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1
Dassesse, Marc. "Human Rights, European Law and Tax Law." EC Tax Review 3, Issue 3 (September 1, 1994): 86–90. http://dx.doi.org/10.54648/ecta1994018.
2
Attard, Robert. "Wrong Forma Mentis? The ECtHR’s Tax Judgment in Formela." EC Tax Review 29, Issue 1 (March 1, 2020): 53–56. http://dx.doi.org/10.54648/ecta2020006.
Анотація:
test Human Rights, Right to a Fair Hearing, Right to Property, Article 1 of Protocol 1 ECHR, Article 6 ECHR, European Convention on Human Rights, European Charter of Human Rights, Margin of appreciation, Fiscal Stability, Value Added Tax.
3
Attard, Robert. "Forum Contribution: Tax Penalty Regimes, A Call for Harmonization." EC Tax Review 32, Issue 5 (September 1, 2023): 229–32. http://dx.doi.org/10.54648/ecta2023028.
Анотація:
Recent Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECtHR) judgments imply that some form of ‘European Intervention’ providing for a coordinated approach towards the determination, and quantification of tax penalties has become necessary. Disproportionate tax penalties and concurrent penalties pose a serious hurdle to achieving the European Commission’s political mission to put a tax system in place ‘where everybody pays their fair share’ of taxation. Given current judicial trends, the situation calls for the creation of an ad hoc taxpayers’ charter which imposes red lines for tax penalty regimes. Matters such as ultra duplum, minimus vitalis, non bis in idem, ceiling rates for cumulative penalties and the coordination of punitive measures call for an element of harmonization. Tax harmonization, Disproportionate penalties, Minimum Vitalis, Fundamental Human Rights, The EU Charter on Human Rights, European Court of Human Rights, Non Bis In Idem, Taxpayers’ Charter, Tax penalties, Concurrent Tax Penalties
4
Babin, Igor. "Features of the Application of the Decisions of the European Court of Human Rights by Ukrainian Courts in Tax Cases." DANUBE 11, no. 1 (March 1, 2020): 75–89. http://dx.doi.org/10.2478/danb-2020-0005.
Анотація:
Abstract The purpose of this article is to explore the subject of applying to the European Court of Human Rights in tax cases, the place of decisions of the European Court of Human Rights in the system of sources of tax law, the problems arising from the application of ECtHR decisions by Ukrainian courts in tax cases. The research was carried out using formal-dogmatic, system-structural, comparative-legal, historical and other methods of scientific cognition. The author concludes that it is important to use the decisions of the European Court of Human Rights to resolve public law disputes, the subject of which is public finances. After all, the Ukrainian tax system and tax legislation, the tax status of taxpayers and tax authorities should be based on the fundamental principles enshrined in the Convention and which have repeatedly been systematically interpreted in the decisions of the European Court of Human Rights.
5
Polenchuk, M. D. "Taxpayer protection standard in international tax disputes." Law Enforcement Review 6, no. 2 (June 22, 2022): 106–19. http://dx.doi.org/10.52468/2542-1514.2022.6(2).106-119.
Анотація:
The research project aims to find the most optimal solution to develop the current level of taxpayers' guarantees in the tax treaty disputes resolution procedures.The subject of the article is the analysis of the case law of the European Court of Human Rights on application and interpretation of Article 6 “Right to a fair trial” of the European Convention on Human Rights in the context of the tax treaty disputes resolution procedures.The Author believes that the standard of protection of human right to a fair trial can be used as a starting point for the development of a taxpayer protection standard in the tax treaty disputes resolution procedures.The methodology of the research includes the logical and analytical methods, such as analysis and synthesis, induction and deduction, as well as formal legal interpretation of the European Convention on Human Rights and the case law of the European Court of Human Rights.The key findings are the following. Currently, the international tax disputes resolution procedures under tax treaties based on the OECD / UN Model Tax Conventions are contrary to Article 6 of the European Convention on Human Rights. The mutual agreement procedure, which provides the taxpayer with the opportunity personal participation, could eliminate such a contradiction.The main results, scope of application. The study showed that two approaches in relation to application of the Article 6 of the European Convention on Human Rights to tax disputes can be defined – (a) formal and (b) “substantial”.Formally, the guarantees of Article 6 of the European Convention on Human Rights do not apply to taxpayers in tax treaty disputes resolution procedures, i.e. mutual agreement procedure and arbitration, at least as long as a taxpayer has access to the national court of one of the contracting states to protect the violated rights. Under the case law of the European Court of Human Rights cross-border tax disputes are not typical category of disputes. At the moment the European Court of Human Rights does not express a position on the merits of such disputes with reference to the wide discretion of states in the field of taxation.Nevertheless, according to the “substantial” approach it is necessary to extend guarantees of the right to a fair trial to taxpayers in the tax treaty disputes resolution procedures. This conclusion is based on the fact that the national courts cannot be treated as an effective means of protection of the rights of taxpayers as it is determined by the Article 13 of the European Convention on Human Rights. This approach is in line with the trend set by EU Directive 2017/1852 on tax dispute resolution mechanisms in the European Union, as well as the idea of foreign researchers to develop a global standard for protecting the rights of taxpayers.In the Author’s view, compliance with the fair trial guarantees requires provision of direct participation of the taxpayers in the tax treaty disputes resolution procedures. In this case, the taxpayer will receive the opportunity to be heard and to review all the evidence and procedural documents on the case. The participation of the taxpayer will mitigate the key drawback of the mutual agreement procedure - the lack of a guarantee of a final decision on the case. This is especially important for those states that do not use arbitration, such as Russia.The main conclusion is that the application of the standard of protection of human right to a fair trial in relation to the taxpayers in the tax treaty disputes resolution procedures is an efficient way to develop the current mutual agreement procedure and arbitration and to increase the confidence of taxpayers in these mechanisms.
6
Richardson, Mirugia. "The EU and ECHR Rights of the Defence Principles in Matters of Taxation, Punitive Tax Surcharges and Prosecution of Tax Offences." EC Tax Review 26, Issue 6 (November 1, 2017): 323–34. http://dx.doi.org/10.54648/ecta2017035.
Анотація:
Where national tax legislation comes within the scope of EU law, it must be compatible with the principle of the rights of the defence, as developed by the Court of Justice of the European Union in its case law and found in the Charter of Fundamental Rights of the European Union. The rights of the defence proclaimed by the European Convention on Human Rights (ECHR) is also applicable in tax matters when a tax dispute involves a criminal charge. For the European taxpayer it may not be clear if and when the principle of the rights of the defence can be invoked or how the rights of the defence in EU law and the rights of the defence of the ECHR influence domestic tax proceedings. Broadly speaking, customs duties, harmonized indirect taxes and to some extent direct taxes fall under the EU rights of the defence, while the ECHR applies to tax matters in which punitive measures occur or criminal prosecution takes place.
7
SUKHANOVA, Daria, Siuzanna TSURKANU, Ruslan ENNAN, Olha BALATSKA, and Lesia STRELBITSKA. "ECtHR Practice of Resolving Disputes on Royalty Taxation for the Use of Copyright Objects." Journal of Advanced Research in Law and Economics 10, no. 7 (December 31, 2019): 2113. http://dx.doi.org/10.14505/jarle.v10.7(45).24.
Анотація:
The European Court of Human Rights is increasingly focusing on the compatibility of tax law and intellectual property law with European standards of human rights and fundamental freedoms in the relationship between tax authorities and taxpayers. To increase the efficiency of the work of the bodies of the State Tax Service of Ukraine, as well as the judicial authorities of Ukraine and to ensure an adequate level of protection of the rights and interests of individuals and legal entities, it is important to analyze the ECtHR's practice of resolving royalties for the use of copyright objects. The research methodology consists of general theoretical and special scientific methods, namely: dialectical, historical, systemic, modeling and abstraction, induction, deduction, analysis, synthesis, comparative-legal method, and theoretical modeling. The study analyzes the ECtHR's practice of the settlement of disputes on royalty taxation for the use of copyright objects, clarifies the grounds and key positions of the European Court of Human Rights for resolving disputes related to royalty taxation, and reveals the value of the case-law of the European Court of Human Rights in the development of the tax system of Ukraine.
