Tag: Law

Winding-up vs Striking-off

Posted on | by Paschalis Paschali

Under the current legal framework, there are various ways by which a company may cease to exist: voluntary winding-up, compulsory winding-up, winding-up under court supervision, striking off. The process and consequences of each of these methods are briefly analysed below. 

Voluntary winding up by members

A voluntary winding up procedure is initiated by the Company’s members and presupposes that the Company is capable of paying all its debts within a period of 12 months from the commencement of winding up. For this purpose, a Declaration of Solvency is prepared by the Directors confirming the above, which is essentially a statement in the form of an affidavit, signed by the majority of the Directors before the court registrar, accompanied by a statement evidencing the Company’s assets and liabilities. In view of this, the auditors of the company need to prepare up-to-date financial statements. The Declaration of Solvency must be made within 5 weeks immediately preceding the passing of the resolution for winding up and be delivered to the Registrar of Companies (“RoC”) for registration before that date.

A voluntary winding up is deemed to commence at the time of passing of a resolution by the members for the company’s winding up. The members also appoint the liquidator, whose appointment is advertised in the Official Gazette within 14 days and relevant forms are filed with the RoC. Upon the appointment of the liquidator, the directors’ powers cease to exist and the liquidator proceeds with liquidation of the company’s assets, repayment/settlement of the company’s financial obligations including tax liabilities and payment of any dividends/surplus to the company’s members. The liquidator presents a statement of the actions performed during liquidation at the final general meeting, notice for which is published in the Official Gazette at least 1 month before the date of the meeting. Within a week following the final meeting, the liquidator files copy of the reports and accounts with the RoC. The company is deemed dissolved after 3 months from such filing.

Voluntary winding up by creditors

If at any stage during a voluntary liquidation by members it appears that the company is unable to pay its debts, then a voluntary liquidation by members is by operation of law transformed to a voluntary liquidation by creditors. Under such circumstances, the company convenes a creditors’ meeting in which a liquidator is nominated for the purposes of winding up the affairs of the company and distributing its assets. If there is a disagreement between the liquidator proposed by the creditors and that of the members, the proposal made by the creditors prevails. Furthermore, in the event that creditors deem appropriate, they may decide to appoint an Inspection Committee consisting of up to 5 persons. Apart from the involvement of creditors, and the liquidator’s duty to convene creditors’ meetings to present an account of the winding up process, the process otherwise resembles voluntary winding up by members. Within a week following the final meeting, the liquidator files copy of the reports and accounts with the RoC. The company is deemed dissolved after 3 months from such filing.

Winding up with the Supervision of Court

At any time after a resolution authorising the voluntary winding up has been passed by the Company, and upon the application of the company’s creditors, contributors or any other person, the Court may issue an order allowing the continuance of the winding up under Court’s Supervision. The court may also order the appointment of an additional liquidator, who may exercise all his powers without the sanction or intervention of the Court, subject to any restrictions imposed by the Court in the same manner as if the company were being wound voluntarily.

Compulsory winding-up

A compulsory winding-up may be ordered by the Court upon filing of a relevant petition by the Company, any creditor, or contributor, on the following grounds:

  • The company has passed a special resolution for winding up by the court;
  • The company has omitted to complete its statutory obligations and/or commitments;
  • The company has not commenced operations within one year from its incorporation or its business has been halted for a whole year;
  • In case of a public company, the number of members is reduced below seven;
  • The company is unable to pay its debts;
  • If in the opinion of the court, it is just and equitable that the company be wound up.

A compulsory winding up is deemed to have commenced at the time of filing of the petition for the winding up (or passing of the special resolution, if applicable).

Upon issuance of a winding-up court order, a copy of the said order, must be delivered to the RoC within 3 working days. The RoC thereafter proceeds with the registration of the order and its publication on the official website of the Registrar of Companies and Official Receiver.

Strike-off

An alternative way for a company to be dissolved, is by the way of its striking-off from the Register of Companies. This is typically a simpler and faster process than liquidation and it may be voluntary or involuntary.

