The Contributions of the CJEU and the ECtHR in the Field of Taxpayers' Procedural Safeguards

Thèse de Doctorat , 2023 , 477 Pages

Droit - Droit fiscal

The thesis addresses the challenge to compare both the CJEU and the ECtHR case-laws dealing with issues concerning the taxpayers' procedural rights. Those courts faced the same difficulty to guarantee the European taxpayers' rights while neither the EU Founding Treaties, nor the European Convention on Human Rights include stipulations with sheer fiscal purpose. However, despite that apparent mutism, the Convention and EU law turn out today to be fundamental sources in the field of taxation. Similarly to the CJEU, who impelled the Member States to direct taxation "downward harmonisation", the ECtHR set up a constructive case-law, which unveiled fiscal perspectives over stipulations that have not been conceived originally under such conception. The thesis is focused on the contributions both European courts delivered in the field of taxpayers' procedural safeguards and investigates into the existence of a common corpus: all taxation phases are thus covered, regardless of whether it is in the stage of tax base assessment, tax liquidation or tax collection, but as well and mostly so regarding the administrative oversight and prospective sanctions that could result from. The thesis overpasses its initial scope in order to examine legal tools and reasoning patterns European justices in both courts have put in place in order to give rise to taxpayers' real procedural safeguards.

SUMMARY

INTRODUCTION

FIRST PART: Tax Procedural Rules in the European Case-Law
Title I: Tax Procedural Rules in the Court of Justice of the European Union Case-Law
Chapter I: Guidance over National Tax Procedures
Chapter II: Typology of the Control over Tax Procedures under EU Law
Title II: Tax Procedural Rules in the European Court of Human Rights Case-Law
Chapter I: Broadened Margin of Appreciation in Tax Matters
Chapter II: Effective Control by the ECtHR over Tax Procedures
Conclusion of the First Part

SECOND PART: Taxpayers’ Procedural Safeguards and Substantive Safeguards with
Procedural Impact before the Two Courts
Title I: Taxpayers’ Safeguards Inherent in the Effective Judicial Protection
Chapter I: Safeguards of the Right to a Fair Trial in a Strict Sense
Chapter II: Safeguards of the Right to a Fair Trial in a Broad Sense
Title II: Procedural Safeguards in Criminal Proceedings and Substantive Safeguards with
Procedural Impact in Tax Matters
Chapter I: Procedural Safeguards in Tax-Related Criminal Proceedings
Chapter II: Substantive Safeguards with Procedural Impact in Tax Matters

GENERAL CONCLUSION

INTRODUCTION

The geometrical form able to represent all aspects of the present study appears to be a heptagon. At the centre lie tax procedures in the framework of which come to fruition relationships between fiscal authorities and taxpayers about taxes, seen through the rights and obligations they imply. The force of taxes attracts around itself relationships between States and taxpayers, those between the same taxpayers and the two European courts, as well as interactions between States and those Courts. The procedural safeguards in tax matters are a central object of the aforementioned relationships. The expression “procedural safeguard' is to be perceived as any procedural right or any principle with procedural impact able to protect taxpayers’ fiscal interests so that namely to secure them against whatever kind of infringement a public authority’s actions could give rise to. At the same time, it could be observed in the two European courts’ case-law a certain procedural impact produced by rights of a clear substantive nature invoked before the judges. In line with that, beside procedural safeguards such as the right to an effective remedy, the right to a fair trial, the ne bis in idem and no punishment without law principles, it has to be also taken account of the procedural impact produced by the right to respect for private and family life and the right to respect of property. Those last two rights, despite being substantive in nature, produce as well effects on tax procedures and hence reinforce furthermore taxpayers’ protection. Therefore, it is a question of a peculiar subject whose multidisciplinary essence does not allow a concentrated and concise delimitation.

The present research study falls within the dialectic between principal tools of the European Union’s (hereinafter EU) single market and the Member States’ tax sovereignty. The integrated market’s development faced the states’ prerogative to levy their taxes without external interferences. In order to establish the freedoms enshrined in the Treaties the Member States conceded together a part of their tax sovereignty.¹ But that concession of powers concerns only indirect taxation.² The first of the legal sources related to taxation in the Union could be found in the Treaty establishing the European Community signed in Rome in March 1957. That treaty, which has been subject to modifications since its adoption, provides explicitly for indirect taxation’s harmonisation but does not envision any specific provision with regards to direct taxation.³ What is more, taxation, limited in principle to indirect taxes, remains up until now among those EU action areas where the decision process rests exclusively on unanimity.⁴ Taxation is also one of the Union’s domains where all decisions are still adopted in accordance with a special legislative procedure.⁵ The enforcement of European Union law in tax matters leads to a reconsideration of a number of tax law essential fundamentals and thus of the very principle of the states’ tax sovereignty.⁶ European taxpayers nowadays are not anymore closed within the district of a certain tax sovereignty. Those benefit from the free movement market principles, on the one side, and from the human rights, on the other. From EU common market’s perspective, it is about the prohibition of all forms of discrimination, the observance of the four freedoms of movement (of goods, capital, services and people), the solidarity and unity within the Union.

