The Impact of Fundamental Rights on Taxa7on in Europe

Transcription

1 Taxa7on Law Research Seminar Faculty of Law University of Hong Kong 26 th January 2011 The Impact of Fundamental Rights on Taxa7on in Europe DR WERNER C HASLEHNER Law Department London School of Economics and Poli7cal Science Contact: w.c.haslehner@lse.ac.uk

2 Overview Defini7on of fundamental rights Reasons for fundamental rights in tax Fundamental taxpayer rights Three layers of European fundamental rights ECHR and taxa7on Cons7tu7onal law and taxa7on EU Fundamental rights and taxa7on Conclusions

3 Defini7on of fundamental rights Rights as trumps or op(miza(on commands? Dimensions of fundamental rights Formal: legally defined as such Substan7al: protec7on of individuals as primary aim Procedural: limi7ng legisla7ve power Bentley s defini7on of taxpayer rights Primary legal rights validity of tax law Secondary legal rights applica7on of tax law Administra7ve rights and administra7ve goals.

4 Why protect FR in tax law? Fundamental rights as human rights Why not protect FR in tax law? Is tax law a special field of law? Benefits to the state Acceptance compliance

5 Fundamental taxpayer rights The role of fundamental rights in taxa7on Substan7ve tax law Procedural tax law Principles and fundamental rights in taxa7on Certainty Equity / Fairness Substan(ve Procedural Efficiency? Neutrality? Rule of Law Equality Fair Trial Equality? Privacy

6 Three layers of FR in Europe Interna7onal level European Conven7on of Human Rights Other interna7onal documents (ICCPR, UDHR) Na7onal level European na7onal cons7tu7ons Suprana7onal level EU fundamental rights: European Charter of Fundamental rights, Principles of EU law (case law developed rights)

7 Three layers of FR in Europe EU Fundamental Rights (EChFR + case law) National Constitutions ECHR ECHR Protocols

8 ECHR and taxa7on Rights affected by taxa7on Right to Property (Art. 1 Protocol 1 ECHR) Right to Fair Trial (Art. 6 ECHR) Right to non discrimina4on (Art. 14 ECHR) Right to Privacy (Art. 8 ECHR)

9 ECHR and taxa7on II Some results from case law Tax laws have to be clear and forseeable Valua7on for tax law has to be consistent Retrospec7ve taxa7on? Not per se prohibited, but subject to strict propor7onality test Technical: Right to input VAT credit No right to fair trial in tax proceedings, but excep7ons for surcharges etc Discrimina7on of non residents and co habi7ng siblings unclear comparability standard No search of premises without judicial control

10 Cons7tu7onal Rights and Tax Examples from Germany Human dignity (Art. 1 GG) Right to decent subsistence tax free allowance Property (Art. 14 GG) Maximum tax burden? Legality/legal certainty (Art. 20 (3) GG) Non retrospec7ve taxa7on Equality (Art. 3 (1) GG) Ability to pay principle and consistency requirement Fiscal neutrality in VAT

11 EU Fundamental Rights Issues of Competence No general fundamental rights competence No general tax competence Where do EU rights come from then? Reasons for development Doctrine of supremacy of EU law Par7al legisla7ve power (especially VAT) Effec7ve protec7on?

12 EU Fundamental Rights Content and standard of protec7on ECHR Minimum standard Cons7tu7onal tradi7ons of the Member States Common denominator, maximum standard or autonomous standard? Scope of applica7on EU Legislator Member States as agents of EU legislator

13 EU rights and taxa7on Legisla7ve competence and harmoniza7on Direct taxa7on Only residual competence Likle harmoniza7on No applica7on of EU fundamental rights (?) Indirect taxa7on Competence to harmonize Especially for VAT EU and Member States bound by fundamental rights

14 ECJ case law: Rights and VAT Principle of Propor7onality No overburdening of tax collector (fraud cases) Fair Trial Generally applicable to tax Legal Certainty and Legi7mate Expecta7ons Clear and precise rules, no retrospec7ve applica7on Innocent taxpayers in fraud cases Equality General right but how to assess comparability? Fiscal neutrality in VAT

15 Conclusions What is the impact of fundamental rights in Europe? How do the three layers interact? Why are there differences in their scope? Is there enough protec7on for taxpayers?

16 Thank you for your aken7on!