This route is available for non-active or non-operating companies (dormant companies) and/or companies the businesses and/or operations of which have ceased and which have no longer any assets or liabilities and do not intend to carry on any business in the future. Furthermore, companies which have failed to pay annual government fees and/or make statutory filings may be struck off the register by the RoC after the expiration of three (3) months from relevant publication in the Official Gazette.

A dormant company may voluntarily apply for strike off by submitting a relevant request to the RoC. The company in its capacity as the applicant must ensure that it has complied with all of its statutory and ancillary obligations, as provided by the Companies Law and has settled all its affairs including its obligations to corporation taxes, VAT, Social Insurance, creditors and that there is no prohibiting court order against the Company. Once the registrar is satisfied that the company has honoured its relevant obligations, it proceeds with strike-off as requested.

Reinstatement

A company which has been struck off from the register either voluntarily or involuntarily may be reinstated and be regarded as never struck off.

Any interested party (e.g. member/shareholder of the company, creditor or whoever deems that they have been damaged by the actions of the company before its strike off) may request by way of an application to the court for the reinstatement of the company. This application can be made within the period of 20 years from the date of strike-off. If the court is satisfied that the company at the time of its strike off had been conducting business or was still in operation or if it is deemed fair for the company to be reinstated then the court may order the reinstatement of the company.

Provided that the RoC is satisfied that all the requirements of the law are complied with, it proceeds to the reinstatement of the company, the update of the register of the RoC, and to the publication of its reinstatement in the Official Gazette. Upon reinstatement of its name to the register the company is regarded as existing and never struck off before.

Administrative reinstatement of a company

 In case that a company is struck off from the register of companies for non-compliance with the Companies Law (i.e. for failure to submit any document required by the law or for failure to pay the annual government fee or in case a company is struck off from the register because the RoC has reasons to believe that the company is not operating), the said company may be reinstated through the procedure of the administrative reinstatement. In contrast with the procedure described above, in which a court order is required, the procedure of administrative reinstatement does not require the acquisition of a court order and upon company’s reinstatement, the company is deemed to have continued its existence as if it had never been struck off.

Reinstatement can take place with the submission of the relevant statutory form to the RoC together with all ancillary documents within 2 years of the date of strike off.

Submission of the form can be effected by a company director or company member.

If the RoC is satisfied that all legal requirements have been met, they will re-instate the company and issue a certificate of reinstatement with the date it has been re-instated and update the companies register. The re-instatement will be published in the Official Government Gazette.

Cyprus New Pre-Action Protocols: A mere formality or a substantive change of mentality?

Posted on | by Paschalis Paschali

In an attempt to modernize and expediate the legal procedures in our country, new Civil Procedure Rules have come into force since the 1st of September 2023, thus changing drastically our legal system. The just and proportionate as to costs handling of the cases, is placed at the heart of the reforms, as reflected in the overriding objective codified in Part 1 of the new Rules. In fact, the new Rules require the Court to handle all cases proactively by encouraging the parties to cooperate with each other, to identify the issues of dispute at an early stage and to facilitate the use of alternative dispute resolution procedures if necessary. To this end, the new Rules introduce certain Pre-Action Protocols that the parties are expected to follow before the initiation of legal proceedings before the Court.

It is worth noting that up to date, parties in litigation were not obliged to engage to any kind of pre-action conduct, apart from very limited circumstances such as in instances where a creditor of a company was obliged to send a 21-days’ notice of demand before filing a winding-up petition against the debtor company (see Art. 211 and 212, Cap. 113). The establishment therefore, of a formal mechanism which promotes the cooperation of the parties at a pre-action stage is certainly innovative.

The new Pre-Action Protocols aim at enhancing the pre-action communication and exchange of information between the parties, while the ultimate purpose they serve is the effective settlement rather than the adjudication of claim. The parties shall comply with the said protocols in a substantive way. Non- substantive adherence with the protocols’ requirements e.g. by omitting to disclose to the other party adequate information or evidence required by the protocol, may be considered as breach of the same and the Court may impose sanctions to the party in breach. In instances, for example, where, to the judgment of the Court, the non-adherence with the pre-action protocols has led to the initiation of an action, the claim of which could have been settled, the Court may order the party in breach to pay the total or part of the amount of the costs incurred. It is therefore evident that, through the imposition of sanctions, a more pragmatic approach as to the compliance of the protocols is adopted rather than merely a theoretical one.

