EUCOTAX Series on European Taxation. The Principle of Equality in European Taxation. Editor. Gerard TK Meussen. 6ucpicxx. QSMiaDQSi INTERNATIONAL

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1 EUCOTAX Series on European Taxation The Principle of Equality in European Taxation Editor Gerard TK Meussen 6ucpicxx QSMiaDQSi INTERNATIONAL THE HAOUE - LONDON - BOSTON

2 CONTENTS Preface About thè Authors and Editors List of Abbreviations TableofCases Table oftreaties and Constitutions xi xiii xv xvii xxvii 1. General Introduction 1 Hans Gribnau 1. Introduction 1 2. Taxation and equality in a historical perspective 3 3. Theruleoflaw 6 4. Democracy 8 5. Constitutional democracy The rule of legislature? The changing position of thè law The judiciary comes to thè rescue A value-oriented theory of law Principles as thè normative core of law Checks and balances in law making Balancing powers and principles From theory to practice The principle of equality in constitutions and intemational treaties Constitution or intemational treaty? The equality principle as methodological instrument Conclusion Austria 35 Karl Korinek and Michael Holoubek 1. Introduction The development of thè Constitutional Court's rulings on thè principle of equality "Localising a violation" of thè principle of equality Procedure for reviewing laws as to their compliance with thè principle of equality Establishing a "discrimination" Review of "objective justification" Existence of a "reasonable ground" 44

3 The Principle of Equality in European Taxation The principle of proportionality Conclusion Belgium 51 Stefaan van Crombrugge 1. Introduction The influence of Artide 14 of thè ECHR and Artide 26 of thè ICCPR on Belgian law The determination of categories of persons The introduction of a specific tax Non-recurrent contribution borne by companies Flemish levy on discharging cooling water Brussels levy on immovable property Levy borne by chemists Anti-pollution taxes Differentiation within one and thè same tax Objective criterion Reasonablejustification The role of thè comparability investigation Incomparability tojustify differentiation Homogeneity of thè categories Proportionality Determining proportionality Conclusion France 75 Philippe Marchessou 1. Introduction A time-honoured assertion of thè principle of equality in thè constitutional texts The affirmation of thè principle of equality in thè French constitutional texts The affirmation of thè principle of equality in tax matters in thè French constitutional texts The protection of thè principle of equality in tax matters as guaranteed by thè Conseil constitutionnel and thè Conseil d'etat The Conseil constitutionnel as censor of thè tax statute The scope of thè principle of equality Equality before thè law Equality concerning public expenses Equality in tax matters Equality between taxpayers 81 vi

4 Contents 3.3 The possibility of discrimination justified by thè need to fight tax evasion The Conseil d'etat: a censor of thè regulations Moderate use of thè principle of equality Beyond an isolated appraisal of each tax The possibility for a taxpayer to invoke thè equality principle in his or her tax trial Adjustment proceeding from a discriminatory interpretation of thè law Adjustment as thè end-product of a discriminatory tax law Conclusion Germany 89 Klaus Vogel and Christian Waldhoff 1. Introduction Federai Constitutional Court decisions on tax equality Ruling on thè joint assessment of spouses Ruling on tax deduction for a contribution to a politicai party Ruling on thè mutuai effect of child support payments and fiscal capability Ruling on thè basic tax-free allowance Ruling on taxation according to assessed value in net-wealth tax Constitutional taxation equality as encumbrance according to thè ability to pay The four roots of thè principle of ability to pay in thè Basic Law Application of thè principle of thè ability to pay The problem of equality in thè constitutionality of taxation law The expression of tax fairness Conclusion Italy 115 Adriano Di Pietro 1. The principle of equality in thè tax field The principle of non-discrimination in tax law The non-discrimination principle in tax law: thè case law of thè Corte Costituzionale Conclusion 123 vii

5 The Principle of Equality in European Taxation 7. The Netherlands 125 Richard Happé 1. Introduction The principle of equality and testing of Acts of Parliament The principle of equality: a fundamental principle in thè Dutch legai order Artide 26 of thè ICCPR Restricted meaning of Artide 14 of thè ECHR for Dutch tax law The Supreme Court's method of judicial interpretation in judging an alleged violation of thè principle of equality Unequal treatment of similar cases Brief sketch of thè Dentist's Wife case Legislator's margin of appreciation First requirement: unequal treatment of equal cases Second requirement: thè absence of a reasonable and objective ground for unequal treatment Unequal treatment of unequal cases Indirect discrimination The Supreme Court's task with respect to thè unjustified unequal treatment of equal cases The Court does not apply thè statutory regulation The Court applies thè statutory regulation in conformity with thè treaty The Court does not do anything, because a choice has to be made that goes beyond its task of developing thè law A special case of relatively direct effect: thè Court leaves thè violation of thè principle of equality undecided An assessment of 10 years of case law on thè basis of thè principle of equality Conclusion Spain 157 Tulio Rosembuj 1 Introduction Constitutional doctrine The power to levy taxes Equality in thè application of thè law Protection of equality The principle of progressiveness Conclusions 163 Vili

6 Contents 9. United Kingdom 165 Philip Baker Conclusion 169 Gerard Meussen 1. Written constitution and thè principle of equality The constitutional courts in Europe Absence of a constitutional court in thè Netherlands and thè United Kingdom A constitutional principle of equality European Court of Human Rights case law Application of thè principle of equality in taxation Conclusion 174 Appendix I: Survey oftreaties and Constitutions 175 International Covenant on Civil and Politicai Rights 175 European Convention on thè Protection of Human Rights and Fundamental Freedoms 176 Constitutions: Austria 177 Belgium 177 France 178 Germany 181 Italy 187 The Netherlands 187 Spain 188 Appendix II: Case Law ofthe European Court of Human Rights 191 Tyrer 191 Gillow 203 Inze 224 Darby 239 Hentrich v. France 247 Karlheinz Schmidt v. Germany 265 Index 273 IX