8
Bahçeci, Barış, and Demirhan Burak Çelik. "Case Law Trend: The Question of Interaction Between the Tax and Criminal Proceedings in the ECtHR Case-Law." Intertax 50, Issue 8/9 (July 1, 2022): 649–62. http://dx.doi.org/10.54648/taxi2022063.
Анотація:
This objective of this study is to analyse the definition and the application of the concept of sufficiently close in substance and in time by the European Court of Human Rights (ECtHR) in terms of tax penalties. The Court implements this concept in Article 4 of the Protocol Number 7 of the European Convention on Human Rights (ECHR) and intends to regulate the interaction between the two sets of (tax and criminal) procedures that deal with the penalization of the same matter. The progress of the case law is examined from the Glantz and Nykänen judgments in 2014 and the Kristjansson judgment in 2021. Two research questions are addressed: What is the connection in substance, and what is the connection in time? For the first question, the case law points out that the connection in substance requires the repetition in collection evidence. However, the boundaries of the relationship that should be established between the two sets of proceedings are uncertain and debatable. For the second question, the temporal connection has not yet been defined in case law, and its application overlaps with the scope of the right to a fair trial. Thus, it is seen that the boundaries in the both contexts need to be redrawn in order to eliminate the current ambivalence. ECtHR case-law, interaction between proceedings, connection in substance, connection in time, ne bis in idem, tax penalty, tax procedure, right to a fair trial.
9
Doan, Kien Trung. "EU’s Legal Framework on Personal Income Tax and Suggestions for Asean to Protect The Rights of Taxpayers." Journal of Contemporary Sociological Issues 2, no. 2 (August 31, 2022): 92. http://dx.doi.org/10.19184/csi.v2i2.31448.
Анотація:
The European Union (EU) has a complete and standard legal system, which is always the object of research and evaluation to learn for many countries. The EU comprises countries with an appropriate personal income tax system to ensure human rights. To ensure equality and human rights, and development in every member state, the EU seeks to harmonise personal income tax law, an area primarily of national jurisdiction. This article aims to study and evaluate some basic regulations that the EU has issued to create compatibility of the personal income tax law of the member states, better ensure human rights and promote the development of the Union. Based on the experiences of the EU, the article analyses some implications for the harmonisation of personal income tax law within the ASEAN from the perspective of international private law.
Keywords: Personal Income Tax, Legal Harmonisation, EU, ASEAN
10
Baker, Philip, and Philip Baker. "BEPS Action 16: The Taxpayers Right to an Effective Legal Remedy Under European Law in Cross-Border Situations." EC Tax Review 25, Issue 5/6 (November 1, 2016): 335–45. http://dx.doi.org/10.54648/ecta2016033.
Анотація:
This article starts from the reasonable assumption that the implementation of the base erosion and profit shifting (BEPS) project increases legal uncertainty in tax matters. The shift from the isolated and bilateral exercise of taxing jurisdiction to international tax coordination in the framework of the BEPS project is not accompanied by a corresponding global convergence in the exercise of legal remedies, which remain confined to their national boundaries. In line with their previous research, the authors address hereby the right of taxpayers to an effective legal remedy under European tax law, taking into account the dialogue among Courts in respect of legal values contained in national Constitutions of European Union (EU) Member States, the EU Charter of Fundamental Rights and the European Convention on Human Rights. The focus is on the right to an effective legal remedy in cross-border tax procedures, with special emphasis on mutual agreement procedures and mutual assistance. The authors suggest a two-tier mechanism with the involvement of taxpayers and tax authorities, which allows for an effective exercise of the right of defence and does not require major changes in the wording of treaty clauses modelled after Articles 25 and 26 OECD MC. Hopefully, something that other international institutions, including the United Nations, may consider for the future. The authors suggest filling this gap with their proposal for a BEPS Action 16.
11
Szymacha, Adam. "Fundamental Rights and the Obligation to Publicly Disclose Information on Tax Strategy." Finanse i Prawo Finansowe 4, no. 32 (October 27, 2021): 7–20. http://dx.doi.org/10.18778/2391-6478.4.32.01.
Анотація:
The aim of the article: The presented study concerns the problem of violations of fundamental rights caused by the law regulation contained in art. 27c of the Corporate Income Tax Act in Poland. This regulation provides obligation to publish information about introduced tax strategies. Yet, it may endanger many human rights and this article focuses on two of them – the right to remain silent, and the right of privacy. The aim of this article is to make an analysis of the standards presented by the Court of Justice of the European Union and the European Court of Human Rights. Additionally, the standard presented by the Polish Constitutional Court is presented. Methodology: To decode these standards the comparative law method is used. Especially the case laws of these courts are presented and additionally, they are completed by the comparison of the acts that concern similar law institutions but come from different lawmakers. Results of the research: The results of the study do not provide a clear answer. However, they do allow for an approximation of the issue of possible violations of fundamental rights by the analyzed regulation. It is very likely that the analyzed regulation violates the right to remain silent and it is even close to certainty that the analyzed laws violate the right to privacy. The problem is not only the interference in these rights, but in its character as well. Under certain circumstances, interference with fundamental rights is acceptable but must be proportionate. Examined laws are only explained in terms of budgetary balance and the academic world points out that the purpose of this type of regulation is mainly of administrative convenience. This is far too little to consider this interference with fundamental rights imperative.
12
Poelmann, E., and J. Baron. "Tax Penalties: Minor Criminal Charges?" Intertax 45, Issue 12 (December 1, 2017): 816–21. http://dx.doi.org/10.54648/taxi2017071.
Анотація:
In European Court of Human Rights (ECtHR) 15 November 2016, No. 24130/11 and 29758/11, (A. and B. v. Norway) the Jussila-doctrine was repeated once again. The ECtHR seems to have taken the next step in the discussion whether the criminal-head guarantees of Article 6 ECHR and other fundamental rights of the Convention should not apply in the same manner concerning tax fines as they do with ‘hard core criminal law’. However, as shown in ECJ 26 February 2013, C-617/10 (Åkerberg Fransson), the European Court of Justice (ECJ) is currently on a different path. In case C-524/15 Advocate General Campos Sánchez-Bordona has advised the ECJ to stay on its present course and not to follow the ECtHR. In this article the authors discuss the different approaches of the ECtHR and the ECJ.
13
Peeters, Bart, and Zhe Chen. "Article: A Study on the Protection of Taxpayer Rights in an Era of Enhanced Exchange of Information: How Can the Chinese Approach Be Improved?" Intertax 50, Issue 8/9 (July 1, 2022): 579–603. http://dx.doi.org/10.54648/taxi2022058.
Анотація:
This study explores taxpayer protection under the exchange of information (EOI) in China. From a comparative study between Chinese law and European law in general (combining EU law and the ECHR as interpreted by the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR)), possible improvements for the Chinese approach are suggested. The protection of taxpayers’ rights is divided into three different layers: confidential treatment of personal data, involvement of the taxpayer in the EOI-processes, and the right to remedy of taxpayers that have been treated incorrectly. Within these layers the study recommends to provide additional measures to attempt to effectively address data leakages or unjustified use of them, improved passive and active access for taxpayers into the EOI-process, and ex ante and ex post remedies in the event of violations. Cross-border exchange of tax-related information, taxpayer rights, data protection, privacy and information confidentiality, taxpayer participation under the EOI, effective remedy, Chinese law, European fundamental legal principles.
14
Purpura, Andrea. "Case Law Note: Protection of Taxpayers’ Personal Data and National Tax Interest: A Misstep by the European Court of Human Rights?" Intertax 49, Issue 12 (December 1, 2021): 1044–55. http://dx.doi.org/10.54648/taxi2021105.
Анотація:
The relationship between taxpayers’ privacy, tax law, and tax assessments carried out by national financial administrations is extremely debated. It is because, at the base of every possible consideration, there would seem to be essentially one question: What is the limit to the achievement of the national tax interest? It is possible to imagine, in the era of digitization, that the disclosure of taxpayers’ personal data does not represent a limit to the taxation interest of the state both when this has the purpose of prevention of tax evasion or whether it involves the protection of commercial relations between economic operators? These are some of the questions that emerge from reading the Case of L.B. v. Hungary issued by the European Court of Human Rights (ECHR) on 12 January 2021. Here, in fact, the court considered the conduct of the Hungarian tax authorities that has materialized in the publication on its website of the personal data of Hungarian tax evaders compatible with the European Convention on Human Rights, and specifically with Article 8. VAT, deductions, input tax, expenditure, third parties, discontinued investments, case Mitteldeutsche, case Vos Aannemingen, case Sonaecom.