On another note, taxpayers benefit at two European levels from two separate catalogues which guarantee their fundamental rights - the Charter of Fundamental Rights of the European Union (hereinafter the Charter/EU Charter) and the European Convention on Human Rights and Fundamental Freedoms (hereinafter ECHR/the Convention).⁷ In order to be achieved an efficient functioning of the single market, EU law provides for a ban of any restriction in terms of indirect taxation⁸ and for resorting to legislations’ approximation in tax matters.⁹ If the success was fast­paced and consequent in the field of indirect taxation and in particular of value-added taxes (hereinafter VAT), that was not the case in direct tax matters, namely owing to a requirement of unanimity.¹⁰ With regards to direct taxes the Union endeavors to achieve elimination of all kinds of double taxation by means of four directives and one multilateral agreement.¹¹ It must be noted however that behind those efforts conceals itself again the very cause of the common market. In addition, tax cooperation mechanisms on administrative and political basis enable tax information to be exchanged, a mutual assistance intended to tax debts collection to be organised, a harmful tax competition to be fought, an aggressive tax planning to be prevented and “a good governance in the tax field' to be encouraged within as well as outside the EU.¹² Meanwhile, taxpayers who exercise their economic rights within the single market enjoy also fundamental procedural rights or such with procedural impact as the rights to an effective remedy, to a fair trial, not to be tried or punished twice in criminal proceedings for the same criminal offence or of no punishment without law, to respect for their private and family life and to respect of property. All those taxpayers’ economic freedoms and fundamental rights are secured to them by courts sitting in a hierarchical order that places their jurisdictions atop national states - the Court of Justice of the European Union (hereinafter CJEU) and the European Court of Human Rights (hereinafter ECtHR). What is more, a tax residence in a Member State within the single market implies that each state can exercise its fiscal sovereignty, including over direct taxation, only in keeping with Community’s freedoms.¹³ Consequently, in direct tax matters states’ sovereignty remains full as long as being in accord with EU law.¹⁴ Nevertheless, in principle all states show themselves extremely sensitive when it comes to taxes and procedures since fiscal systems constitute a material ground which allows funding of other public systems - education, public health, security and defence etc. Along with budgets, taxes fill the eyes of states since on them depend eminently political choices with regards to which account must be given for to citizens.¹⁵ Similarly, Member States’ authorities are also solely responsible for tax collections, as well as for fiscal controls on their territory where they must be able to cover their budgetary needs. In reality States and their tax systems, on the one hand, and the European Union and its common market, on the other, constitute apparatuses pursuing different purposes.¹⁶ EU law is the common market’s law where tax law is the state’s law. If European authorities intend to promote trade exchanges and foster the development of free and fair competition, national authorities aim at covering their public charges and carrying out economic and social policies relying on fiscal tools. The first place themselves in an economic rationale, whereas those latter follow political and social logics. EU law is built on its underlying cause to favour development of an integrated market devoid of internal borders, whereas its Member States, separated by their external fiscal borders, have to procure themselves financial incomes and tackle tax evasion and avoidance while at the same time remaining fiscally attractive, at times even to the extent that they engage in harmful tax competition.¹⁷ The encounter between those two systems arouses paradoxes. That is due to the fact that national and common interests are interdependent.¹⁸ Thus, national taxes are directly dependent on the state economic development which is similarly among the most interested by the health of a market, which yet for its part is boosted more than ever by the economic integration driven by the Union. Against that background the European courts in Luxembourg and Strasbourg share a similar fate in their missions to reconcile different objectives. Those two are called upon in tax matters to persistently find equilibrium between taxpayers’ private interests and public interests represented by tax authorities, in other words - between consumers and society. The common market’s evolution depends on that balance and any better alternative hasn’t been found thus far. In addition, said equilibrium is sought in legal cases on a vertical axis at first sight quite simple, but actually hard to anticipate always its in-depth effects. Around those axes are set against one another states’ tax interests, on the one hand, and taxpayers’ interests, on the other, the latter being protected at European level by economic freedoms of movement and human rights.

On another note, at supranational level the relationships between the Court of Justice and the ECtHR aren’t neither clearly defined but are in a constant dynamic evolution. Their interaction is aimed at establishing an equilibrium between economic interests and human rights in order to counterbalance also in a fair manner the relations between tax authorities and taxpayers which correspond rather to the respective interests of states and the EU single market. All those balances are sought on the field of tax procedures and relate hence directly to the European taxpayers’ procedural rights and obligations. The necessity to be achieved such legal and political equilibrium stems from the fact that the Member States of the two European systems have not settled a priori and in concert their interests in order to find thus an overall compromise in the fiscal domain. They have not agreed beforehand on the inception of a power in favour of the supranational courts over national tax procedures. Such a judicial power involves in principle concession of tax sovereignty from states insofar as any control over a fiscal procedure leads inevitably to implications over substantive prerogatives of tax authorities. The European Union, at the heart of which lie economic inspirations, appears to be a more appropriate field in particular for a fiscal subject-matter rather than the area of the ECtHR so as to be observed in an initial plan the evolution of the evoked phenomena.

In the past decades EU law significantly enriched and relates today to multiple domains.¹⁹ Throughout the various periods of the Community²⁰ fiscal rules take increasingly a more noticeable place in the CJEU’s judgements.²¹ Its case-law deals with an abundant variety of tax issues coming out from fiscal law that pass over indirect excise taxations and VAT, but also affecting specific situations of direct taxation regarding individual taxpayers as well as companies fiscally liable within the Union. The spectacular evolution of the European case-law generates remarkable sentiments notably so far as it concerns legal situations considered until recently as internal for the Member States. That is the case for personal wages and capital incomes taxation of European citizens, corporate income tax liability for transnational incomes, fiscal issues related to corporate groups, as well as for taxation schemes pertaining to mergers and transfer taxes.²²

At the same time, the progression of Community law on fiscal matters does not limit itself only to substantive tax law, but quite the contrary - it sees itself surrounded by a jurisprudence issued by the CJEU that brings to the fore a commitment assumed in a conscious and firm manner, the scope of which defines gradually the contours of a common basic system that does not miss to affect all Member States of the Union.²³ In particular the dynamic integration of those states implies a parallel jurisprudential development of Community tax law both on substance and form. However, it should be borne in mind that the observed phenomena in EU law reaffirm the independent nature and existence of procedural rules in relation to substantive rules.²⁴ Moreover, procedural law enjoys a certain autonomy which two facets articulate around two standpoints - against substantive rules, on the one side, and with respect to specific procedural rules, on the other.²⁵ Having regard to the jurisprudential development of EU law in tax matters, il could be considered that such specific procedural law consists of procedural principles and rules developed and set out in the name of substantive purposes. In that sense it should be clearly understood that every procedural system is autonomous to the extent that it constitutes a set of reasoning, vocabulary and thus of rules.²⁶ Such a set of rules of the Community’s system constitutes also the Charter of Fundamental Rights. Taxpayers draw directly from it their rights to an effective remedy and of access to an impartial tribunal, not to be tried or punished twice in criminal proceedings for the same criminal offence, of respect for the principles of legality and proportionality of criminal offences and penalties etc.

EU law represents a separate legal order built on the basis of concepts and definitions that are unique to it.²⁷ That is a point of departure for acquisition of a clearer insight into the existence of Community’s public order, conceived as a set of objectives and specific means, which once established is to be observed by all Member States.²⁸ The development of the Community’s order, the most elaborated pivot of which leads to economic stakes,²⁹ is diversified and progressive and follows the overall integration process.³⁰ More said order advances, more the achievement is jealously defended by the Union’s institutional incarnations. In order for that order to be completely nested and then adhered to, EU law necessitates implementation of procedures to ensure it. A procedure is a sequence of actions and formalities which must lead to taking of a decision, as well as rules and principles governing that sequence.³¹ In the core of tax procedures, at underpinning level, reside interests of taxpayers and tax authorities, those interests being manifested by their substantive rights.

