EHRM, 08-01-2026, nr. 40607/19, nr. 34583/20

The Court notes at the outset that under Article 51 § 2 (7) of Decree no. 633/1972 (see paragraph 7 above) and Article 32 § 1 (7) of Decree no. 600/1973 (see paragraph 9 above) access to a taxpayer's banking data can be authorised for the purpose of performing tax office functions which, as defined in Article 51 § 1 of Decree no. 633/1972 (see paragraph 7 above), relate to verifying compliance with taxpayers' tax obligations.

In the Court's view, the conditions indicated in the above legislative provisions, taken alone, are insufficient to delimit the scope of discretion conferred on the domestic authorities. In particular, mere reference to the need to assess taxpayers' compliance with their tax obligations confers an unfettered discretion on the tax offices, as they have unregulated authority to assess whether to implement the contested measures and to define the scope of the information to be requested, which, by definition, is very wide (see paragraph 65 above).

However, reiterating that the concept of ‘law’, within the meaning of the Convention, includes enactments of lower rank than statutes (see paragraph 70 above), the Court finds that in the field of taxation, the conditions laid down in the applicable legislative provisions may be wider and generic, provided that they are subsequently specified and clarified in other instruments of lower rank or in the relevant domestic case-law.

In this context, the Court notes that some additional criteria were established in the administrative circulars adopted and published by the Tax Authority (see paragraph 14 above) and submitted by the Government.

In particular, Circular no. 131/1994 stated that tax audits of banking data could be undertaken in respect of certain taxpayers: total or near-total tax evaders, persons with no accounting records or with accounting records that were obviously unreliable, persons carrying out import-export transactions, persons who had issued and/or used invoices for non-existent transactions, and persons whose financial capacity was clearly in stark contrast to their declared income (see paragraph 16 above). It also clarified that a request for authorisation to implement the contested measures should be reasoned, in order to provide the authorising body with useful elements of evaluation (see paragraph 17 above) to allow it to check the formal and substantive legality of the request (see paragraph 18 above). Moreover, the same circular stated that tax audits of banking data could be carried out only when other means of assessing compliance with tax obligations had proved ineffective, and on the basis of a cost-benefit analysis (see paragraph 19 above).

Furthermore, Circular no. 25/E/2014 established that tax audits of banking data should be carried out only where there were significant discrepancies in a tax declaration (significative anomalie dichiarative), and ideally when a tax office had already instituted a tax inquiry (see paragraph 23 above), while Circular no. 16/2016 added that the use of such audits should be ‘appropriate’ and ‘aimed at obtaining credible and reliable assessments’ (see paragraph 25 above).

The Court is prepared to accept that the clear and detailed criteria laid down in the circulars adopted and published by the Tax Authority might be sufficient to complement the applicable domestic provisions and delimit the scope of discretion conferred on the domestic authorities, provided that they are binding on the authorities.

However, this does not appear to be the case. In particular, the Court cannot but note that in the light of the Court of Cassation's case-law, authorisation does not have to contain reasoning (see paragraph 27 above). It follows that the authorities are not required to justify the exercise of their powers by giving reasons for their decisions and thereby showing that they are following the criteria laid down in the relevant domestic provisions, including the administrative circulars, resulting in them exercising unfettered discretion (see Bernh Larsen Holding AS and Others, cited above, § 130).

In the light of the above, the Court considers that the legal basis for the contested measures was incapable of sufficiently delimiting the scope of discretion conferred on the domestic authorities, and accordingly did not meet the ‘quality-of-law’ requirement under Article 8 of the Convention.

The Court must now assess whether domestic law provided for sufficient procedural safeguards capable of protecting the applicants against any abuse or arbitrariness.

The applicants complained that the Tax Authority had not informed them of the requests to obtain banking data directly from banking institutions. In this regard, the Court reiterates its finding that Article 8 cannot be interpreted as giving all persons who are potentially implicated in such matters, including the interested taxpayer, a right to prior notice of lawful tax audits or exchanges of tax-related information (see Othymia Investments B.V. v. the Netherlands (dec.), no. 75292/10, § 44, 16 June 2015). Nor may such a right be inferred from European Union law as interpreted by the CJEU, in circumstances in which it may be applicable in situations that have a cross-border nature or where mutual assistance between authorities is requested (see paragraphs 41–42 above).

As regards the applicants' complaint that the contested measures had not been subjected to ex ante judicial or independent scrutiny, the Court notes that in the instant case, under domestic law, prior judicial authorisation was not required. In particular, the domestic legal framework required that the measures be authorised by the central director of assessment of the Tax Authority or its regional director, or by the regional head of the Revenue Police (see paragraphs 7 and 9 above).

The Court finds that considerations of efficiency in the field of taxation (see Bernh Larsen Holding AS and Others, cited above, § 130) and the need to not jeopardise the purpose of the contested measures (see Italgomme Pneumatici S.r.l. and Others, cited above, § 122) might justify the lack of ex ante judicial or independent review. However, in this context, the Court must assess whether there were other effective and adequate safeguards against abuse and arbitrariness, notably a subsequent independent or judicial review (see paragraphs 73–74 above).

In particular, and taking into account the applicants' complaints, the Court must assess whether the contested measures were subjected to an ex post judicial or independent review. It will therefore examine whether the remedies relied on by the Government — a complaint to the tax courts, a complaint to the civil courts, and a complaint to the Taxpayer's Guarantor — complied with the requirements imposed under the Convention.