15
Kowalski, Patryk. "Article: Statistical Picture of the European Court of Human Rights’ Tax-Related Cases Containing Separate Opinions." EC Tax Review 32, Issue 1 (January 1, 2023): 26–37. http://dx.doi.org/10.54648/ecta2023004.
Анотація:
The aim of the study was to select tax-related cases from the European Court of Human Rights (ECtHR) case law in the years 1959 – 2020 and analyse all such cases using empirical legal studies method, focusing mostly on separate opinions. This analysis led to the selection of research material covering 176 tax-related cases (179 judgments, sixty-nine separate opinions). The most important research findings include, e.g., small number of ECtHR judgments in tax matters, low frequency at which they are issued, the fact that judges submit separate opinion more frequently in a situation when a judgment finding no violation is delivered rather than when a judgment finding violation is delivered. Moreover, the article contains an extensive review of the literature with regard to the undertaken subject. separate opinion, dissenting opinion, concurring opinion, tax-related cases, empirical legal studies
16
Perrou, K. "Case Law Note: The Application Of The Eu Charter Of Fundamental Rights To Tax Procedures: Trends In The Case Law Of The Court Of Justice." Intertax 49, Issue 10 (October 1, 2021): 853–61. http://dx.doi.org/10.54648/taxi2021083.
Анотація:
An increasing number of taxpayers rely on the EU Charter of Fundamental rights to challenge various aspects of tax procedures. However, not all cases are included in the scope of application of the Charter; an association with Union law is required. For VAT cases or for complaints relating to the direct application of provisions of EU directives, it is relatively easy to identify such association. This is not always as easy with cases involving direct taxation or those related to the application of purely national legislation that may, however, be a corollary to Union law provisions. For cases that do not have a connecting element with Union law, protection may be granted under the European Convention on Human Rights (ECHR). Tax procedures, however, are only covered by the ECHR if they relate to a criminal charge, leaving a significant number of normal tax proceedings beyond the scope of fair trial guarantees. The different scope of application and ambit of protection granted by the two instruments might lead to disparities in taxpayer protection. The entry into force of an advisory opinion mechanism before the European Court of Human Rights, similar to the preliminary reference procedure before the Court of Justice, may enhance taxpayer protection in the EU. The latter option, however, is to be used with caution: although referring a case that involves Union law to the ECHR is not expressly prohibited, it could arguably amount to a violation of Union law. Tax treaty, nonresident alien, federal tax exemption benefit, case law precedents.
17
Endresen, Clement. "Taxation and the European Convention for the Protection of Human Rights: Substantive Issues." Intertax 45, Issue 8/9 (August 1, 2017): 508–26. http://dx.doi.org/10.54648/taxi2017043.
Анотація:
When the European Convention on Human Rights (ECHR) was agreed, clearly it did not apply to substantive tax issues. The author aims to show that there is nothing to suggest that the inclusion of the protection of property rights in paragraph 1 of the First Protocol to the Convention represented a change in this respect. In spite of this, there is in the literature considerable enthusiasm for the notion that the Convention is also important as regards this issue. The author examines the jurisprudence of the European Court of Human Rights (ECtHR) in cases which involve substantive tax issues, and argues that the Court, with the help of the concept of an extraordinary margin of appreciation, has indeed shown great reluctance towards getting involved in these issues. This approach is applauded, and it is argued that the old notion that taxation is a fundamental part of national sovereignty, is still valid, and that it justifies the restraint shown by the ECtHR. The question of legal security for taxpayers – to the extent that this principle is also relevant to substantive issues – must be balanced against the principle of effectivity. Thus, the solutions to legal security issues in this sphere of the law may well differ from the solutions to parallel questions in other legal contexts.
18
Bahceci, Baris. "Is There a Special Enforced Tax Collection Regime Under the ECtHR Case Law?" EC Tax Review 30, Issue 1 (January 1, 2021): 39–47. http://dx.doi.org/10.54648/ecta2021005.
Анотація:
This article examines the extent to which the European Court of Human Rights (ECtHR) takes into account the privileged nature of tax claims in enforced collection proceedings. Conducted within the framework of the right to property, the aim is to find a response to this question: Does the ECtHR case law allow for a special regime in enforced debt collection proceedings? A definitive answer to such a question requires a comparison between Court judgments on tax debts and non-tax debts. Under both the lawfulness and legitimate aims tests, no distinction appears between these two types of debt. On the other hand, under the proportionality test, the Court generally grants a wide margin of appreciation to States Parties. In this respect, two different dimensions are encountered, namely, the tax collector versus tax debtor and the tax collector versus other creditors. While the ECtHR does not allow differences between the collection regimes of non-tax debts in the former relationship, it appears that in the latter, the Court maintains the privileged status granted to the tax collector in domestic law. However, this privileged status is not unique to tax debts. Therefore, the article concludes that there is no special status for the tax debt enforcement regime under a comparison with non-tax debts. Tax information reporting, Digital platform, Sharing economy, Gig economy, OECD, European Commission
19
Serrano Antón, Fernando. "The Implementation of the Windfall Profit Tax for Energy Providers in Spain: Its Contested Compatibility With European and Constitutional Law." Intertax 51, Issue 11 (November 1, 2023): 781–800. http://dx.doi.org/10.54648/taxi2023074.
Анотація:
This contribution focuses (1) on the legitimacy of the temporary solidarity contribution approved by the Council Regulation (EU) 2022/1854, from a legal perspective considering the use of emergency law; and (2) the European law and jurisprudence in contrast with the Spanish implementation of the windfall profit tax on hydrocarbons providers to sort out its compatibility with the European law. The analysis carried out leads us to maintain some doubts about the legal mechanism used by the EU for its approval, as well as its compatibility with the fundamental freedoms of the EU. We are also critical of the Spanish implementation of the Temporary Solidarity Contribution. Both the Court of Justice of the EU and the European Court of Human Rights (ECtHR) will have the last word. windfall profits tax, energy tax, temporary solidarity contribution, EU tax policy, unanimity, qualified majority voting, Spanish temporary solidarity contribution, equality principle, non-discrimination, proportionality principle
20
TILEY, JOHN. "HUMAN RIGHTS AND TAXPAYERS." Cambridge Law Journal 57, no. 2 (July 1998): 235–73. http://dx.doi.org/10.1017/s0008197398330019.
Анотація:
Is it really worth having all this fuss and bother about the Human Rights Bill? Over the years the Convention has been interpreted to require United Kingdom courts to change their practices in various ways at the personal level, but what about protecting a person from an unjustified demand for tax? Suppose that the Inland Revenue demands tax from you which the courts later determine to be unlawful because the regulation under which the demand was made was not valid. You were not a party to that litigation but you are clearly within the ambit of the decision supplied by the courts. The Inland Revenue then persuades Parliament to deprive you of the benefit of the decision by retroactive legislation, although leaving the actual party to the litigation with the fruits of that enterprise. Is this the stuff on which the judges at Strasbourg will rush to protect the taxpayer from the State? The answer sadly is no — these judges are not going to risk embarrassing the contracting States by making rights bite where that would be expensive: National Provincial Building Society and others v. United Kingdom [1997] S.T.C. 1466. Of course these judges may fear that contracting States would reduce the powers of the court were they do so such a thing; such a fear would not be irrational since the German and UK Governments proposed that direct tax matters should be removed from the European Court of Justice in the sessions leading to the Treaty of Amsterdam. Perhaps a supra-national body is right to be cautious, but what should our own courts do? Once the Convention is incorporated into our domestic law, will our own judges feel a little more strongly about the matter and perhaps grant a declaration that the legislation is incompatible with the Convention? If they have a right to be incensed about the way in which Parliament protects the Revenue at the expense (literally) of the taxpayer, will they do something or will they just couch like lions under the throne of Parliamentary Sovereignty?
21
de Drouas, Delphine, and lsbaelle Sienko. "The Increasing Importance of the European Convention on Human Rights in the Tax Area." Intertax 25, Issue 10 (October 1, 1997): 332. http://dx.doi.org/10.54648/taxi1997063.