Certain kinds of claims, such as personal injury claims, require the use of a specific Pre-Action Protocol as provided by the new Rules. It is however remarkable that even for claims for which no specific type of Pre-Action Protocol is required to be used, the Rules provide that the parties must act reasonably regarding the exchange of evidence and information and in a way so as to avoid the filing of an action before the Court. Parties are discharged from the obligation to engage in any sort of pre-action conduct only in instances where their claims are considered to be urgent, in instances where the claim is close to become time-barred or in instances where there are sufficient reasons not to engage to pre-action conduct. In such instances the reasons for the non-engagement must be outlined in the statement of claim.

In light of the above, it is obvious that from 1st September 2023 onwards, parties will be obliged to adhere to some kind of pre-action conduct. Potential omission from their part to do so will have to be accompanied with reasons for their non-compliance, while non-compliance for no good reasons may lead to them being penalized in relation to the legal costs incurred. It is therefore evident, that the new Rules attempt to introduce a  new mechanism which will encourage potential litigation parties to settle their claim in an effective and cooperative way prior to submitting their action before the Court.

This, is believed to be achieved through the exchange of evidence and information at an early stage, contrary to what used to be the case until today where proceedings initiated with the exchange of pleadings, which by default did not include evidence. As a result, parties were unable to assess the strength of their case and therefore, settlement could not easily be reached.

Consequently, the new reforms seem to “push” towards a more settlement-based legal system rather than a more adversarial one. A system that would perhaps place litigation at the top of the pyramid of our legal system and that would render it as a solution of a last resort when it comes to the resolution of a dispute.

What is certainly inarguable is that the application of the new Civil Procedural Rules must be accompanied with a change of culture, mindset and philosophy by all legal representatives who will definitely need to embrace and uphold this freshly-introduced mentality.

BIM and the Cypriot construction industry, a construction lawyer’s perspective

Posted on | by Paschalis Paschali

What is BIM?

BIM, which is the acronym for Building Information Modelling is not new. In fact, BIM as a concept was first developed in the 1970s. The acronym BIM crept into existence sometime in the late 1980s and the protogenic BIM software, albeit quite limited in its  functions, was  first issued in the mid 1990s. Nowadays, the technology has progressed to such an efficiency that most developed construction markets, irrespective of location, have shifted to BIM.

Such is the level of growth and acceptance of BIM that in 2011, just 13% of industry professionals surveyed by UK construction software provider NBS were actively using BIM software, and 43% had yet to hear of the technology. A decade on, according to the annual NBS BIM Report, 73% of practices now use BIM, while just 1% remain unaware.

A very apposite yest easily comprehensible explanation of what BIM is and how it functions is that it is software which creates digital representations of the physical and functional characteristics of spaces. In short, it is software which is used to plan, design, construct, operate and maintain buildings.

In truth though, BIM is much more than mere computer software. It is a new construction process centred around the complete collaboration of all the parties involved in the construction process through the sharing of information throughout the planning and construction process in real time

BIM software allows for the creation of the 3D models of what is actually to be built so that the Employer, Architect, Contractor, Civil engineer, M&E engineer, QS and Interior Designer can use the model to control the design, cost and the construction process itself. Most significantly BIM is relied upon as a tool for quick and independent problem identification and remedial decision-making, from project inception to handover.   BIM is naturally most beneficial when implemented at the beginning of project so that  the planning and tendering process is done through BIM. Thereafter the model can be further developed as the project moves along its life cycle.

BIM model rendering
BIM model rendering

What does BIM do?

Simply put, everyone associated with the project works and in fact designs and builds using the same 3D model and all aspects of the planning and design are inputted into the BIM software. Any and all matters and/or issues relating to every aspect of the construction process are viewable to all and can be resolved so as to identify and eradicate any potential error before an error occurs or to deal with any necessary alteration of any aspect of the project.

