1. Access to banking data for tax assessment purposes: the Italian framework
On 8 January 2026, the First Section of the European Court of Human Rights (ECtHR) jointly examined the cases Ferrieri and Bonassisa v. Italy, concerning the Italian Tax Authority’s access to the applicants’ banking data for tax assessment purposes. The applicants alleged a violation of Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to respect for private life and protects individuals against unjustified interference by a public authority with the exercise of this right. The importance of this judgment lies in the substantive protection it affords to such right through a systemic assessment of the domestic legal framework. Notwithstanding the existence of a valid legal basis, an interference with that right may remain unjustified where systemic deficiencies in the interpretation and application of domestic law undermine the safeguards afforded by the Convention.
In the present case, the measures at issue are primarily governed by Presidential Decree No. 633/1972 and Presidential Decree No. 600/1973. In particular, Article 51(2)(7) of Presidential Decree No. 633/1972 empowers the Italian Tax Authority to submit requests to banks and other financial intermediaries in order to obtain data, information and documents relating to a taxpayer’s financial relationships and transactions. Article 32(1)(7) of Presidential Decree No. 600/1973 reproduces the same mechanism with respect to income tax assessments.
However, in both cases, the exercise of this power is subject to prior authorisation, whose granting criteria have been further specified by administrative practice. In particular, Circular no. 131/1994 provided that tax offices seeking authorisation to carry out banking data investigations were required to sufficiently substantiate their requests providing specific elements (e.g. the reasons for undertaking the inquiry).
Given that the legal nature of that authorisation was central to the determination of the case, the ECtHR examined in detail both the domestic case law and the relevant circulars in order to reconstruct a coherent legal framework. On the basis of the settled interpretation adopted by the Italian Supreme Court, the ECtHR observed that such authorisation had consistently been regarded as a purely procedural measure, that by virtue of its internal nature is not subject to a duty to state reasons and is not independently challengeable before the tax courts. This interpretation is consistent with Article 19 of Legislative Decree No. 546/1992, which contains an exhaustive list of acts that can be challenged before the tax courts. While the provision expressly includes tax assessment notices among the acts subject to judicial review, it does not mention the authorisation granting access to banking information. As a result, the authorisation lacks independent legal effects on the taxpayer and any alleged unlawfulness may be raised only indirectly, within proceedings brought against the subsequent tax assessment notice. However, such notice may be issued several years after the collection of banking information, potentially jeopardising judicial scrutiny.
2. Article 8 ECHR: applicability and justification of interference
The ECtHR began by examining whether the right to respect for private life under Article 8(1) ECHR was engaged and, relying on its established case law, concluded that the provision was applicable to the present case. Indeed, the ECtHR has already clarified that details concerning taxable earned and unearned income fall within the scope of individuals’ private life (Samoylova v. Russia). In this context, it should be emphasised that there is no exhaustive definition of the concept of “private life” within the meaning of Article 8 ECHR: the Court consistently adopted a broad interpretation, affording a multi-faceted protection to personal integrity, reputation, self-determination, and personal data (Hirvelä and Heikkilä, 2023). Furthermore, the ECtHR has already held that access to and examination of an individual’s bank account constitutes an interference with the right to respect for private life (Brito Ferrinho Bexiga Villa-Nova v. Portugal). Accordingly, the Tax Authority’s access to the applicants’ banking data in the present case likewise constituted an interference, a point that was not contested by the Italian Government.
Having established the applicability of Article 8(1) ECHR and the existence of an interference with the applicants’ right to respect for private life, the Court proceeded to examine three cumulative conditions to verify whether such interference could be justified under Article 8(2) ECHR: be “in accordance with the law” (1); pursue one or more of the legitimate aims listed in Article 8(2) ECHR (2); and be “necessary in a democratic society” for the achievement of those legitimate aims (3).
The usual approach adopted by the Court is to consider those elements separately in the order set out above (Harris et al., 2014, p. 506). Therefore, the ECtHR started examining whether the interference was “in accordance with the law”, a requirement that ultimately proved decisive for the resolution of the case. In this context, the Court highlighted that the expression “in accordance with the law”, within the meaning of Article 8(2) ECHR, involves a four-step test: the contested measure should have some basis in domestic law (1); domestic law should be accessible to the person concerned (2); the affected person should be able, where necessary with legal advice, to foresee the consequences of relevant provisions (3); finally, domestic law should be compatible with the rule of law (4). Taken together, these requirements constitute a “quality of law” standard which, in relation to domestic law, encompasses its accessibility, foreseeability, and the existence of adequate and effective safeguards against abuse (Big Brother Watch and others v. United Kingdom).