Notwithstanding the Community acquis in the field of substantive tax law, similarly to direct taxation, tax procedural rules do not escape as well from the requirement to comply with EU law. Such apprehension applies par excellence to rules emanating from the Community legal order, but also to those that are, or rather were, internal for the Member States’ legal systems. In principle procedural tax rules reflect a diverse reality which yet allows to separate them generally in two groups.³² They govern, on the one side, the administrations’ powers and the taxpayers’ rights in the process of taxation, the stages of which pass compulsorily through tax base evaluation, tax calculation and settlement, and, on the other side, pre-contentious and litigation phases set up for tax disputes’ resolution.³³ Nevertheless, the autonomy of tax law compels to be assigned to tax procedures some virtues that do not relate solely to traditional tax law. Thus, procedural features are also to be taken into account in the light of taxation at European level. In line with that through a civil prism could even be examined actions for recovery of sums paid but not due and claims for damages, execution proceedings for collection of tax debts and even rules governing retroactive tax levy, tax proceedings for search and seizure, for collection of fiscally relevant data and for tax intelligence exchange. Similarly, on the criminal field tax procedures might affect issues relating to tax liability, the fullness of jurisdiction of state authorities called upon to pronounce themselves on tax penalties and surcharges, the presumption of innocence and self-incrimination of taxpayers. In any event, tax litigations focus mainly on the access to an effective remedy before a national authority, the burden of proof and the appraisal of evidence, the equality of arms, the contradictory nature of litigation proceedings, the independence and impartiality of courts and tribunals, the reasonable time of proceedings, the justification of judicial acts, the access to legal assistance, as well as to the necessity to be held a public hearing during tax litigations.

The place which the European taxpayers occupy in the CJEU’s case-law is intrinsically conditional first and foremost on the role granted to the Union in the general redistribution of fiscal competences.³⁴ Therefore, it seems more appropriate to be addressed the horizontal allocation of powers within the EU, which represents a gradation of a five-level scale composed of abolished, conferred, guided, coordinated and reserved competences.³⁵ Thus, it is widely accepted that Member States’ fiscal policies could not be unfolded unless that is done in strict compliance with the duties following from the membership in the EU.³⁶ The Treaty of the Functioning of the EU (hereinafter TFEU) constrains the Member States to ensure that their legislations are in compliance with the common rules for unification and harmonisation of tax arrangements, while the rest, out of the Community’s scope, is subjected to the national competences but only if exercised in line with the principles of EU law.³⁷ In that regard it is well conceivable why indirect taxation, comprising VAT and excise taxes, is subject to Community’s rules targeted at harmonisation and unification,³⁸ whereas direct taxation is overseen under the general requirement to be consistent with the EU’s common market.³⁹ Said guidance is in continuous development, poorly predictable and for that reason in an intractable collision with the principle of conferral regarding the allocation of powers. The redistribution of competences embeds a traditional formula for allocation of prerogatives between the Union and its Members States, under which the national competences remain the rule while the Community’s authority falls within the exception.⁴⁰ That clearly explains why the figure of the taxpayer stays finally a national concept.

The “evolutionary trend’ in the CJEU’s case-law, affecting substantive tax law and linked primarily to direct taxation, draws its reasoning legitimacy mostly from the freedoms of movement by conjugating them through the general principle of non-discrimination based on nationality. Those freedoms are set up as principles of Community law and taxpayers are among their prime beneficiaries.⁴¹ On the other hand, the Court disposes of a certain flexibility in the usage of its interpretative tools towards reconciling the various interests of national legal systems. A fulcrum for that purpose are general principles such as those of proportionality and legal certainty in all their forms and manifestations - the principles of legitimate expectations and of non-retroactivity, as well as the typification of delinquent behaviours.⁴² The principle of legal certainty is in fact encouraged by EU law, as well as by ECHR law, the jurisprudential developments of which considerably impact the states’ internal legal systems.⁴³ In that regard, the most progressive amongst the indicated general principles are those identified by the CJEU, which enables in turn the Union to curve its policy in a certain sense or in accordance with certain values.⁴⁴ Therefore, assuming the role to be a driving force of Europe, the CJEU establishes general principles able to guarantee genuine Community protection over fundamental rights,⁴⁵ from which taxpayers also profit. The Court of Justice sets forth the principle of the absolute primacy of entire Community law over anterior or posterior national law.⁴⁶ The primacy inevitably implies procedural effects, since “based on the indispensable equal application of Community law: ... issued by an autonomous source - says the Court of Justice - that law could not vary from one state to another in favour of ulterior internal legislations without jeopardising the achievement of the Treaties ’ purposes, nor cause discrimination they prohibit”.⁴⁷ The Community’s principles perform their lead role in the CJEU’s case-law dealing with tax procedures. They contribute so that Community law, the same way it lays down obligations for taxpayers, becomes a source generating rights that benefit their legal status.⁴⁸ Thus, the EU law Treaties, regulations and general principles shape a legal order that weaves into internal legal systems.⁴⁹ That nesting of normative sources compels the national judges to control the compliance with taxpayers’ procedural safeguards drawn from EU law.⁵⁰ In order those safeguards to be unequivocally exercised, other principles are involved, such as the uniform interpretation,⁵¹ the rights of the defence, the right to justice, the protection against arbitrary administrative treatment, but in general terms, the full range of individuals’ fundamental rights as constitutional traditions common to the Member States.⁵² Those principles constitute in fact a “Community supra-legality”.⁵³ They bind the Member States for each action falling within the scope of EU law and a fortiori undertaken thereby in application of it. The general principles, without regard to whether they originate or not from the CJEU, have normative force in that they create correlative rights and obligations.⁵⁴ The jurisprudential vigor and the force of values it radiates end up threatening the coherence of the states’ orders insofar as the national legal systems find themselves significantly complicated.⁵⁵ What further contributes to that is the Charter in its effort to formalise EU fundamental rights and general principles. The Charter opens thus officially the gate towards a completely new dimension - the parallelism between the Community’s order and the ECHR’s order regarding fundamental rights. Albeit until 2007, when the Charter acquires legal value by virtue of its mention in Article 6 of the Treaty on European Union (hereinafter TEU), the Court of Justice relied heavily on the Convention and the Strasbourg Court of Human Rights case-law, over time it emphasised in its jurisprudence the autonomy and primacy of the Union’s system of fundamental rights protection.⁵⁶ For the European taxpayers who are residents in a Member State that system of protection represents an independent complementary source for their procedural safeguards. Thus, put on an equal footing, both European systems of fundamental rights protection give at the disposal of taxpayers the unique option to conceive strategies of tax defence which were inconceivable in the recent past.