BIM software flagging up a clash between the Architect’s plans and the M&E Engineer’s plans

A notable and, in terms of Cyprus, very relevant example of BIM operation is the instance of a variation. A variation, once decided upon will be inserted into the 3D BIM model by the Architect and is instantly and contemporaneously viewed by all other parties. In principle the cost of the variation can be calculated by the software itself since the software can be linked to the BOQ. Also, the software, which is linked to the planning and construction schedules can be used to develop the extension or saving of time calculation that the variation warrants. Then the Contractor and any other party whose work is affected by the variation proceeds with its execution, thereby minimising the potential or time wasting and costs involved in disputing or arguing about the implications in time and costs in relation to the variation.

BIM and Sustainability

We are all becoming aware of the need for sustainability. The BIM model can interact with specific sustainability software to carry out sustainability analysis so as to achieve optimum comfort and design optimisation as well as energy efficiency.

It is significant to note that one is able to track and attain Sustainability Certifications by the interlinking of BIM and sustainability software.

Finally, BIM software also allows for facility management as it may be integrated with computer-aided Facility Management Systems to ensure a smooth transition from the handover stage to the facility management stage once the project is completed and the Employer takes over its operation.

When BIM is utilised by a proficient Project team, the software allows for the archaic 2D modelling (i.e. plans on paper) construction process to move to 7D.

The 7 dimensions are as follows:

3D = Interactive plans

4D = Time calculation

5D= Cost calculation

6D= Sustainability

7D= Facility Management

Energy efficiency gauge on BIM model

How will BIM change the Cypriot construction industry?

Through BIM design, issues will be identified and resolved before they enter the critical path for construction. This means that parties will no longer be forced to argue about cost and extension of time claims since these factors will be calculated by the BIM software itself.

Projects will be planned and executed in the most cost effective and sustainable manner and budgets will be monitored much greater accuracy.

The adoption of BIM will effectively usher in a new era of construction in which most disputes associated with the construction process are resolved by the software itself. One can only imagine the decrease in cost to the public purse if government projects were tendered for and constructed with the use of BIM.

At the same time Contractors bidding for government projects will benefit from the increased certainty, transparency and objectivity that BIM will introduce. As a result the market will become much more competitive due to the renewed confidence in how the project will be run.

Most importantly BIM will promote greater confidence, cooperation and trust in the beleaguered construction industry of Cyprus due to the minimisation of disputes that lead to delays in payments and protracted and increasingly expensive legal disputes.

An Employer who uses the BIM model will benefit from more competitive prices due to the elimination of the uncertainties that BIM can achieve.

Even though constructing with the use of BIM has a cost, this cost is by no means restrictive in large development and public projects. In fact the opposite is the case. By using BIM the Employer, whether private or the government will end up saving money for the plethora of reasons outlined above.

BIM vs Lawyers

One could think that BIM could spell bad news for lawyers since the software eliminates many of the reasons for disputes that occur during the construction process. This is, however not the case. Recent case law in the United Kingdom and in the US has flagged up a plethora of BIM related legal disputes. After all, BIM works through human input. BIM has not yet reached the stage where it can eliminate human error. As shown above BIM can greatly reduce the effects of human errors as it can identify it and possibly aid in resolving the effects of it on site but the capacity for human error still remains a risk.

Recent disputes that have reached the courts have involved questions like:

Determining liability: Questions arise as to who bears responsibility for design errors and other human errors imputed into the BIM software. If numerous parties are sharing and using the same model then it becomes harder to ascertain who is at fault for the error once the error occurs.

Responsibility issues: A breakdown of communication can occur when not all parties on the project are using BIM (which sometimes is precisely the case). Sometimes the project might be both on BIM and on 2D plans which if not checked thoroughly might have discrepancies between them which can lead to errors which are then built into the project, and which will have to later me remedied.

Finally, ownership / title issues: Disputes as to who has ownership and/or copyright of the BIM software relating to a project are the most common form of dispute. This usually happens when there is a breakdown in relationship and the party most in control of the BIM pulls the plug and locks the other parties out of using it to finish the project.