22
Fedele, Stefania Lotito. "The Ne Bis In Idem Principle in Tax Law: European and Italian Frameworks." Central European Public Administration Review 18, no. 1 (April 23, 2020): 51–68. http://dx.doi.org/10.17573/cepar.2020.1.03.
Анотація:
In the national and supranational legal area, the need to address the ne bis in idem principle is justified by the growing interest aroused by the most recent pronouncements of the European Courts. The principle prohibits anyone who has already been acquitted or convicted in a previous trial from being tried again. Moreover, it has become a fundamental right enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. The interest in the issue also derives from the need to understand whether the approach of the Italian legal system – or any other similar national order – can be considered compliant with European tax law and case law, based on the definitions of criminal and tax offences. Thus, talking about a European legal space means rethinking the idea of punitive power in a dimension that tends to be ‘solidarity-based’. The State can consider itself impervious to repressive demands from outside but is instead called to cooperate actively to safeguard its own guarantees. The traditional self-referential conception of criminal repression effectively summarised in the expression ‘punitive sovereignty’ gives way to an idea of jurisdiction that draws directly from the principle of mutual recognition. In this scenario, the profile of the protection of the individual from the risk of a duplication of the exercise of punitive power for the same fact in different states assumes the role of the first magnitude. Hence, there is a need to act on two levels at the same time: to seek solutions aimed at resolving possible conflicts of jurisdiction (prohibition of competing prosecutions for the same fact), and to attribute, within each Member State, preclusive effects to the previously judged foreigner (ne bis in idem).
23
Ageev, Stanislav S. "International and Supranational Means of Protection of Taxpayers` Rights within the Framework of Automatic Exchange of Information on Financial Accounts: Experience of the European Union." Taxes 1 (February 18, 2021): 30–35. http://dx.doi.org/10.18572/1999-4796-2021-1-30-35.
Анотація:
In this article the problem of protection of taxpayers’ rights in the context of automatic exchange of financial account information is studied. This problem is a particular case of a wider problem inherent to tax law in general — the problem of finding a balance between private and public interest. The author researches this problem on the example of the European Union since in the EU taxpayers have not only international but supranational remedies as well. On the international level the provisions of tax treaties, the EU Charter of fundamental rights and the European convention on human rights are analyzed. The conclusion on the advantages and disadvantages of each tax treaty is made. On the supranational level the Directive on administrative cooperation and General data protection regulation are studied. Then the conclusion on their influence on national legislation of the EU Member States follows. In the end the ways of improvement of taxpayers’ remedies on the international level are suggested. One of them is the additions to Multilateral convention on mutual administrative assistance in tax matters of 1988 that is currently the only universal tax treaty.
24
Seara, Alberto Quintas. "The Protection of Taxpayers Property Rights in Light of the Recent ECtHR Jurisprudence: Anything New on the Horizon, or Just More of the Same?" Intertax 42, Issue 4 (April 1, 2014): 218–33. http://dx.doi.org/10.54648/taxi2014026.
Анотація:
The relationship between taxpayers' property rights and the wide discretion of the legislature in the tax field has traditionally been discussed, both in domestic and international courts. In this regard, the protection of the European Convention on Human Rights (ECHR) should not be underestimated as is clearly shown in the recent decisions of the ECtHR in the N.K.M., Gáll, and R.Sz. cases where the Court has declared a violation of Article 1 to Protocol No. 1.
25
Orebech, Peter Thomas. "From Diplomatic – to Human Rights Protection: The Possessions under the 1950 European Human Rights Convention, First Additional Protocol Article 1." Journal of World Trade 43, Issue 1 (February 1, 2009): 59–96. http://dx.doi.org/10.54648/trad2009002.
Анотація:
‘Possession’ as defined in The European Convention of Human Rights (ECHR), the First Additional Protocol (FAP) Article 1 resulting from judicial legislation incorporates not only the physical control of assets, but as well rights and benefi ts constituting assets, intellectual property, patrimonial rights, the “right to credit”, “VAT [value added tax] refund”, right to social security benefits, licenses etc. in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment. Clearly, economic rights of different kinds are now part of the human rights arena. A prediction is that a great variety of assets, shares, obligations, futures, factoring, etc. will in the future gain from not only diplomatic protection, but also from direct personal applicability of human rights. The human rights protection according to ECHR, FAP Article 1 – the rights of which should be practical and effective – sets forth a complicated, intertwined, three–step determinative process: (1)The principle of peaceful use of one’s possession[s], which requires the injured party to demonstrate that his interest qualifies as a ‘possession.’(2) A legally valid expropriation and state interference or intervention that turns into a deprivation when it exceeds a minimum level of intensity. In concreto the deprivation must be “in the public interest” and must have taken place “subject to the conditions provided for by law,” and by the “general principles of international law.” Illegal takings do not require a showing of formal, i.e. de jure expropriation. It is sufficient that a de facto deprivation affects the party’s peaceful enjoyment of his or her possessions in a manner that is equal to expropriation. (3) The deprivation must be carried out in the cause of public interest. To be justifi ed or legally justifiable, a deprivation should strike a “fair balance” between the demands of the general interest of the community and the state’s duty to protect the individual’s fundamental rights. If the agencies fail to conduct such a deliberation, the plaintiff has a solid claim. Where the government does not deliberate the merits of the conflicting community and individual claims, it has demonstrably never initiated the balancing process in the first place, which in and of it self breaches plaintiff’s human rights.
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Rojszczak, Marcin. "Compliance of Automatic Tax Fraud Detection Systems with the Right to Privacy Standards Based on the Polish Experience of the STIR System." Intertax 49, Issue 1 (January 1, 2021): 39–52. http://dx.doi.org/10.54648/taxi2021005.
Анотація:
According to the EC estimates presented in November 2018, the so-called VAT gap amounted to approximately EUR 150 billion with organized crime groups largely responsible for its creation. Therefore, it is not surprising that states, while protecting their economic interests, are implementing new measures aimed at detecting and preventing tax crime. Poland is also pursuing this type of activity, and a number of innovative measures in the field of tax law have been introduced over the last few years. One such solution is the automatic system of analysing transaction data from financial institutions (System Teleinformatyczny Izby Rozliczeniowej, STIR). The way this system works – combining the collection of enormous sets of personal data including sensitive information with confidential analytics and composing reports for tax authorities and law enforcement purposes – must raise doubts as to its compliance with human rights standards. In terms of its operation, STIR resembles electronic surveillance systems in other EU Member States; the difference is that, instead of capturing telecommunications data, it aggregates bulk amounts of information on financial transactions. The purpose of this article is to discuss the regulations that establish the legal framework of STIR and to present recommendations on how to ensure its compliance with the privacy and data protection model functioning in the EU. Special attention will be paid to assessing the proportionality and quality of legal safeguards implemented to limit the risk of abuse of power according to standards established in the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). Conclusions drawn from this analysis are not only important from the perspective of the Polish legislature but are also relevant to other countries and EU institutions implementing systems similar to STIR that are interested in developing cooperation between Member States in the area of combatting tax fraud. Right to privacy, tax fraud, transaction network analysis, automated decision-making, VAT gap.
27
Wąsik, Mateusz. "The other side of tax discrimination." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 40, no. 2 (2019): 929–56. http://dx.doi.org/10.30925/zpfsr.40.2.11.
Анотація:
The purpose of the paper is to present the tax consequences resulting from the lack of recognition of registered partnerships and same-sex marriages in certain EU member states, taking the example of Poland. These aspects are usually perceived as discrimination of citizens based on their sexual orientation. The author of this paper has focused on various aspects of possible discrimination, mainly concerning discrimination on the grounds of personal taxation, including inheritance and gift taxes. For these purposes, the author analysed the domestic tax rules differentiating couples living in a marriage and couples without that possibility. These legal provisions have been analysed together with the most recent domestic jurisprudence. Furthermore, the paper presents comparative analyses of domestic rules with EU law. Due to the lack of case-law oriented towards fiscal discrimination due to sexual orientation, the relevant CJEU (the Court of Justice of the European Union, hereinafter: the CJEU) and ECHR (the European Court of Human Rights, hereinafter: the ECHR) case-law have been recalled to reveal possible violations of fundamental freedoms and tax discrimination. The author makes a connection between the lack of proper regulations implemented in the domestic law with the unjustified differentiation of cross-border families on tax grounds. In the long run, only the harmonisation of personal taxation at the EU level can lead to a resolution to this situation. Alternatively, as an interim solution, the relevant ECHR judgment may be of assistance.