The ECHR became a defence tool in the hands of the European taxpayers. The Strasbourg court has a monopoly over the Convention’s interpretation becoming thus a necessary “institutional creation” for human rights’ efficient implementation and effective observance.57 Because the Convention rose as a common baseline standard,^{57 58} its application inevitably entails standardisation of the legal systems of the states that have adopted it, as well as of their taxpayers’ status.⁵⁹ It is, in fact, a legal pattern. Besides, it is the Convention’s system where states integrated themselves and the standard of which they assumed.⁶⁰ The notion “standard’ is to be construed in a broad sense as an “average measurement of a correct social conduct”.⁶¹ The determination of such a measurement supposes to be identified a reference criterion, which for its part raises questions about the limits of the methodology used.⁶² In that regard the Convention is deemed to be an instrument that brings the Contracting States’ legislations together around a minimal standard of protection.⁶³ Within the EU the Charter confirms it: the Convention is a minimum, the CJEU may go beyond but never below it.⁶⁴

The ECHR is an act falling within the scope of public international law. Referring to the most widespread classification of international treaties - depending on the number of parties to the agreement - by its nature it constitutes a traditional multilateral accord in terms of classic international law.^{65 66} However, unlike international agreements which are simply reciprocal treaties between states, the Convention is a “constitutional instrument of a European public nature in the field of human rights” that establishes “a chain of bilateral mutual commitments... [and]... unbiased obligations”.66 What is more, “the international protection of human rights [...] penetrates the very heart of the sanctuary of sovereignty - the relationships between state authorities and people, i.e., between two of the building blocks of each state”.⁶⁷ It comes all the more namely to sovereignty when relations between taxpayers and their state of residence for tax purposes are involved. In that sense, it is not the international public order that provokes legal interest, but the phenomenon that the Convention creates on its own a legal and judicial order. It is about the regulatory system based on it and represented on the whole by the primary and secondary rules it contains.⁶⁸ Within that system there is no hierarchical order between the different rights those rules embed.⁶⁹ The Convention institutes an international system of protection, the originality of which is owing to the fact it constitutes the most successful model in the area of fundamental rights that are internationally safeguarded through specific judicial control.⁷⁰ The Convention being a reference standard, it should be stressed that on the top of the order based on it stands a sole and unique supreme authority incarnated by the European Court of Human Rights. Even more important, that instance adjudicates more and more legal cases on tax matters strengthening thus irreversibly its protection over the European taxpayers. Il should be reminded in that regard that in its original version, entered into force on 3 September 1953, the Convention does not mention the term “tax”. That notion is used for the first time at a later stage and even in an additional protocol that enters into force on 18 May 1954. Furthermore, the word “taxes” appears only once. That clearly explains why in its case-law mostly until the 1990s the ECtHR had very little interest in taxation matters and also why it was namely the Court that developed European Human Rights Tax law, the sources of which are subject to the present research study.

Before engaging deeply into the universe of that fundamental rights’ legal order and to better understand its heterogeneous entanglement with the EU judicial system as regards taxpayers’ safeguards, some specific observations should be noted. That protection system has as a sole statutory source the Convention and its additional protocols.⁷¹ They represent the original law of the Convention order for human rights protection. To them belongs the case-law of the ECtHR which is their main interpreter.⁷² The interpretative primacy is vital for uniform application of the Convention.⁷³ The latter is a “living instrument” that is to be read in the light of the contemporary living conditions.⁷⁴ Its interpretation by the European judges is evolving and dynamic.⁷⁵ In that sense, the ECtHR’s rulings are not binding precedents, that Court having never adopted such a doctrine.⁷⁶ Unlike the EU, the Convention’ s legal order is not endowed with own specific and independent political legislative bodies. Leaving aside any international intervention, within the isolated functioning of the observed system, the safeguard policy is implemented exclusively by means of judicial protection. And it should be stressed that its objective is not uniformization, but the achievement of a minimum standard for human rights protection.⁷⁷ In that respect, it is a question of approximation between the states within the system or rather of their “conventionnalisation”.⁷⁸ And from there on emerges the idea any competition between legal orders - national, Community and Convention-based - to convert into real complementarity.⁷⁹ The Convention and the Court that provides its impetus are both a very strong trigger for convergence of the Contracting States’ legal systems,⁸⁰ and from there, for their taxpayers’ rights. In that context, taxpayers’ fundamental rights are guaranteed by the Convention’s vertical effect which allows to protect their legal status against any interference from public authorities.⁸¹ As it is used to say that each national judge is a “Community judge of common law”, it is also true that the same judge is as well a “Convention judge of common law”.⁸² It is obvious that for both European systems the role of national judges is crucial, those being in reality their “natural judges”.⁸³ At the same time, within the Union the national judges remain in principle the ultimate instance that protects the rights of taxpayers, those latter not being entitled to bring proceedings before the Luxembourg Court on their own but virtually in exceptional circumstances.⁸⁴ By contrast, the Strasbourg Court hears litigations initiated directly by taxpayers before it. That remarkable right is laid down in Article 34 of the Convention entitled “Individual applications”, which states that the Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties. According to the same article the High Contracting Parties undertake not to hinder in any way the effective exercise of that right.

To continue drawing parallels, the European Union is devoted to set up far more expansive political framework.⁸⁵ There stand notably fiscal policies. The Community legal order has in particular the objective of governing the Union’s policies implementation above all through the medium of structural and situational policies’ development, as well as via activities’ roll-out for administrative management. The Community order is also endowed with a judicial instance programmed to safeguard it. The Luxembourg Court draws on too its supranational legitimacy as a result of the concession of judicial sovereignty that the states sacrificed for that purpose.

However, it has to be borne in mind that taxpayers’ fundamental rights within the Union’s legal order find themselves in a system, both the existential rationale and rationality of which are quite distinct from those of the ECHR’s system.⁸⁶ The purpose of the EU is “economic integration, so that even if the European public authorities are required not to interfere with fundamental rights, their spectrum of apprehension emanates foremost from the point of economic integration”.^{87 88} What is more, “whereas within the Convention’s order the exercise of a fundamental right is apprehended as a principle, it is done so in the Union’s order as an exception, which requires necessarily [...] the said exception to be strictly interpreted ’.88 The political framework where a judicial entity is instituted determines also its role as a policy maker, which the same body inevitably performs by its interpretations, without however substituting itself for the genuine political authorities.⁸⁹ In that sense, if the objectives pursued by the fundamental rights and freedoms contained in the European courts’ seminal treaties are similar in that they aim at limiting public authorities, still their specific purposes differ.⁹⁰ The perceptive discrepancies between the Court of Justice and the ECtHR are owing mainly to their belonging to institutional ensembles of profoundly dissimilar natures.⁹¹ If the CJEU is not, no more than other institutions created by the Treaties, at the heart of the Community mechanism, being thus only one of many wheelworks, the ECtHR is, by comparison, a primary tool for human rights protection system that has become predominantly judicial and which is not intended to exercise other competences conferred on it by states,⁹² such being in particular taxation. The Strasbourg Court is thus both more autonomous, that is to say self-contained, and unconstrained, that is structurally less accountable for the political, administrative and economic consequences of its judgements, than is the Court of Justice.⁹³ At the same time, albeit the latter repeatedly declaring in public conferences that it is not a human rights tribunal, it gradually evolved from a Court mostly committed to economic issues into a judicial body in charge of far more extensive jurisdiction that comprises at present the enforcement and endorsement of such rights.⁹⁴ Therefore, the jurisprudential developments of the CJEU and the ECtHR. are, in a manner of speaking, reciprocal insofar as their intersection point is the figure of the European taxpayer.

