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The Taxpayer’s Dilemma: Navigating Mandatory Disclosure under DAC6 Between Compliance and Criminal Liability. Rethinking Nemo Tenetur in the Context of EU Exchange of Information

Ionescu, Larisa-Catalina LU (2025) HARN60 20251
Department of Business Law
Abstract
The rule of law is a cornerstone of modern constitutional democracies, not merely as
a safeguard against tyranny and arbitrariness, but as a principle inherently connected
to human rights, legal certainty, and democratic accountability. Within the European
Union, recent years have witnessed growing tensions between the expansion of
regulatory frameworks and the preservation of individual guarantees traditionally
protected under the rule of law. This paper explores this tension by focusing on
Directive 2018/822 (DAC6), a legal instrument aimed at enhancing tax transparency
through mandatory disclosure obligations for certain cross-border arrangements.
In the wider context of international and European efforts to combat tax... (More)
The rule of law is a cornerstone of modern constitutional democracies, not merely as
a safeguard against tyranny and arbitrariness, but as a principle inherently connected
to human rights, legal certainty, and democratic accountability. Within the European
Union, recent years have witnessed growing tensions between the expansion of
regulatory frameworks and the preservation of individual guarantees traditionally
protected under the rule of law. This paper explores this tension by focusing on
Directive 2018/822 (DAC6), a legal instrument aimed at enhancing tax transparency
through mandatory disclosure obligations for certain cross-border arrangements.
In the wider context of international and European efforts to combat tax avoidance,
DAC6 introduces far-reaching reporting duties for both intermediaries and
taxpayers. However, these obligations may come into conflict with the right to
remain silent and the broader nemo tenetur se detegere principle—particularly when
failure to report a transaction triggers administrative penalties that qualify as criminal
in nature, pursuant to the Engel criteria established by the European Court of Human
Rights.
The central legal question examined in this paper is whether DAC6 should provide
for an exemption based on the right against self-incrimination. Through an analysis
of the CFR, the ECHR, and the jurisprudence of both the CJEU and ECtHR, the
paper considers whether the current legal framework adequately balances the
legitimate objectives of tax enforcement with the fundamental rights of the taxpayer.
Ultimately, it argues that the rule of law, as a compound principle embracing legality,
legal certainty, and the protection of rights, requires a clearer normative framework
within DAC6 to ensure that enhanced transparency does not come at the cost of
eroding essential procedural guarantees. (Less)
Please use this url to cite or link to this publication:
author
Ionescu, Larisa-Catalina LU
supervisor
organization
course
HARN60 20251
year
type
H1 - Master's Degree (One Year)
subject
keywords
rule of law, DAC6, nemo tenetur, taxpayer rights, self-incrimination, tax transparency, fundamental rights, EU law.
language
English
id
9193041
date added to LUP
2025-06-05 10:42:10
date last changed
2025-06-05 10:42:10
@misc{9193041,
  abstract     = {{The rule of law is a cornerstone of modern constitutional democracies, not merely as
a safeguard against tyranny and arbitrariness, but as a principle inherently connected
to human rights, legal certainty, and democratic accountability. Within the European
Union, recent years have witnessed growing tensions between the expansion of
regulatory frameworks and the preservation of individual guarantees traditionally
protected under the rule of law. This paper explores this tension by focusing on
Directive 2018/822 (DAC6), a legal instrument aimed at enhancing tax transparency
through mandatory disclosure obligations for certain cross-border arrangements.
In the wider context of international and European efforts to combat tax avoidance,
DAC6 introduces far-reaching reporting duties for both intermediaries and
taxpayers. However, these obligations may come into conflict with the right to
remain silent and the broader nemo tenetur se detegere principle—particularly when
failure to report a transaction triggers administrative penalties that qualify as criminal
in nature, pursuant to the Engel criteria established by the European Court of Human
Rights.
The central legal question examined in this paper is whether DAC6 should provide
for an exemption based on the right against self-incrimination. Through an analysis
of the CFR, the ECHR, and the jurisprudence of both the CJEU and ECtHR, the
paper considers whether the current legal framework adequately balances the
legitimate objectives of tax enforcement with the fundamental rights of the taxpayer.
Ultimately, it argues that the rule of law, as a compound principle embracing legality,
legal certainty, and the protection of rights, requires a clearer normative framework
within DAC6 to ensure that enhanced transparency does not come at the cost of
eroding essential procedural guarantees.}},
  author       = {{Ionescu, Larisa-Catalina}},
  language     = {{eng}},
  note         = {{Student Paper}},
  title        = {{The Taxpayer’s Dilemma: Navigating Mandatory Disclosure under DAC6 Between Compliance and Criminal Liability. Rethinking Nemo Tenetur in the Context of EU Exchange of Information}},
  year         = {{2025}},
}