28
Groussot, Xavier. "Proportionality in Sweden: The Influence of European Law." Nordic Journal of International Law 75, no. 3-4 (2006): 451–72. http://dx.doi.org/10.1163/157181006779139410.
Анотація:
AbstractThe principle of proportionality constitutes a complex principle that could be seen as the keystone of the general principles of Community law and ECHR. The aim of this article is to demonstrate the influence of European Community (EC) law and the European Convention of Human Rights (ECHR) on the definition and application of the principle of proportionality in Swedish public law from 1996 to 2006. The Supreme Administrative Court has given some indications as to the application of the principle of proportionality, notably as to the importance of the balancing of interests. Interestingly, this Court has also been proactive as to the application of the principle of proportionality in internal law, e.g. concerning environmental law, tax law, administrative licenses. Moreover, the principle has influenced national legislation in many fields. It is argued, finally, that these jurisprudential and legislative developments increase the judicial protection of the individual and also modifies the structure of traditional judicial review by attributing a new role to Swedish national courts.
29
Sadin Esgerzade, Roza. "Avropa Ittifaqında insan və vətəndaş hüquqlarının ümumi prinsipləri". SCIENTIFIC WORK 77, № 4 (17 квітня 2022): 137–41. http://dx.doi.org/10.36719/2663-4619/77/137-141.
Анотація:
The EU, being a complex regional integration body, goes beyond the modern understanding of international organizations. This unique institution has unique criteria and characteristics in the field of human rights and freedoms, as in any other field. The institution of human and civil rights and freedoms in the EU is a key part of the Union's “constitutional law”. In the EU, institutional acts are primarily a source of human and civil rights and freedoms. However, not all rights and freedoms are fully reflected in the institutional acts. These documents mainly refer to “Union citizenship”. Taking all this into account, we can say that the study of the general principles of the European Union is very relevant for our time. Key words: European Union, civil rights, human rights, general principles, integration Roza Sadin Əsgərzadə Avropa Ittifaqında insan və vətəndaş hüquqlarının ümumi prinsipləri Xülasə Aİ mürəkkəb regional inteqrasiya qurumu olmaqla beynəlxalq təşkilatların müasir anlayışından kənara çıxır. Bu unikal qurumun hər bir sahədə olduğu kimi insan hüquq və azadlıqları sahəsində də özünəməxsus meyarları və xüsusiyyətləri vardır. Aİ-də insan və vətəndaş hüquq və azadlıqları institutu İttifaqın “konstitusiya hüququ”nun əsas hissəsidir. Aİ-də institusional aktlar ilk növbədə insan və vətəndaş hüquq və azadlıqlarının mənbəyidir. Lakin institusional aktlarda bütün hüquq və azadlıqlar tam əks olunmur. Bu sənədlər əsasən “İttifaq vətəndaşlığına” aiddir. Bütün bunları nəzərə alaraq deyə bilərik ki, Avropa İttifaqının ümumi prinsiplərinin öyrənilməsi müasir dövrümüz üçün çox aktualdır. Açar sözlər: Avropa İttifaqı, vətəndaş hüquqları, insan hüquqları, ümumi prinsiplər, inteqrasiya
30
Sabbi, Luca. "Country note: The Reasonable Time of Tax Proceedings in the Italian Legal System." Intertax 46, Issue 6/7 (June 1, 2018): 584–93. http://dx.doi.org/10.54648/taxi2018061.
Анотація:
The judicial protection of the taxpayer’s fundamental rights is still not fully implemented in Italy nor even in Europe. Article 6 of the European Convention on Human Rights (the Convention) – with its dichotomy of ‘rights and civil obligations/criminal charges’ – avoids guaranteeing a full and an effective protection. EU law and the EU Charter of Fundamental Rights possess a strong and wider legal force, despite their being effective only within the competences under Article 5 of the EU Treaty. The jurisprudence of the Italian Supreme Court of Cassation currently still tends to exclude the automatic application of the guarantees of Article 6 of the Convention, even in tax penalty matters. In this context, the Italian Constitution and the so-called Pinto Law – which implements the remedy pursuant to Article 13 of the Convention to ensure that proceedings conclude within a reasonable time – should be taken into consideration. Although national legal systems cannot offer less protection than Conventional or EU law, it is entirely possible that national legal systems may provide greater protection than Conventional or EU law. From this perspective, the correct interpretation of Italian legal rules would allow the application of the principle of reasonable duration of proceedings, in the context of purely tax matters.
31
Sydorova, Elvira. "Рeculiarities of legal regulation of tax authorities of public authorities in Ukraine." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 3, № 3 (30 вересня 2021): 331–39. http://dx.doi.org/10.31733/2078-3566-2021-3-331-339.
Анотація:
The article reveals the features of the characteristics of public authorities as subjects of tax relations in Ukraine. It is emphasized that legal personality as a legal nature determines the elemental composition of the tax legal personality of the state and necessarily has three elements - its legal capacity, legal capacity and tort. The latter is a necessary component of the tax legal personality of the state. Taxpayers also have the right to demand from the state certain behavior and apply to the competent authorities (European Court of Human Rights) to apply to the state tax liability measures together with the renewal of their fundamental rights and legitimate interests guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. The study identified the relationship between such concepts as «mechanism of the state» and «state apparatus». The consistent transition from the general to the individual allowed to reveal the internal organizational structure of the system of public authorities as holders of tax powers and to outline the various grounds for their classification. This made it possible to distinguish in this system groups of bodies (a) of general competence, (b) special competence with part of the functions in the field of taxation, (c) special tax competence. The special position of the Verkhovna Rada of Ukraine in the tax sphere is also emphasized and the general tendency to a gradual increase in the scope of tax powers of representative bodies of local self-government is revealed. A distinction was made from related concepts in the field of public law regulation - legal personality, subject matter, jurisdiction, management functions. The tax competence of public authorities becomes a specific manifestation of the category of «competence» as a public law phenomenon, being a mandatory attribute of the tax legal personality of public authorities. In terms of content, tax competence consists of a set of legally established powers of the power entity, which act as functional levers of its actions in the plane of the subject of jurisdiction entrusted to it by the state in accordance with the objectives of tax regulation in the field of taxation. The tax powers of public authorities under these conditions are the specific content of the tax competence of the latter.
32
Poelmann, E. "ECHR Melo Tadeu: A Tax Case Which Should Bring on More Carefully Selected Criminal Procedures." Intertax 44, Issue 5 (May 1, 2016): 434–37. http://dx.doi.org/10.54648/taxi2016035.
Анотація:
The European Court of Human Rights (ECHR) judged in the Melo Tadeu case that the refusal of the authorities to undo the seizure of assets after a criminal acquittal, is disproportional, regardless whether the appeal was too late. The Melo Tadeu judgment implies mainly that the presumption of innocence remains in full force after a criminal acquittal. In this article the author discusses the Melo Tadeu judgment of the ECHR.
33
Bähr, Cordelia Christiane. "Greenhouse Gas Taxes on Meat Products: A Legal Perspective." Transnational Environmental Law 4, no. 1 (April 2015): 153–79. http://dx.doi.org/10.1017/s2047102515000011.
Анотація:
AbstractMeat production and the transport sector contribute almost equally to global warming. However, unlike the transport sector, in terms of climate change policies meat production is relatively unregulated. Many scientists have called for a meat tax as a means of reducing consumption but governments and politicians have not responded. Has the law been an obstacle to the acceptance of a meat tax? To address that question, this article analyzes three examples of European Union (EU) taxes that could be imposed on the consumption of domestic and imported meat, and examines them in relation to the international climate change regime, human rights law, and the legal regimes of the World Trade Organization and the EU. It shows that, if carefully designed, an EU meat tax is consistent with these bodies of law. To address adequately the industrial sectors that give rise to global warming, governments will need to overcome the taboo relating to the concept of a meat tax.