With the above in mind, even though BIM will help prevent or resolve a large percentage of traditional disputes, it will not go as far as to eradicate disputes altogether. Even with BIM, disputes as to workmanship, design, cost and time will still occur, but simply to a lesser extent. Coupled with the BIM related disputes mentioned above there will still be ample ground for lawyers to “cross swords” in construction.  

Parties will therefore do well to look to lawyers with the relevant legal experience and expertise in understanding BIM, its implementation and the legal issues that arise through its use. Contract clauses will have to be drafted with BIM usage in mind and parties will need to incorporate the use of this technology in the actual terms of the contract itself, both in relation to the terms relating to the construction as well in relation to the clauses regulating the dispute resolution mechanisms of the contract. Simply put, lawyers will not be out of a job anytime soon but rather their scope of operations will evolve to include BIM.

Using BIM now

Readers operating in the Cypriot construction industry may be excused for thinking that BIM is years away from becoming a significant factor in the Cypriot construction industry. We are however confident that that is not the case and the situation will change rather rapidly.

One of the main reasons supporting this view is the commonly held belief that the current state of the construction industry in Cyprus is not sustainable. This is one of the few things that both Employers and Contractors agree upon.

The time is therefore ripe for the introduction of BIM into the construction market. In this context it is significant to note that BIM can be used on a project even if all parties to the process do not yet know how to use and/or do not yet have access to the relevant software. The fact of the matter is that if an Employer wishes it to be so, any Cypriot project can be run on BIM starting tomorrow.

We are currently working with construction professionals operating in Cyprus with long standing international experience working with BIM. They are very well placed to advise on and to provide BIM implementation by assisting clients in the construction and development of the models required for BIM to operate on a project and in setting out the necessary BIM process and procedures in relation to the project, irrespective of its stage of development or construction.

For any related queries and/or more information on how BIM can be put to use on your construction project please contact the Construction and Real Estate team at Ioannides Demetriou LLC.

All photos and model depictions used in this article are the property of and have been graciously provided by DG Jones and Partners (www.dgjones.com).

Trademark protection in the Metaverse

Posted on | by Paschalis Paschali

As the Metaverse continues to grow and evolve, it brings about exciting opportunities and challenges for businesses and creators alike. With virtual worlds becoming a significant part of our digital lives, intellectual property protection becomes crucial in this immersive digital realm. In this article, we will explore how trademark protection in the Metaverse has been addressed so far.

The Metaverse can be described as a virtual universe where users interact with one another and digital content in real-time. It encompasses virtual reality (VR), augmented reality (AR), and other immersive technologies. Within this vast digital landscape, brands and trademarks play a crucial role in distinguishing products and services, fostering consumer trust, and promoting healthy competition.

Recently, in a groundbreaking ruling, a New York court applied trademark infringement analysis to non-fungible tokens (NFTs) and found that a collection of digital images called ‘MetaBirkins,’ featuring fur-covered handbags attached to an NFT, could confuse consumers with the luxury fashion brand Hermès Birkin bag. Hermès argued that the MetaBirkins collection infringed its trademark for the word ‘Birkin’ violated its trade dress rights, and involved cyber-squatting and unfair competition. The court upheld all of Hermès’ claims and awarded the brand $133,000 in damages. This decision has significant practical implications, suggesting that existing trademark rights on physical goods can potentially be enforced against their unauthorized use in virtual environments. It also highlights the importance of balancing fundamental rights when addressing trademark infringements related to NFTs and new forms of artistic expression. Additionally, the ruling raises questions about the distinction between owning the digital images and owning the ownership rights to the NFT in terms of legal action against infringement.

Although this decision has no binding effect in Europe, significantly, it indicates that existing trade mark rights on physical goods could potentially be enforced against their unauthorised use in virtual environments, in spite of the fact that the trade mark proprietor is not yet active in the metaverse or in the market of NFTs certified digital assets.

While most businesses have trademark registrations for “real world” goods/services, some are extending their trademark portfolios to include virtual goods and services. The European Union Intellectual Property Office (EUIPO) has provided guidance to brand owners on describing metaverse and NFT-related goods/services and the appropriate NICE classes to use. According to the guidelines, classes 9 (downloadable virtual items), 35 (retail store services encompassing virtual products), 41 (online entertainment services), and 42 (minting of NFTs) are relevant for trademark registrations related to the Metaverse. Generic terms like “virtual goods” or “non-fungible tokens” are not sufficient and must be further specified, such as “downloadable virtual goods, namely, virtual clothing” or “downloadable digital files authenticated by non-fungible tokens.”