Just like the CJEU’s jurisprudence, the ECtHR’s case-law saw as well an enormous progression on the tax field.⁹⁵ The ECtHR’s system covers though under its scope 47 internal legal orders,⁹⁶ compared to the 27 within the EU. When the ECtHR rules on a case it establishes thereby an interpretative doctrine that does not concern only the case at stake, nor even the state involved, but all 47 separate legal orders.⁹⁷ With regard to those latter each branch of law is influenced by the ECtHR’s jurisprudential doctrine, including fiscal law. The differences so defined in the scales of both supranational orders, overlapping in part⁹⁸ in terms of quality and quantity, suppose as a first step the use of a single research method - a meticulous observation of case-law grounded on the Convention. That approach enables as a consequence an analytical study on the delicate dialogue between both European courts that resulted in judicialisation of international relations.⁹⁹ The dialogue on the subject of taxpayers’ procedural safeguards takes place to a large extent in the crossed channels in-between preliminary rulings before the Court of Justice and direct applications before the ECtHR, which both are main jurisprudential generators.¹⁰⁰ It is about a unique interaction between two supranational instances regarding fundamental rights protection under which progressively joined as well taxation. And as it could be witnessed with ease, it is an area that the CJEU gladly embraced in its case-law, given that the Union is in principle endowed with competences in tax matters. The ECtHR in turn has no obvious relation towards plain taxation. For that reason, taxation could reflect through the lens of the Strasbourg judges only in the background, in the forefront being always fundamental rights and freedoms. In that respect, each comparative attempt that involves the ECtHR cannot have as a departure point and then as consistent base other but the Convention and the rights proclaimed therein. Thus, the Convention shall take a key place in the exposition that follows as far as from a general standpoint it constitutes the sole instrument for control at disposal of the ECtHR. For its part that court is a tribunal accessible to all Member States’ taxpayers, who are entitled to challenge tax authorities’ actions via individual applications.¹⁰¹

The ECHR and the dialogue both the CJEU and the ECtHR are bound as a result to conduct about the protected rights complicate even more the research on tax matters, which are dragged into the whirlwind of that jurisprudential interaction.¹⁰² At the same time, it must be clear that those are not some despotic institutions. Their relationships could waver between collisions and alliances. In that respect the term “dialogue” appears most suitable towards designating in particular the rational neutrality but also unpredictability that both describe the interactions between the two courts. And it should be stressed that those relations are neither isolated, nor autonomous, but reflect much wider social relations on which is based real legitimacy enabling supranational courts to define themselves as such. As the future is by definition unpredictable, so are also social relations. By correlation, that feature carries over similarly to international courts that have vocation to arbitrate in their judgements between social interests of fundamental importance, the validity of which aims at affecting societies’ development. The European courts do not have still at their disposal an absolute discretionary freedom as far as on their rulings depends also their legitimacy. Upon that fateful interdependence reflect the intellectual efforts which shape thus one of the philosophical aspects of the topic. The societal stake of the latter reifies insofar as in the problematic’s core lie taxes embodied by taxpayers.

The legal order of the Union and that of the ECHR cohabit on the same “European legal space” so that none of them could pull away from the other’s influence.¹⁰³ At the same time, il must always be borne in mind that both the Court of Justice and the ECtHR represent accordingly two systems each of which is autonomous in relation to the other. In that respect a crucial phenomenon for the European taxpayers’ protection appears to be the accession of the EU to the ECHR, set forth in article 6-2 of the TUE. The latter specifies however that “[s]uch accession shall not affect the Union's competences as defined in the Treaties”.¹⁰⁴ Evidently that condition was not satisfied in the draft agreement for accession submitted to the Court of Justice, which in its Opinion n° 2/2013 of 18 December 2014 identified a number of obstacles.¹⁰⁵ However, the majority of concerns relating to the accession are of a political nature and those are clearly expressed in Protocol n° 8 of 2016 relating to Article 6-2 of the TEU on the accession of the Union to the ECHR.¹⁰⁶ According to that document, the accession agreement has to reflect the necessity specific European Union’s and Community law particularities to be preserved. First of all, that concerns specific modes of potential Union’s participation in surveillance bodies charged with ensuring compliance with the ECHR and then with the required mechanisms intended to secure that all actions brought by non-Member States and individual applications should be properly processed against Member States and/or the Union, as the case may be. In addition, under the same Protocol the accession, as provided by Article 6-2 of the TEU, should not affect neither Union’s competences, nor powers of its entities. With those reservations, the European Parliament reaffirms the EU’s obligation, set out in Article 6 of the TEU, to accede to the Convention and invites the Commission to take necessary measures towards removing legal obstacles that prevent the accession process from concluding, as well as to introduce a new draft agreement for accession of the EU to the ECHR, thereby finding positive solutions to the objections raised by the Court of Justice in its Opinion n° 2/2013.¹⁰⁷ Although the accession is still subject to ongoing political negotiations, it could not be denied that the challenges of that process are legal though. The latter argument is evidenced by both European courts’ case-law when European taxpayers, inhabiting their common space, bring fiscal proceedings before them that concern specifically the incomplete political framework in the matters.

However, taken on its own, the Convention order reveals a far simpler architecture than that of the EU. The hierarchical axis for conferral of competences by the Contracting States on that judicial authority is not attended by the complexities observed within the Union. Nevertheless, the Convention system’s simplicity does not prevent from discerning both conferred and controlled competences of Contracting States to the Convention and does not mean neither that the role of the Convention judges is simpler. The Convention, similarly to the Community order, admits also a certain autonomy to the Contracting States over matters of plain institutional and procedural nature. But in general, the instrumental framework for judicial control exercised by the ECtHR and that used by the CJEU differ significantly. In that sense, the only tools applied with respect to taxpayers’ procedural safeguards could be reduced to the Convention and certain principles of jurisprudential origin (such as the principles of the rule of law, of autonomous concepts, of positive obligations, of proportionality, the margin of appreciation etc.),¹⁰⁸ whereas the Community instrumental framework for that purpose comprehends fundamental rights of the Union that predate the Charter (such as the right to respect of property, freedom to pursue a professional activity, inviolability of domiciles, freedom of opinion, right to respect for private life, freedom of religion and belief, equal treatment etc.), general principles of the Union (such as the principles of the rule of law, of legal certainty, of non-discrimination, of a fair trial, prohibition of double punishment etc.),¹⁰⁹ other Community principles (such as the principles of equivalence and effectiveness), the Charter and acts of secondary legislation. Since the Treaties do not enumerate fundamental rights, it is to a large extent the Court of Justice that committed to ensure by its case-law protection of those rights and to complete the catalogue of general principles. The CJEU finds inspiration for that end in the constitutional traditions common to the Member States and in particular in the ECHR. Another fruit yet of the same inspiration is the Charter of Fundamental Rights of the EU, first proclaimed at Nice on 7 December 2000, afterwards officially adopted in its final version on 12 December 2007. The fundamental rights set forth by the Charter acquired legally binding force since the Lisbon Treaty. Article 6-1 of the TEU attributes to the Charter the same legal value as that of the Treaties. At the same time, Article 6-3 of the TEU explicitly recognises the fundamental rights, as they are guaranteed by the Convention and result from the constitutional traditions common to the Member States, as general principles of EU law. On those basic differences set out above ramifies thereafter the diversity of the judicial control operated by the CJEU and the ECtHR over national rules on tax procedures. In fact, notably the modes of control trace out the legal patterns for taxpayers’ protection. The fact remains, however, that the tools of both European courts are alike in that they implement techniques quite similar in essence - the procedural autonomy in EU law and the margin of appreciation within ECHR law. Nonetheless, it is not a case of some incidental phenomenon as long as those two mechanisms share the identical objective to establish, corroborate and preserve the subsidiary nature of their respective systems. The subsidiarity allows for its part simultaneous standardisation of the European legal orders. In that respect the ECHR retains a powerful force to the extent that it constitutes in essence a minimum standard for protection against any interference with taxpayers’ rights. In that sense, from the instrumental framework that the supranational Courts apply in their judicial examinations emerge notably the procedural safeguards of the taxpayers inhabiting the same European space.