34
Cieśliński, Aleksander. "Dopuszczalność opodatkowania odszkodowania uzyskanego od Skarbu Państwa w świetle standardów ochronnych Europejskiej konwencji praw człowieka." Przegląd Prawa i Administracji 115 (February 26, 2019): 19–39. http://dx.doi.org/10.19195/0137-1134.115.2.
Анотація:
ADMISSIBILITY OF TAXATION OF THE COMPENSATION RECEIVED FROM THE STATE TREASURY IN THE LIGHT OF PROTECTIVE STANDARDS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTSThe purpose of this paper is to analyze the legal admissibility of taxing the compensation received by a commercial company from the State Treasury which is responsible for the damage suffered by the company. Such damage may be caused by State officials in the performance of their duties, including the tax authorities. It seems completely obvious that the victim should expect full compensation. Unfortunately, such sums are classified by the Polish tax law as any other income received by the tax payer and no exception is provided, which results in an actual reduction of its value.However, it may raise serious doubts if one takes into account legal obligations under the European Convention on Human Rights and the well developed case law of the European Court of Human Rights. Even though the Convention is usually not considered to be a legal act that could protect commercial interests of business entities, one should not forget about its very important Article 1 of Protocol 1, providing protection of property also for legal persons. In this particular case, it is not the amount of tax collected that should be seen as the property that has been taken away, as under this provision domestic authorities are entitled to enforce such laws as they deem necessary to control the use of property to secure the payment of taxes. What makes it so special is this context of compensation and that is why an evaluation of the interpretation of the term “possessions” and the appropriate understanding of the essence of the taxpayer’s right is one the major topics of this paper. The biggest challenge, however, is related to the margin of appreciation left to the Contracting Parties as to the measures that might be undertaken for the sake of the abovementioned purpose, especially seeing as in the area of taxation the Court seems to be particularly tolerant. Therefore, special emphasis is put on the principle of proportionality and its meaning for the analyzed case.
35
Jasudowicz, Tadeusz. "Podstawowe trendy orzecznictwa Europejskiego Trybunału Praw Człowieka w sprawach podatkowych." Studia Prawa Publicznego, no. 3 (31) (October 15, 2020): 9–32. http://dx.doi.org/10.14746/spp.2020.3.31.1.
Анотація:
The case-law of the European Court of Human Rights in tax matters has developed in three dimensions. Firstly, it involved Article 1 of the Protocol No. 1 to the Convention with reference to “the payment of taxes”, viewed, notwithstanding the State’s wide margin of appreciation, in the light of the principle of the peaceful enjoyment of one’s possessions. Secondly, from the perspective of Article 6 paragraph 1 of the Convention, tax disputes can be covered by the guarantees of a fair trial where the proceedings and sanctions, for example, concerning tax surcharges, are qualified in their autonomous Convention meaning as a “criminal charge” against the taxpayer. Moreover, despite its traditional case-law, in the last years the Court has seemed to allow the possibility of qualifying tax disputes as concerning “civilrights and obligations” Thirdly, on the basis of Article 4 of Protocol No. 7 to the Convention, the Court has found violations of the prohibition “to be tried or punished again in criminal proceedings” in the context of dual, i.e. tax (administrative) and penal, proceedings. The author critically assesses the Court judgment in the case of A. and B. v. Norway, in which the Court did not find a violation of Article 4 of Protocol No. 7. In the Norwegian case, the distinct administrative and penal proceedings were in fact merged, since the state introduced a system of integrated legal answers to taxpayers’ behavior. According to Judge Pinto de Albuquerque, expressing a dissenting opinion, the Court in this judgment wrongly changed its stance from pro persona to pro auctoritate, possibly forgetting that it is a court of humanrights, and not a pleader of raison d’Etat. Although the Court declared that it considers the Convention “as a whole”, and seeks to ensure the consistency of the Convention system and harmony of its provisions, it might have lost sight of ties existing between them. Taxpayers are also individual humansand have a title to human rights, thus tax disputes are those of a human rights nature. Understandably, the ECHR must persist as a Court of Human Rights.
36
Mëçalla, Jurgen. "The right to appeal for custom sanctions in albania in the perspective of the 13th article of the european convention on human rights." Intercultural Communication 7, no. 1 (December 22, 2022): 127–36. http://dx.doi.org/10.13166/ic/712022.5022.
Анотація:
The right to appeal is a fundamental human right and means the right of the individual to appeal, the existence of a body designated to review the appeal, the unconditional acceptance of the appeal for review, reasonable deadlines for its review, an objective review, judicial control, as a final control over the appeal, as well as the possibility of possible rehabilitation because of the eventual acceptance of the appeal. In this paper we will treat, analyse, and justify why Article 282, point 2 of the Customs Code restricts the right of appeal. This provision, as it will turn out, does not meet the minimum standard for an effective appeal in the domestic courts, set by Article 13 of the The European Convention on Human Rights (ECHR). Fiscal liability that deviates from the principle of equality and proportionality in the exercise of customs and tax authority risks depriving taxpayers of the means necessary to guarantee services that protect fundamental rights. The restriction of the fundamental right to an effective appeal was made by the customs law, Article 282/2, which from the point of view of the law exceeds the limits of this restriction set by the Constitution and the ECHR, where according to Article 17 of the Constitution the restriction must be , in proportion to the situation that has dictated it, so in this sense it must be in accordance with the principle of proportionality.
37
Harkusha, Vladyslav. "Dynamics of legal regulation of exemptions in the payment and calculation of land fees in the conditions of martial law on the basis of judicial practice." Problems of legality 1, no. 164 (May 10, 2024): 135–47. http://dx.doi.org/10.21564/2414-990x.164.290206.
Анотація:
The relevance of the research topic is stipulated by the new challenges faced by our country in connection with the armed aggression of the Russian Federation against Ukraine and the need to adapt the legal regulation of land payment in terms of its calculation and payment during the period of martial law. The purpose of the article is to trace the dynamics of legal regulation of land payment during martial law, and to review the current case law of both national courts regarding the resolution of disputes on the cancellation of a tax assessment notice and the case law of the European Court of Human Rights in terms of determining the conceptual foundations for the construction of legal provisions. The study of the issue of payment and accrual of land payment is of both applied and theoretical nature, since violation of the means and rules of rule-making technique leads to tax disputes. The analysis of legal constructions of the Tax Code of Ukraine and other regulatory legal acts made it possible to identify problems in the regulation of land payment, which consist in violation of the rule of law principle provided for by the Constitution of Ukraine. The Constitutional Court of Ukraine has defined the principles of legal certainty and legal predictability as components of the rule of law. The inconsistency of the provisions of the Tax Code of Ukraine and bylaws has led to a dual interpretation of their rights and obligations by taxpayers and controlling authorities. The author analyzes the positions of the controlling authorities in terms of amendments to the regulation of the calculation and payment of tax liabilities for taxation of land plots located in the temporarily occupied territories or in the territories where military operations are (were) conducted.
38
Alvarez, José E. "The International Law of Property." American Journal of International Law 112, no. 4 (October 2018): 771–79. http://dx.doi.org/10.1017/ajil.2018.72.
Анотація:
On the surface, the two books under review seem to have little in common. The Bonnitcha/Poulsen/Waibel (BPW) book, written by two legal academics and a political scientist, provides a balanced, fact-grounded account of international investment agreements (IIAs) and investor-state dispute settlement (ISDS). This is the “international treaty regime” in that book's title which the authors argue needs to be distinguished from the broader “international regime complex” that their book explicitly does not address, namely the number of other international instruments that at least incidentally also protect foreign investments (including, for example, political risk insurance, tax treaties, certain World Trade Organization agreements, and certain human rights treaties like the European Convention on Human Rights (ECHR)) (p. 7 and Figure 1.2). As one of the encomiums on its back cover page suggests, the BPW book seeks to answer the fraught competing contentions of defenders and critics of the regime that all too frequently generate “more heat than light.” Their book dispassionately synthesizes the available legal, economic, and political literature relevant to understanding the investment treaty regime's oft-proclaimed “legitimacy crisis.” It seeks to supply lawyers needing political context and political scientists needing legal knowledge with the unfiltered facts required to assess whether such a “crisis” exists and, if so, what the ways forward might be.
39
Yadrikhinsky, S. A. "The Doctrine of Legitimate Expectations in Tax Relations." Russian Journal of Legal Studies 5, no. 4 (December 15, 2018): 76–84. http://dx.doi.org/10.17816/rjls18447.