There are also several infringement issues to address, including whether reproducing a trademark in the metaverse constitutes an infringement. Mere reproduction of a mark by an avatar in the metaverse may not satisfy the criteria for trademark infringement, similar to how wearing a T-shirt with a third-party logo does not infringe in the real world. However, offering an avatar design or accessory service using a third-party trademark or using a third-party trademark for a virtual store front likely constitutes infringement.

As the Metaverse continues to shape the digital landscape, the EU is proactively addressing trademark protection to safeguard brand owners’ rights. The established trademark protection framework, through institutions like the EUIPO, enforces legal remedies, prevents consumer confusion, and fosters international cooperation. This concerted effort ensures that the Metaverse remains a secure and innovative space for businesses, creators, and consumers alike. By upholding trademark rights, the EU promotes a thriving virtual environment where brands can flourish while providing users with a trusted and engaging experience.

Ultimately, the level of trademark protection in the Metaverse will depend on the legal and regulatory developments that emerge as the concept evolves and becomes more established. It is advisable for brand owners and businesses to closely monitor the legal landscape and consult with legal experts who specialize in intellectual property and emerging technologies to understand the specific implications and protections related to trademarks in the metaverse.

Get in touch for a consultation with our team.

The Protection of Taxpayers’ Rights

Posted on | by Paschalis Paschali

In the past, the application of human rights provisions in the field of taxation was scarce. The European Court of Human Rights had in the past considered tax matters as falling within the protection of the European Convention of Human Rights, but only in so far as they were classified as criminal charges.

Today, there is a major shift of attitudes. In the European Union, as of 1 December 2009, with the entry into force of the Lisbon Treaty, the Charter of Fundamental Rights constitutes primary EU law. As such, the restrictive application of the European Convention of Human Rights as regards taxation is no longer an issue as there is a provision in the Charter which limits the scope of the rights to criminal tax charges.

It should first be pointed out that the provisions of the Charter are addressed primarily to Union institutions and bodies. They are also binding on Member States but only when and in so far as they are implementing Union law. Therefore, the Charter applies when the Member State authorities apply an EU regulation directly as this involves the implementation of EU law. It also applies when national authorities adopt or apply a domestic law transposing an EU directive. Furthermore, it applies to national rules imposing penalties for non-compliance with a directive, even if the directive itself does not make an express reference to penalties.

There are several articles of the Charter that provide for procedural guarantees and are applicable to tax procedures. These articles include:

  • Article 7, which provides for the right of respect for private and family life
  • Article 8, which provides for the right of protection of personal data
  • Article 11, which provides for the right of protection of the freedom of expression and information
  • Article 17, which provides for the right to good administration
  • Article 47, which provides for the right to an effective remedy and a fair trial
  • Article 48, which provides for the right of presumption of innocence and the right of defence
  • Article 49, which provides for the principles of legality and proportionality of criminal offences and penalties
  • Article 50, which provides for the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

There have been some interesting cases at the CJEU where some of these rights were invoked. In this newsletter, we look at some of the areas in which the EU’s Charter has afforded protection to taxpayers which may be relevant to the audit process, investigations, information orders and penalties.

Tax Investigations/Searches/Seizures – The right of respect for private and family life

In the WebMindLicenses case, the CJEU dealt with the question whether in a situation where a taxpayer was being investigated for tax abuse concerning VAT, the tax authorities could use evidence obtained without the taxpayer’s knowledge in the context of a parallel criminal procedure that had not been concluded, when such evidence was obtained through interception of telecommunications and seizure of emails.

Here, the CJEU found that the interception of telecommunications and the seizure of emails in the course of searches at the professional or business premises of a natural person or the premises of a commercial company, could constitute an interference with the exercise of the right to privacy under Article 7 of the Charter.