As regards a complaint to the tax courts, the Court notes that under Article 19 § 2 of Decree no. 546/1992 (see paragraph 11 above), authorisation to access a taxpayer's banking data is not an act that can be challenged independently before the tax courts. As clarified in the domestic case-law, such authorisation cannot be challenged independently before the tax courts because it is considered to be a mere preparatory act (see paragraph 26–27 above).

The Court takes note of the case-law submitted by the Government, according to which where the measures at issue in the present case lead to a tax assessment notice, the taxpayer in question is allowed to challenge the authorisation to consult his or her bank account before the tax courts. In particular, as such authorisation is considered to be a preparatory act whose unlawfulness affects the validity of the tax assessment notice, the taxpayer is allowed to raise his or her complaints against the act authorising the consultation of his or her bank data by challenging the tax assessment notice under Article 19 § 2 of Decree no. 546/1992 (see paragraph 29 above).

Having carefully examined the material submitted to it, the Court is not persuaded by the Government's argument that this would amount to an effective ex post judicial remedy within the meaning of its case-law (see Italgomme Pneumatici S.r.l. and Others, cited above, § 126, which concerns a different context — access to and inspection of business premises).

Firstly, the domestic case-law clarified that an act authorising the contested measures did not have to contain reasons (see paragraph 27 above), and that the validity of a tax assessment notice could not be affected by an irregularity (see paragraph 30 above) or even by a lack of authorisation (see paragraph 31 above). In addition, the Government did not provide any case- law examples where such a remedy — challenging authorisation — had been used successfully. Taking these factors into account, the Court does not see how authorisation could be found to affect the lawfulness of a tax assessment notice.

Secondly, the Government observed that the availability of such a remedy would depend on whether the measures in question had led to the issuance of a tax assessment notice which was challenged by the taxpayer, and whether that notice was based on evidence obtained by consulting a bank account. Therefore, the Court finds that the existence of and accessibility to such a remedy is uncertain and may only exist at some point in the future (see Société Canal Plus and Others v. France, no. 29408/08, § 40, 21 December 2010).

Lastly, under Article 57 of Decree no. 633/1972 (see paragraph 8 above) and Article 43 of Decree no. 600/1973 (see paragraph 10 above), a tax assessment notice can be issued several years after the filing of a tax return or the moment when a tax return should have been filed. In this regard, the Court reiterates that an effective remedy must become available within a reasonable period of time (see, mutatis mutandis, Compagnie des gaz de pétrole Primagaz v. France, no. 29613/08, § 28, 21 December 2010, and Société Canal Plus and Others, cited above, § 40), and considers that a remedy which would (possibly) become available after several years cannot be considered to be sufficiently prompt (see Italgomme Pneumatici S.r.l. and Others, cited above, § 129).

The above is sufficient to conclude that a complaint to the tax courts would not amount to an effective ex post judicial remedy. There is therefore no need for the Court to examine whether the domestic legal framework provided for appropriate and sufficient redress in the event of a finding of an irregularity. In any case, the Court reiterates that the question of whether redress is appropriate and sufficient has generally been considered to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see, in a different context, Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010, and Contrada v. Italy (no. 4), no. 2507/19, §§ 55 and 62–65, 23 May 2024).

As regards a complaint to the civil courts, the Court notes that the Government mentioned such a remedy without referring to any case-law example where its availability and accessibility had been envisaged by the Court of Cassation, or where it had been used successfully before the lower courts.

In this regard, the Court reiterates that only remedies which are likely to provide redress for an applicant's complaints need to be taken into account. In particular, the existence of such remedies must be sufficiently certain, not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. Furthermore, it falls to the respondent State to establish that these conditions are satisfied (see Janosevic v. Sweden (dec.), no. 34619/97, 26 September 2000).

In the present case, notwithstanding the applicants' objection regarding the effectiveness of such a remedy, the Government failed to show, with reference to demonstrably established consistent case-law in cases similar to those of the applicants, that the remedy was sufficiently certain not only in theory but also in practice, and offered at least some prospects of success (see Mikolajova v. Slovakia, no. 4479/03, § 34, 18 January 2011, and Brazzi v. Italy, no. 57278/11, § 49, 27 September 2018).

In any event, even assuming that the remedy of a complaint to the civil courts did exist in practice, in the present case, where the applicable domestic provisions did not require that there be any reasons given for the contested measures prior to such measures being implemented, the Court does not see what kind of scrutiny those courts would have been able to ensure.

In the light of the above, the Court concludes that the Government have failed to demonstrate the existence in practice of the remedy in question, and that in any case, such a remedy would not have been effective within the meaning of Article 8 of the Convention.

As regards a complaint to the Taxpayer's Guarantor under section 13 of Law no. 212/2000 (see paragraph 12 above), the Court notes that as stated in judgment no. 25212 of 24 August 2022 of the Court of Cassation (see paragraph 32 above), that authority does not issue binding decisions, but merely makes recommendations to the tax authorities.

The Court reiterates that the powers and procedural guarantees an authority possesses are relevant in determining whether a remedy is effective (see Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, § 620, 13 April 2017, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 149, ECHR 2014). Therefore, it is imperative that the remedy should be before a body which, while not necessarily judicial, is independent of the executive and ensures the fairness of the proceedings, offering, in so far as possible, an adversarial process. The decisions of such an authority shall be reasoned and legally binding (see, mutatis mutandis, Centrum för rättvisa v. Sweden [GC], no. 35252/08, § 273, 25 May 2021; Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, § 359, 25 May 2021; and Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 120, ECHR 2006-VII).

Therefore, the Court finds that a complaint to the Taxpayer's Guarantor — a body which merely supervises the activity of the tax authorities and cannot issue binding decisions — would not constitute an effective remedy for the purpose of the guarantees against arbitrariness demanded by Article 8 of the Convention.