Анотація:
The article deals with the doctrine of legitimate expectations in relation to the Russian tax sphere, which is popular in the European and American legal order. The main idea of the doctrine is the deterrence of the discretionary beginning of public authorities in the implementation of their activities. The promise given by the authorities forms a certain individual expectation, which is subject to protection if it is in the rank of «legitimate». Accordingly, the public authority is bound by this promise and is not free to change or cancel it; there must be a good reason and appropriate justification for making a decision that runs counter to formed expectations. The government must meet the expectations created by it, or at least to minimize the negative effect of the unpredictable deviation from this promise, including through the compensation mechanism. The reverse would mean arbitrary use of power and would contribute to an atmosphere of distrust of the law and the actions of the state. The legal positions of the Constitutional Court of the Russian Federation, revealing the principle of maintaining the trust of citizens to the law and the actions of the state as a form of manifestation of western doctrine in the Russian version. It is concluded that the sovereign rights of the state in the matter of taxation do not make its power absolute. The state is not only the bearer of power, but also the main guarantor of the rights and legitimate interests of the person (taxpayer). It is the legal principles and human rights that underlie his legitimate expectations, define the discretionary limits of powers and criteria of discretion of the authorities and act as a deterrent to the fiscal appetite
40
Baker, Philip. "The Decision in Ferrazzini: Time to Reconsider the Application of the European Convention on Human Rights to Tax Matters." Intertax 29, Issue 11 (November 1, 2001): 360–61. http://dx.doi.org/10.54648/384261.
41
Cannas, Francesco, and Andrea Ballancin. "The ‘DAC 6’ and Its Compatibility with Some of the Founding Principles of the European Legal System(s)." EC Tax Review 29, Issue 3 (May 1, 2020): 117–25. http://dx.doi.org/10.54648/ecta2020038.
Анотація:
The current article has two main ‘centres of gravity’. First, it proposes a critical description of the primary points of the European Council Directive known as the ‘DAC 6’ for which the deadline for transposition into the domestic legislation of the Member States is rapidly approaching at the time of this writing. The description is contextualized in the findings of the Base Erosion and Profit Shifting (BEPS) Project. Subsequently, the authors address some of the main points raised by scholars and commentators with regard to its contents, especially the possibility that the mandatory disclosure rules clash with the professional privilege of certain tax advisors, the principle against self-incrimination, or the risk that it will initiate a ‘race to the bottom’ in the sanctioning powers to be exercised by Member States. Administrative cooperation, Mutual Assistance, DAC 6, Directive 2011/16/EU, Directive 2018/822/EU, Professional Privilege, Self-Incrimination, European Convention on Human Rights, Penalties System, Race to the Bottom
42
Nani, L. "Principles of Regulation of Tax Relations in Romania." Russian Journal of Legal Studies 5, no. 4 (December 15, 2018): 85–92. http://dx.doi.org/10.17816/rjls18448.
Анотація:
The maintenance of a balance between the proper execution of a state’s functions and individual interests is secured by the principles of regulation of tax relations. Such principles are defined by the constitutions and the tax legislations of foreign countries. The modern interpretation of the principles of regulation of tax relations is revealed by the relevant jurisprudence. The present article addresses matters of interest for Russia of the application of principles of regulation of tax relations in Romania. Such regulation is based, particularly, on the principles of legality, certainty and specificity, as well as bona fide of the taxpayer. The principles of proportionality and effectiveness of the EU apply in addition to the national level of legal regulation. The guarantor of the observance of such principles is the court: the biggest part of decisions on tax disputes are in favour of the taxpayer. The article represents an attempt to systematize the distinctive features of the realization of the aforementioned principles in the context of the analysis of the relevant jurisprudence of national courts of Romania (the appeal courts, the High court of cassation and justice and the Constitutional court), as well as of the European Court of Justice and the European Court of Human Rights. The identified distinctive features relate to the following matters: compliance with the constitutionally stipulated procedure of enacting tax laws and elimination of contradictions between secondary legislation and tax laws, inadmissibility of the retroactivity of the law, application of legal methods of ascertaining the risk of taxpayers who are to be verified, as well as compliance with tax secrecy requirements. The article contains examples of jurisprudence in the matter of accountability of a state in civil procedure for the illegal appropriation of funds from the taxpayer in the practice of national courts and of the European Court of Justice.
43
Gyulavári, Tamás, and Gábor Kártyás. "Effective international enforcement of employee rights? Challenging Hungarian ‘unorthodox’ laws." European Labour Law Journal 9, no. 2 (March 20, 2018): 116–43. http://dx.doi.org/10.1177/2031952518763826.
Анотація:
International courts have become a crucial element of protecting employee rights in recent decades. The ‘unorthodox’ 1 measures of the Hungarian Orbán government have provided a unique opportunity to test the effectiveness of international courts, since these national measures have been defying various legal principles in general, but in particular in the field of employment, since acquiring a two-thirds parliamentary majority in 2010. The article analyses the most important of these employment laws, their objectives, problematic legal nature and the responses of the Hungarian Constitutional Court (hereinafter CC), the Court of Justice of the European Union (hereinafter CJEU), and the European Court of Human Rights (hereinafter ECtHR). 2 Are these national and international courts able to ensure effective protection against such policies when they adversely affect workers’ fundamental rights, and if so, on what legal basis? Conclusions regarding unorthodox employment laws, such as termination without cause, the compulsory retirement of judges, a retroactive 98% tax on severance pay, and/or the nationalisation of private pension funds, might be useful to other countries with similar legislative tendencies. The article focuses on the question of whether international courts are able to block and efficiently remedy such national measures and tendencies in employment law.
44
Greggi, Marco. "The Masa Investment Group as a ‘NEC Plus Ultra’ Case for the Application of the European Convention on Human Rights to Tax Law?" Intertax 35, Issue 6/7 (June 1, 2007): 366–72. http://dx.doi.org/10.54648/taxi2007041.
45
Garay, Alain. "Association les Témoins de Jéhovah versus France The Jurisprudence of the European Court of Human Rights on Religious Activities and Taxation Issues." Religion & Human Rights 3, no. 2 (2008): 185–90. http://dx.doi.org/10.1163/187103208x347394.
Анотація:
AbstractAccording to the jurisprudence of the judicial bodies of the Council of Europe, association and financial laws has considerable influence on the fiscal status of religious activities. To a certain extent, it conditions the choice of statutes and juridical structures by religious institutions. At the national level, the tax system in consequence submits the activities in question to particular regulations which have led many religious institutions to opt for elaborate fiscal and legal arrangements, compartmentalized into distinct sectors or into separate structures. Such is the case with the activities of the religious economy sector: publishing, agricultural and vinicultural production, tourism services which require recourse to complex legal and fiscal organizational schemas. A series of examples related to the taxation of religious bodies can demonstrate the extent of some contradictions: – differences of treatment by the national Administrations in refusing tax exemptions or denying religious status to certain movements; – recourse to fiscal controls or audits as a “tactical weapon”. In many countries the debate continues today due to changes in the financial regulations affecting religious activities and discriminatory applications of the principle of equality of religions before the law. This debate is based on the never-ending questions about criteria relying on the historical presence, representative nature and social utility of religions, issues that have been the object of legal distinctions.
46
Taramountas, Konstantinos. "The PPT: The Introduction of a Uniform Standard with an Uncertain Application." Intertax 47, Issue 11 (November 1, 2019): 922–37. http://dx.doi.org/10.54648/taxi2019094.
Анотація:
This essay focuses on the new proposed treaty-GAAR, Principal Purpose Test (PPT), and analyses its potential impact on conduit arrangements from an international perspective. Firstly, it traces the problem of treaty shopping that occurred back in the pre- Base erosion and profit shifting (BEPS) era and, secondly, argues that its increasingly complicated terminology and insufficient guidance to uniformly navigate tax authorities and courts afford opportunities for divergent applications that will undermine the reliance that has been placed on the double tax treaty (DTT) network. This incites concerns about the compatibility of the PPT with the principle of legal certainty which is enshrined in some national constitutions or under Article 1 of the First Protocol of the European Convention of Human rights (ECHR). In this context, the author contends that the signatories of the Multilateral Instrument (MLI) should introduce a number of procedural checks upon the application of the PPT via ‘the conference of the parties’. This should discourage taxpayers from entering into the widest possible range of conduit arrangements but ensure a sufficient degree of foreseeability in order for it to comply with the principle of legal certainty.