Whilst the tax authorities were allowed, in order to establish the existence of an abusive practice concerning VAT, to use evidence obtained without the investigated taxpayer’s knowledge, this had to be done in a manner compatible with Article 7. The authorities had to show that the interception of telecommunications and the seizure of emails were means of investigation provided for by law and were necessary in the context of the criminal procedure. The authorities also had to show that the right of defence was respected and the investigated taxpayer had the opportunity, in the context of the administrative procedure, to gain access to the evidence seized and to be heard. National courts must also have a power to review whether the evidence obtained by the authorities was in accordance with EU law.

If these safeguards were not met, then the evidence obtained had to be disregarded, being fruits of a poisonous tree. It appears that irrespective of what the national law stipulates on the use of illegally obtained evidence, the CJEU demands that a separate and autonomous assessment should be made, based on the guarantees protected by the EU Charter. However, this is not settled yet and there is conflicting precedent by the European Court of Human Rights in a subsequent case (K.S. and M.S. v Germany), whereby information obtained by the tax authorities under questionable circumstances was still admissible.

It should not be forgotten that the EU’s Charter rights are only applicable as regards the implementation of EU law. Therefore, if the investigation is for abuse of a non-EU tax, arguably, the evidence illegally obtained might be admissible. This would depend on local law.

Reporting Obligations & the Legal Professional privilege – The right of respect for private and family life

Due to the increasing reporting obligations of tax intermediaries under EU law following DAC 6, there was concern that the legal professional privilege may in some cases be eroded, especially as regards the provision which had the effect of requiring a lawyer acting as an intermediary, where they were exempt from the reporting obligation on account of the legal professional privilege, to notify any other intermediary who was not their client of that intermediary’s reporting obligations (Art 8ab(5)). In a recent important judgment in the Vlaamse case, the CJEU found that this provision was invalid as it infringed Article 7 of the Charter.


The obligation of the lawyer acting as an intermediary (otherwise exempt from reporting due to the legal professional privilege) to notify other intermediaries, in so far as these other intermediaries did not necessarily have knowledge of the identity of the lawyer-intermediary, interfered with the right to respect communications between lawyers and their client, as guaranteed in Article 7 of the Charter. Furthermore, as the third-party intermediaries notified were not themselves bound by legal professional privilege, they had to inform the competent tax authorities of the disclosure under the provisions of the Directive – another interference with Article 7.


Therefore, any reporting obligations on tax intermediaries covered by the legal professional privilege which indirectly affect this privilege, to the extent that they are derived from EU laws, may be struck off.

Naming and Shaming/Beneficial Ownership Registers – The right of protection of personal data

The right of protection of personal data under Article 8 of the Charter of Fundamental Rights is also a very important right which, in theory, can curb the extensive power of tax authorities in relation to the use and exchange of personal data of taxpayers.

In Puškár, the CJEU considered a case where the Slovakian tax authorities published a list of names of individuals, referring to them as white horses – i.e. persons acting as fronts in company director roles. It was questioned whether this was compatible with Article 8 of the Charter. The CJEU found that the processing of personal data by the authorities for the purpose of collecting tax and combating tax fraud was allowed, subject to strict conditions. Firstly, the relevant authorities had to be invested by the national legislation with tasks carried out in the public interest. Secondly, the drawing-up of that list and the inclusion on it of the names of the data subjects had to be adequate and necessary for the attainment of the objectives pursued. Thirdly, there were sufficient indications to assume that the data subjects were rightly included in that list.

In a landmark case decided recently, the Luxembourg Business Register case, it was held that Luxembourg’s requirement that beneficial ownership registry information be displayed online and remain accessible for all members of the public violated the right of protection of personal data. The Luxembourg rules were implementing the rules of the Anti-Money Laundering Directive (Directive (EU) 2018/843) and as such, fell within the scope of the Charter of Fundamental Rights. The rules of the Directive were found to be invalid by the CJEU, as they constituted a serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter.

Personal tax data, including tax information exchanged between a Member State and a third country, may also be protected under the General Data Protection Regulation. It could be problematic if the level of protection of the information by the recipient third country is not adequate, as per the EU standards.  

