in
on the other hand that the plaintiff is allowed to expand its current means
of instance 31 beyond the developments made in the context of the introductory motion
instance.
However, the undersigned notes first that the applicant, in his initial request addressed
dated December 22, 2020 jointly with the Y at the Administration des Contributions
direct, limited the scope of its arguments to the GDPR alone; if then the director of
the administration of direct contributions has - very briefly - taken a position on the 22
March 2021 in relation to two specific requests from applicants based on the same GDPR,
it must be noted that the applicant, after having been confronted with the memorandum in response to
the State of June 30, 2021, filed an appeal on July 12, 2021 in which he
corrected its argument by basing it also on Directive 95/46 / EC; he has not
however, to date not rectified its argumentation at the contentious level, no memory in
reply not having been produced on the day this case was taken under advisement.
31 See in particular the case-law cited under Pas.adm.2020, V ° Litigation, n ° 838.
17 The fact that the applicant did not make use of the case-law possibility offered to him
to rectify, in response to the new state argument, his own argument, not
could establish ipso facto the fact that the State, for its part, has rectified its own argument in
the meaning of good cooperation with Justice and adequate insight into it, the service
public of justice including in particular that the judge can say the law, in attitude
unfair, the applicant having to bear alone the consequences of his own choices
procedural, without being able to require a distortion of the summary procedure consisting in allowing this
litigation an evolution untied from its evolution before the trial judges.
It also follows that from this point of view and at the current stage of investigation of the case, the
the applicant's pleas, based essentially on violations of the GDPR alone, do not present
not the necessary seriousness.
Mr. X must therefore be rejected for his request for a measure
provisional, none of the conditions that must be cumulatively fulfilled having been given in
the species.
The request for an allowance for procedural compensation in the amount of ... euros such
that requested by the applicant leaves to be founded, the related legal conditions not being
fulfilled in question.
For these reasons,
the undersigned, president of the administrative tribunal, ruling contradictorily and in
public audience ;
rejects the request for interim relief;
further rejects the request for an award of procedural compensation;
orders the applicant to pay the costs and expenses.
Judged and delivered at the public hearing on September 24, 2021 by Marc Sünnen,
President of the Administrative Court, in the presence of the Chief Registrar Xavier Drebenstedt.
s. Xavier Drebenstedt s. Marc Sünnen
Reproduction certified as true to the original
Luxembourg, September 24, 2021
The clerk of the administrative court
18