Based upon the plan outlined above, the study shall examine in an initial plan the place that rules on tax procedures occupy in the European jurisprudence (First Part). Thus, it shall be trailed the way by which the CJEU exercises guidance over the Member States’ rules on tax procedures before it takes the form in the end of direct or indirect control over those procedures. The first title shall screen notably the methods of guidance the CJEU makes use of with regard to national tax procedures and thereafter the fiscal procedures themselves as an object of that guidance. Afterwards, it shall be defined a typification of the Community control over tax procedures around the central phenomenon known as “procedural autonomy”. Next, the study shall in the second part look into the rules on tax procedures within the case-law of the ECtHR and shall explore the guidance operated by that Court through the Convention-based doctrine called “margin of appreciation” - besides pretty similar to the procedural autonomy within the EU. Later on, it shall be paid attention to the Convention’s enforcement in procedural tax matters and to the typology of control the ECtHR exercises on fiscal procedures.

Once the similarities in judicial control by both European courts are ascertained, the study shall suggest a closer comparison between the jurisprudences of the CJEU and the ECtHR in respect of taxpayers’ procedural safeguards (Second Part). A pivotal place in that area is occupied by the effective judicial protection that the European taxpayers cannot enjoy without a fair trial, the integral safeguards of which shall be considered (First Title). Afterwards, the Second Title of Second Part shall treat the subject of taxpayers’ procedural safeguards in criminal proceedings and substantive safeguards with procedural impact in tax matters in the context of both the CJEU and the ECtHR case-laws. It shall be examined the old issue concerning the duplication of criminal and fiscal sanctions, the right of liberty and security and the principle of no punishment without law, as well as the taxpayers’ substantive rights to respect for private and family life and to respect of property in regard to their impact on tax procedures.

FIRST PART: TAX PROCEDURAL RULES IN THE EUROPEAN CASE-LAW

It would have been difficult to imagine in the middle of the last century a jurisprudential guidance over national taxation operated in parallel by the ECtHR and the CJEU. That bicephalous supranational control falls within the interaction phenomenon between the Court of Justice and the Strasbourg Court and their reciprocal influences. The referral practiced by the CJEU to Convention principles have certain effects translating into consolidation of legitimacy over intrusions into states’ fiscal affairs. What is more, albeit the EU is not formally a member of the Convention, the conception of its Member States’ collective responsibility, commonly shared by the Strasbourg judges, is able to broaden the control of those latter on the field of EU law.¹¹⁰ The CJEU does not hesitate to refer expressly to Strasbourg case-law in order to construe fundamental rights guaranteed by the Convention.¹¹¹ That is the case hence for the equality of treatment of transexuals¹¹² or homosexuals,¹¹³ for the principles of legality of criminal offences and penalties,¹¹⁴ of freedom of the press¹¹⁵ or to respect for private life.¹¹⁶ With regard to the field of tax procedures, the Court of Justice draws inspiration from Articles 6 and 13 of the Convention towards identifying the general principle of the Union of an effective judicial protection, going even further so long as, in its ambition to guarantee effectiveness of that principle, it assumes the ECtHR’s position in that the Convention “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”.¹¹⁷ Another principle taken up from the ECtHR’s case-law so as to be afterward repeatedly applied in the CJEU’s jurisprudence on tax procedures is that of reasonable time. The Court of Justice points out that the Union’s general principle giving to any person a right to a fair trial finds inspiration in the fundamental rights enshrined in the Convention and includes the right to trial within a reasonable time.¹¹⁸ In the same vein, the initial divergence¹¹⁹ in the positions of both courts in regards to the application of the right to respect for private life in the course of searches at professional and business premises has been overcome.¹²⁰ Furthermore, the protection of property by the Convention, including legitimate expectations of obtaining debts, produces strong resonance effects on actions for recovery of sums paid but not due or engaging liability of public authorities for damages caused to taxpayers, which both the CJEU took outright under its guidance.¹²¹ It is worth noting that the transfer of legal reasoning between the European courts flows in each of the two directions.¹²² The ECtHR acknowledges not only that EU law has influence on the interpretation of the principle of non-discrimination based on nationality, but also that Community’s structural modifications, the sui generis nature of the Union and the specific legal system that it represents should be taken into consideration.¹²³ According to the ECtHR the mechanism of preliminary ruling before the Court of Justice is decisive for assessment of the reasonable time of litigation proceedings.¹²⁴ Nonetheless, neither reciprocal acknowledgements over statuses and functions between the CJEU and the ECtHR, nor punctual convergence on solutions, nor recourse to common values and standards, nor coherence between the methods of both courts, are able to raise the risk of divergent interpretations, even a sort of double standard, on the grounds of identical stipulations laid down in the Convention.¹²⁵ For that reason, it must be highlighted the necessity of a parallel analysis on the fiscal impact of both courts, insofar as tendencies of the dialogue between them prove to be useful so that could be anticipated and more accurately measured case-law interpretations. A certain research interest also stems from the logical technicalities used by the two courts when forging their own tools for control. It is a question of close constructions in their general paradigm but in fact different in terms of intrinsic features, each of which mirrors in the end particularities of two separate legal systems. Despite being more technical, those issues are not of lesser significance with regard to the European taxpayers’ protection.

The principle of procedural autonomy is the key for understanding the control that the CJEU exercises nowadays on tax procedures. It is undisputed that the autonomy is not the only component to that end susceptible to determine said control in its completeness, nor is its sole facet. The fact remains, however, that the procedural autonomy is central for partition of procedural competences between the Union and its Member States, which competences are solely able to explain through their nature, proportions and evolution the very essence of the European tax integration. Beneath that procedural autonomy lie tax procedures, which inextricably follow the first in its progressive development, recalling thus by themselves the material value that state interests under judicial control have. From a logical viewpoint, it is natural that tax procedures are subject to a real harmonisation, but it should be kept in mind that it is so at the expense of a compromise on the part of the states, which is up to now tolerated rather than accepted. Besides, the reshuffle of procedural competences within the Union is still not completed but in active evolution that is more vivid than ever before and traditionally encouraged by jurisprudence.