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Takahashi, Marta. "MIGRANT INTEGRATION IN EUROPEAN COUNTRIES." DIEM Dubrovnik International Economic Meeting 8, no. 1 (August 2023): 27–37. http://dx.doi.org/10.17818/diem/2023/1.4.
Анотація:
The European Union was created and is founded on values which are the joint heritage and patrimony of the overall development of Europe, namely the ideals of freedom, unity and equality, peace and security, democracy, human and minority rights and the rule of law. The reason why migrants come to Europe is because it is safe, there is more democracy, there is more freedom, more tolerance, but also more social benefits, than in their countries of origin. The EU ensures the social needs of migrants are met through tax revenues. It also specifies the frameworks within which member states adopt the laws constituting the institutional integration infrastructure. Integration is the two-way process of adaptation between migrants and the receiving society, and therefore, the same effort is expected from immigrants who, fleeing conflict and poverty, have found the opportunity to start a new life in the country of immigration. However, many, once settled, do not want to integrate, but rather continue to live in Europe as they did in the countries from where they came. Numerous domicile residents feel that major ethnic changes are changing European culture too quickly, and that this could have unintended consequences, among other things, in terms of the economy. The objective of this paper is to identify the challenges related to migration, increase awareness of the issue, analyze and compare the integration efforts made by EU countries, and highlight the challenges they faced and the outcomes of their initiatives. The study involved comparing data from secondary sources and conducting a meta-analysis of relevant literature. Such research is significant in enhancing the migration process as continuous awareness-raising about this matter is one of the key solutions for embracing the changes in migration that affect us all.
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Verseveld, J. L. van. "With the Wisdom of Hindsight." EC Tax Review 30, Issue 4 (July 1, 2021): 189–98. http://dx.doi.org/10.54648/ecta2021020.
Анотація:
Assessment of the time at which newly introduced or amended legislation takes effect is difficult. This is due to the possibility that some legal rules apply to situations existing before their entry into force. These rules are in principle retroactively applicable. The CJEU evaluates retroactivity of (tax) legislation based on a distinction between procedural and substantive rules. Procedural rules are held to apply to proceedings pending at the time when they enter into force. Substantive rules are usually interpreted as not applying to situations existing before their entry into force. However, retroactive effect must be given to these rules in so far as it follows clearly from their terms, objectives or general scheme. This is to ensure observance of the principle of legal certainty and the protection of legitimate expectations. Violation of these principles is only allowed on legitimate grounds. This article compiles a framework constituting the general principles of Union law and Article 1 First Protocol European Court of Human Rights. This framework can be used to assess whether legal provisions are applicable before their entry into force. The framework is tested with a case study to the retroactive effect of Title III UCC provisions. Retroactive effect, Retroactivity, Legitimate expectations, Possessions, Customs law, Framework, Procedural, Substantive, Article 1 First Protocol, ECHR, CJEU, General principles of Union law, UCC, CCC, Entry into force
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Methven O'Brien, Claire, and Jonas Christoffersen. "The Proposed European Union Corporate Sustainability Due Diligence Directive." Anales de Derecho 40, no. 2 (December 28, 2023): 177–201. http://dx.doi.org/10.6018/analesderecho.590701.
Анотація:
The Proposal for a Directive on Corporate Sustainability Due Diligence (EU) 2019/1937, COM/2022/71 final, 23 February 2022, ‘CSDDD’) if enacted, would extend responsibilities, liability and exposure to administrative penalties to large economic actors for failure to comply with human rights and environmental obligations. The main purpose of this proposal is to establish a binding set of legal norms to increase access to legal enforcement by linking a breach of the due diligence obligation to public sanctions (Article 20) and civil liability. However, as we analyse in this article, the proposal would significantly limit the scope and content of companies' due diligence as compared to the process foreseen by the UN Guiding Principles on Business and Human Rights to which it seeks to give greater effect, while limiting the rights to be protected, and the class of companies obliged to exercise due diligence. At the same time, as we explain, the proposed Directive may jeopardize the integrity of European human rights law as articulated by the judicial and other organs of the Council of Europe, and at the national level La Propuesta de la CE para una Directiva sobre Debida Diligencia en Sostenibilidad Corporativa (UE) 2019/1937, COM/2022/71 final, 23 de febrero de 2022, 'CSDDD'). Si se promulgara, extendería las responsabilidades, la responsabilidad y la exposición a sanciones administrativas a actores económicos más grandes en relación con los derechos humanos y los impactos ambientales. El propósito principal de esta propuesta es establecer un conjunto vinculante de normas legales para aumentar el acceso a la aplicación legal al vincular una infracción de la obligación de diligencia debida con sanciones públicas (Artículo 20) y responsabilidad civil. Sin embargo, como analizamos en este artículo, la propuesta legislativa de la CE limitaría significativamente el alcance y contenido de la diligencia debida de las empresas en comparación con el proceso previsto por los Principios Rectores de la ONU sobre Empresas y Derechos Humanos a los que busca dar mayor efecto, limitando los derechos a proteger y la clase de empresas obligadas a ejercer la diligencia debida. Al mismo tiempo, como explicamos, la Directiva propuesta arriesga la integridad del derecho europeo de derechos humanos tal como lo articulan los órganos judiciales y otros del Consejo de Europa y a nivel nacional.
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Reine-Vītiņa, Agnese. "Personas datu aizsardzības mērķis un tiesiskā regulējuma vēsturiskā attīstība." SOCRATES. Rīgas Stradiņa universitātes Juridiskās fakultātes elektroniskais juridisko zinātnisko rakstu žurnāls / Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 1, no. 13 (2019): 104–9. http://dx.doi.org/10.25143/socr.13.2019.1.104-109.
Анотація:
Mūsdienās tiesības uz privāto dzīvi nepieciešamas ikvienā demokrātiskā sabiedrībā, un šo tiesību iekļaušana konstitūcijā juridiski garantē fiziskas personas rīcības brīvību un vienlaikus arī citu – valsts pamatlikumā noteikto – cilvēka tiesību īstenošanu [5]. Personas datu aizsardzības institūts tika izveidots, izpratnes par tiesību uz personas privātās dzīves neaizskaramību saturu paplašinot 20. gadsimta 70. gados, kad vairāku Eiropas valstu valdības uzsāka informācijas apstrādes projektus, piemēram, tautas skaitīšanu u. c. Informācijas tehnoloģiju attīstība ļāva arvien vairāk informācijas par personām glabāt un apstrādāt elektroniski. Viena no tiesību problēmām bija informācijas vākšana par fizisku personu un tiesību uz privātās dzīves neaizskaramību ievērošana. Lai nodrošinātu privātās dzīves aizsardzību, atsevišķas Eiropas valstis pēc savas iniciatīvas pieņēma likumus par datu aizsardzību. Pirmie likumi par personas datu aizsardzību Eiropā tika pieņemti Vācijas Federatīvajā Republikā, tad Zviedrijā (1973), Norvēģijā (1978) un citur [8, 10]. Ne visas valstis pieņēma likumus par datu aizsardzību vienlaikus, tāpēc Eiropas Padome nolēma izstrādāt konvenciju, lai unificētu datu aizsardzības noteikumus un principus. Nowadays, the right to privacy is indispensable in every democratic society and inclusion of such rights in the constitution, guarantees legally freedom of action of a natural person and, simultaneously, implementation of other human rights established in the fundamental law of the state. The institute of personal data protection was established by expanding the understanding of the content of the right to privacy in the 70’s of the 19th century, when the government of several European countries initiated information processing projects, such as population census etc. For the development of information technology, more and more information on persons was kept and processed in electronic form. One of the legal problems was gathering of information on natural persons and the right to privacy. In order to ensure the protection of privacy, separate European countries, on their own initiative, established a law on data protection. The first laws on the protection of personal data in Europe were established in the Federal Republic of Germany, then in Sweden (1973), Norway (1978) and elsewhere. Not all countries adopted laws on data protection at the same time, so the Council of Europe decided to elaborate a convention to unify data protection rules and principles.