Information Orders and Requests for Recovery – The right to effective remedy and fair trial

In recent times, tax authorities have acquired extensive powers for information requests and recovery orders. Some of these powers have been given to tax authorities as a result of EU legislation, for example, the Directive on Administrative Cooperation (and all its amendments), the Mutual Assistance Directive for the Recovery of Claims, the Anti-Money Laundering Legislation etc. The enhanced powers of tax authorities are a common feature of the post-BEPS era. The exercise of some of these powers can, however, affect the rights of taxpayers to a fair trial, or the right to effective remedy.

In the Berlioz case,  the Spanish tax authorities sent requests for exchange of information to the Luxembourg tax authorities in the context of an investigation of a Spanish taxpayer. The Luxembourg tax authorities did not possess the requested information and made an information order pursuant to the Directive on Administrative Cooperation, to a Luxembourg company and a Luxembourg bank with a possible fine of 250.000 euros in the case of non-compliance. This was irrespective of the fact that the Directive did not contain any provisions as regards penalties.

Under Luxembourg law, the information holder could challenge the amount of the fine but not the information request. The addressees of the information order (i.e. the Luxembourg company and bank) and the taxpayer challenged the legality of the order under Article 47 of the Charter.

The CJEU found that the addressees of the information order had the right to challenge the legality of the information orders, as well as the penalties. The foreseeable relevance of the requested information was also a condition of the validity of an information order.

Here, the addresses of the order had challenged its legality also on the basis that the information requested was not foreseeably relevant. They argued that they should have the right of access to Spain’s request for information to the Luxembourg authorities. Here, the CJEU, taking into account the secrecy provisions of the Directive, found that the request for information must remain confidential, including to interested parties in the course of the administrative and judicial proceedings. This provision did not infringe the rights of the defence and the right to a fair hearing, as long as the relevant person (here, the addressees of the order) could access the minimum information set out in the Directive (Article 20(2)), to assess the lawfulness of the information order: namely, the identity of the taxpayer concerned and the tax purpose for which the information is sought.

Issues regarding the legality of proceedings when there is a breach of the right to an effective remedy have also been raised in relation to the Mutual Assistance Directive for the Recovery of Claims.

In the Donellan case, the CJEU found that an authority of a Member State may refuse to enforce a request for recovery on the ground that the decision imposing that fine was not properly notified to the person concerned before the request for recovery was made to that authority by the authorities of another Member State. In order to comply with Article 47 of the Charter it was important not only to ensure that the addressee of a document actually receives the document in question but also that he was able to understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able to assert his rights in the Member State of transmission.

Simultaneous application of sanctions – Ne bis in idem

The principle of ne bis in idem, i.e. the right not to be tried or punished twice for the same offence, comes into play when administrative and criminal sanctions are imposed on the same person for the same offence.

In the case of Åkerberg Fransson, the CJEU held that under the ne bis in idem principle, a Member State is not allowed to impose, successively, for the same acts of non-compliance with VAT declaration obligations, a tax penalty and a criminal penalty, in so far as the first penalty (the administrative one) was criminal in nature. This was a matter which was for the national court to determine.

In a later case, the Luca Menci case, the CJEU examined a situation where criminal proceedings were initiated against a taxpayer who had previously been subject to a final administrative penalty for non-payment of VAT. It was found that for the national legislation to be compatible with Article 50 of the Charter it had to pursue an objective of general interest which justified such a duplication of proceedings and penalties. Furthermore, the national legislation had to limit the duplication, including the penalties imposed, to what was strictly necessary.

Know your taxpayer rights

It is very important to know your rights as a taxpayer. This newsletter provided a very limited overview of some important rights and protections offered mainly under EU law. There are many more rights affecting taxpayers’ dealings with tax authorities and principles derived from case law, not only under the Charter but also under the European Convention of Human Rights, which Cyprus follows.

We can help you navigate this area and ensure your rights and interests are protected in your dealings with the Cyprus tax authorities. This is especially important if some of the proposals that the European Commission has been working on, which we discussed in our previous newsletter (e.g. the UNSHELL proposal and the Anti-Facilitation proposal), are eventually adopted.