The Court emphasised that the notion of “law”, within the meaning of the provision, has a substantive character, encompassing also lower rank measures (i.e. circulars) and the relevant case law. In this case, the measures at issue were prescribed by law and the applicants did not dispute that such provisions were accessible to them. Nonetheless, they challenged the compatibility of the domestic legal framework with the quality of law requirement on two distinct grounds: first, they argued that the applicable provisions conferred excessively broad discretionary powers on the public authority; second, they claimed that the domestic legal system failed to provide adequate procedural safeguards to individuals due to the absence of a judicial or independent review. Accordingly, the Court assessed whether the domestic legal framework sufficiently delimited the scope of discretion of national authorities and whether it provided adequate procedural safeguards against abuse or arbitrariness.
3. The absence of limits on the authority’s discretion
In order to comply with the quality of law requirement, domestic law must be clear in the definition of the scope and means of the discretion conferred on the national authorities, ensuring individuals with a minimum degree of protection (Piechowicz v. Poland). In the present case, the ECtHR observed that the contested measures, considering legal provisions only, did not appear to provide any sufficient criterion for limiting such discretion. By contrast, lower rank instruments (i.e. circulars) appeared to play a key role in providing operational criteria and limiting the discretionary powers of the public authorities. However, the interpretative approach adopted by the Italian Supreme Court ultimately undermined the corrective role of administrative practice in the implementation of domestic law. In particular, the absence of a duty to state reasons in the authorisation process becomes the cornerstone of the ECtHR’s assessment. Indeed, if the national authority is not required to justify the exercise of its power by providing reasons for its decisions, a fortiori it is not required to demonstrate that those decisions comply with the criteria laid down by domestic law, including circulars. As a result, the actual exercise of the national authority’s power proves excessively broad in terms of its scope of discretion. This ultimately results in a failure to satisfy the quality of law requirement.
4. The absence of sufficient procedural safeguards
The ECtHR is also called upon to assess the presence or absence of sufficient procedural safeguards against abuse or arbitrariness. In this regard, the Court assessed the existence of an ex post judicial or independent review capable of ensuring adequate procedural safeguards for the applicants in relation to Article 8 ECHR. In particular, the Court analysed three possible remedies: a complaint before the tax court; a complaint before the civil court; and a complaint before the Taxpayer’s Guarantor.
According to the Italian government’s argument, the taxpayer would obtain a remedy through challenging the tax assessment notice before the tax courts. However, the ECtHR noted that this argument was in contradiction with settled domestic case law. The Italian Supreme Court had gone so far as to state that a tax assessment notice would not be affected by any irregularity, or even by the absence, of the authorisation. Furthermore, a tax assessment notice may be issued several years after the filing of a tax return or after the point in time at which a tax return should have been filed. According to the ECtHR’s settled case law, a remedy cannot be considered effective if it is not available within a reasonable period of time (Italgomme Pneumatici S.r.l.) Therefore, a complaint before the tax courts would not amount to an effective ex post judicial remedy.
A similar and equally clear-cut conclusion applies to the possibility of bringing a complaint before the civil courts. In this context, the Italian Government failed to demonstrate the existence of such a remedy on the basis of domestic case law. Furthermore, the absence of an obligation to provide reasons makes it unclear what kind of scrutiny the court would be called upon to exercise.
Finally, the ECtHR found that the Italian Supreme Court had already established that the Taxpayer’s Guarantor does not issue binding decisions, but merely makes recommendations to the tax authorities. In this context, the ECtHR clarified that a non-binding decision cannot amount to an effective remedy within the meaning of Article 8 ECHR.
5. Conclusion
The Court concluded that the domestic legal framework failed to comply with the quality of law requirement, finding a systemic deficiency in the interpretation and application of the law. Indeed, the settled approach adopted by the domestic courts simultaneously deprived the applicants of adequate procedural safeguards and left the public authority’s discretion effectively unconstrained. Such a failure was sufficient for the Court to establish an unjustified interference with the applicants’ right to respect for private life. Accordingly, the Court found it unnecessary to examine the remaining conditions of Article 8(2) ECHR.
Overall, this judgment strengthens the substantive safeguards that lie at the core of Article 8 ECHR. It is also particularly significant that, notwithstanding the dissenting opinion of Judges Krenc and Adamska-Gallant, the application was still upheld despite its potential tension with the principle of subsidiarity, grounded in Article 35 ECHR.
Indeed, in the present case, the Court considered that the interplay between the broad discretion afforded in the exercise of administrative powers, the interpretation adopted by the settled domestic case law, and the particularly lengthy timeframes associated with the issuance of a tax assessment notice ultimately left taxpayers without sufficient procedural safeguards within the domestic legal system.