As it concerns the control operated by the ECtHR on tax procedures, it is essential that particular attention be paid to the margin of appreciation doctrine, the application of which is unavoidable when implementing the Convention in tax matters, just as it could be rightly noted the same regarding the principle of procedural autonomy enjoyed by the EU Member States. It is important in that respect to be clarified that the margin of appreciation is a concept that has been crafted within the Convention’s system and which, when applied by the ECtHR on procedural matters, constitutes a figure analogous to the principle of procedural autonomy as employed by the Court of Justice.

Having regard to the fact that both European courts exercise their jurisdictions within separate legal orders, that is to say for distinct purposes and from standalone logical angles, it seems more opportune to be observed their control approaches on tax procedures in a segregated and sequential manner. Consequently, in an initial plan should be analysed the place that fiscal procedures occupy in the CJEU’s case-law (First Title), then, as a second step, should be observed the presence of those procedures in the context of ECtHR’s judgements (Second Title).

TITLE I: TAX PROCEDURAL RULES IN THE COURT OF JUSTICE OF THE EUROPEAN UNION CASE-LAW

Tax procedural rules are arguably among the most interesting matters of the CJEU’s case­law. Nevertheless, their role is more peculiar than that of the substantive tax law, which is also traditionally subject to decisions of the Court. That discrepancy derives from the function itself of tax procedures to be a tool, in the meaning of a legal technique, aimed at the effective implementation of substantive tax law. Tax procedural rules reflect thus particularities of fiscal systems at national level, the evolution of which is invariably connected more or less to societies’ development, history and fiscal traditions. In that vein, it is without question that tax procedural rules have a subordinated function in relation to substantive tax rules to the extent that procedures have vocation to reach substantively pre-determined outcomes. At the same time the procedural rules enjoy broad autonomy not only over the selection of ways to accomplish their mission, but also on the relatively universal area of their scope of enforcement. What is more, procedural law is generally conceived to serve the realisation of substantive tax relationships, regardless of whether they arise from direct or indirect taxation insofar as each due tax is primarily the outcome of a multi-stage process.¹²⁶ Therefore, it is natural, firstly, that the CJEU concerns itself with tax procedures, given that they affect policies of the Union in tax matters, and, secondly, that its jurisprudential approach rests upon conditions that are different from those determining the case-law dealing with substantive tax law. The “autonomous” step used by the Court translates into recourse to the principle of procedural autonomy admitted in favour of the Member States, which inter alia brings to light the fact that the tax procedures phenomenon falls within the margins of a much wider context relating to the distribution of competences within the EU. That principle also forms part of the control tools at disposal of the Court of Justice.

One of the key wheelworks of EU law constitutes the referral to national legal systems.¹²⁷ However, it should be clarified that tax procedural rules could be laid down as by EU law as well by Member States’ national legislations. In the first case the CJEU should not dither at all on whether to directly rule on the procedural issue brought before it. By contrast, in the second case, the Court should be in full awareness that the subject at the heart of the raised procedural issue falls entirely under the competence of the state concerned. In that line, it is important to note that the Court specified the wording of Article 95 of the EEC Treaty relating to the common rules on taxation in the sense that “the article does not restrict the powers of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting the individual rights conferred by Community law”.¹²⁸ Thus, in its concern not to find itself stripped of power over procedural matters relating closely to Community law in the field of taxation, the Court resorts to the principle of procedural autonomy. That is a technique for judicial control conceived for the purpose of giving notice of the Court’s intentions to engage itself in the future with certain issues of a procedural nature, while at the same time striving to demonstrate esteem towards national competences over the matters in those instances. That control from a distance could be qualified, with certain reservations, as “indirect”. Both direct and indirect taxations could be subject of such a control. A condition sine qua non for its implementation is the existence of a connection to the enforcement of EU law, that connection being often generalised under a hypothetical and passive obligation for Community law compliance.

It is worth noting that the procedural autonomy is intended to make up for the lack of general procedural rules providing for protection measures and proceedings as a guarantee for the effective implementation of EU law.¹²⁹ That lacuna is at present bridged by the Charter of Fundamental Rights of the EU, with which hence the states’ procedural autonomy should also necessarily be compliant. As a consequence, the surveillance over national procedures operated via EU general principles is today officially guaranteed by the Charter, in particular by the rights the latter manifestly embodies.

Some attention deserve also the functional relations between the principle of procedural autonomy and that of subsidiarity, the latter being set out today in Article 5-3 TEU.¹³⁰ Guaranteeing specifically the “procedural autonomy”, the CJEU incorporates therein subsidiarity requirements in the context of individuals’ judicial protection so as to be “avoided any excessive intrusion into jurisdictional and procedural matters of the Member States”.¹³¹ The EU principle of subsidiarity resonates with its functional equivalent crafted by the ECtHR - the margin of appreciation doctrine,¹³² which is itself a corollary of the principle of subsidiarity.¹³³

[...]

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¹ See Communication from the Commission to the European Parliament, the European Council and the Council. Towards a more efficient and democratic decision making in EU tax policy. Strasbourg, 15 Jan. 2019, p. 8.

² See Articles 110-113 and 115 of the TFEU.

³ M. AUJEAN, La politique fiscale européenne. In: La Découverte. Regards croisés sur l'économie. [The European Fiscal Policy. In: The Discovery. Cross-looks on the economy.] 2007/1 n° 1, pp. 238 to 249. That reasoning still remains valid. Besides, the first VAT Directive is adopted in 1967.

⁴ See Communication from the Commission to the European Parliament of 15 Jan. 2019, op. cit., p. 2.

⁵ Ibid. Since 1958, EU initiatives in the field of taxation are taken by the Council on a proposal of the Commission. The European Parliament merely has an advisory role.

⁶ See A. Maitrot de la Motte, L’application du droit de l’Union européenne en matière fiscale [Application of EU law in the field of taxation], Title VII, April 2019, n° 2.

⁷ For textual optimization the appellations “ECHR” and “the Convention” should be understood as the complete set comprising the Convention itself and the protocols that follow and complete it without regard for their binding or non-mandatory nature, nor whatever reservations expressed by some Contracting States. For the same reason the study will not have regard to the structural and nominative statuses of the courts until the entry into force of Protocol n° 11 from 1st Nov. 1998, as of which a united Court of Human Rights replaces the two pre-existing institutions - the European Commission of Human Rights and the European Court of Human Rights.

⁸ Such as the prohibition of charges having equivalent effect to customs duties, discriminatory or protective internal taxations, as well as tax-related subsidies for exports.

⁹ Developing of a common system of VAT and rapprochement of the rules on the excise duties and the raising of capital.

¹⁰ See A. Maitrot de la Motte, L’application., op. cit. Besides, the first comprehensive report on taxation, the report Neumark, recommended since 1962 concurrently both introduction of a value added tax (VAT) and harmonisation of corporate taxation. See M. AUJEAN, La politique fiscale européenne., op. cit. It should be retained that only the VAT basis is harmonised. Nonetheless, as to taxation rates, each state maintains a certain freedom and there are no such unified rates yet. The EU requires the states to fix a minimum standard rate of 15%. See G. Cavalier & R. Di Nuzzo, Les droits fondamentaux: nouveaux outils pour les fiscalistes [Fundamental Rights: New Tools for the Tax Experts], 60th Seminar on Comparative and European Law at the University of Urbino. In: Sessant'anni di studi giuridici europei a Urbino: il séminaire de droit européen, Nuova Serie A, N69, 3-4, 2018, p. 201.

¹¹ A. Maitrot de la Motte, L’application., op. cit. See namely Council Directive n° 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States; Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States; Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States; and Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European Union; as well as Convention n° 90/436/EEC on the elimination of double taxation in connection with the adjustment of profits of associated enterprises. Moreover, in that context marked by the unanimity, it took close to 30 years of discussions before the first European directives in the field of corporate taxation, the "parent companies/subsidiaries" and "mergers" directives, to appear in 1990. See M. AUJEAN, La politique fiscale européenne., op. cit.

¹² A. Maitrot de la Motte, L’application., op. cit.

¹³ G. Cavalier & R. Di Nuzzo, Les droits fondamentaux..., op. cit., p. 200-201. The authors note that in a number of occasions the CJEU required the Member States to respect the Community freedoms in the exercise of their fiscal sovereignty. For example, the Court repeatedly required respect of the freedom of movement and the right to non­discrimination (without being exhaustive, see CJEU, 14 Feb. 1995, C-279/93, Schumacker; CJEU, 13 July 1993, C- 330/91, Commerzbank AG; CJEU, 27 June 1996, C-107/94, Asscher; CJEU, 8 May 1990, C-175/88, Biehl; CJEU, 28 Jan. 1986, C-270/83, Avoir Fiscal)

¹⁴ From 1986 to 1995 it could be counted a bunch of judgments which did not really change the landscape of the fiscal sovereignty for direct taxation. From 1995 to 2005 the Court rules, by contrast, 45 times on the compatibility of national rules concerning direct taxation with Community law and in 90 % of the cases the Court declared those national rules to be running counter to Community law. G. Cavalier & R. Di Nuzzo, Les droits fondamentaux., op. cit., p. 208. See also N. Bammens, The Principle of Non-Discrimination in International and European Tax Law. IBDF, Doctoral Series, Vol. 24, Feb. 2013, p. 522. See cases CJEU, 11 Aug. 1995, C-80/94, Wielockx, para. 16; CJEU, 29 Apr. 1999, C-311/97, Royal Bank of Scotland, para. 19.

¹⁵ See Communication from the Commission to the European Parliament of 15 Jan. 2019, op. cit., p. 7. In addition, the Member States can consider taxation as a matter of national security in certain sensitive domains such as energy supply. In that sense, some Member States support the position that the unanimity rule secures respect of national sovereignty in the field of taxation against any undesirable change deliberated at EU level. Some fear as well that without the unanimity requirement, the EU will exceed its powers and intervene in the determination of taxation rates on corporate profits, incomes and other taxes which do not have any impact on the single market.

¹⁶ See A. Maitrot de la Motte, L'application..., op. cit.

¹⁷ Ibid.

¹⁸ See Communication from the Commission to the European Parliament of 15 Jan. 2019, op. cit., p. 1. The Commission notes that the increased mobility of businesses and citizens means that one Member State’s tax decisions can significantly affect the revenues of the others and the scope to make their own policy choices.

¹⁹ M. Roccati, Le rôle du juge national dans l’espace judiciaire européen, du marché intérieur à la coopération civile [The Role of the National Judge in the European Judicial Area, from Internal Market to Civil Cooperation], Doctoral thesis in law: University Paris Ouest Nanterre La Défense, 587 p., Paris: Bruylant, 2013, p. 331, para. 382.

²⁰ The present research study shall give a preference to the term “Community” in full awareness of its obsolescence after the entry into force of the Lisbon Treaty, an exception being the matter falling under the Euratom Treaty. That usage comes as a convenience of language habits, deeply rooted even in the style still met in the Court’s decisions (Judgment of 15 Mar. 2011, C 29/10, Koelzsch) - see R. Loljeeh, Jurisprudence judiciaire française intéressant le droit de l’Union [French judicial case-law of interest for Union law]. RTD eur., Apr.-June 2013, p. 292-17.

²¹ Insofar as the CJEU replaced its predecessor the Court of Justice of the European Communities and with the purpose to maintain at best the unity of expressions, the Court in Luxembourg shall be met within the context of that study as “Court of Justice of the European Union” (CJEU) without neglecting at all its previous embodiments and relatively recent metamorphosis. Moreover, to the extent that in accordance with Article 19 TEU “[t]he Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts”, the General Court may also be included at some places under the abbreviation “CJEU”, regardless of whether it is about its present or past institutional form as Court of First Instance. Similarly, such an approach shall be applied later on in relation to the European Commission of Human Rights which existed until 1998 before to cede its place to the permanent sessions of the European Court of Human Rights.

²² On those points, Ph. Marchessou, Cours de Droit fiscal international et européen [Lectures on International and European Tax Law]. University year 2013-2014.

²³ Substantive law constitutes the entire set of rules which define the rights and obligations in a legal system, whereas procedural law specifies the manner in which individuals can exercise their rights. Substantive and procedural laws are complementary to the extent that procedural law ensures application and protection of rights and obligations.

²⁴ W. Baranès, M.-A. Frison-Roche, J.-H. Robert, Pour le droit processuel [About Procedural Law], Recueil Dalloz, 1993, p. 9.

²⁵ Ibid.

²⁶ Ibid.

²⁷ S. Poillot-Peruzzetto, Ordre public et droit communautaire [Public order and Community law], Recueil Dalloz, 1993, p. 177. See as well CJEC, 14 Oct. 1976, LTU v. Eurocontrôle, case 29-76. Cited in: ibid.

²⁸ K. Georges, L'ordre public dans l'ordre juridique communautaire [The public order within the Community legal order], RTD Eur., 2002, p. 1.

²⁹ See on the economic effects of the legal systems, K. Thierry, Économie du droit [Legal economics], Repères, La découverte 2012 (new ed.), p. 111-122.

³⁰ K. Georges, L’ordre public dans l’ordre juridique..., op. cit.

³¹ J. Normand, Procédure [Procedure]. In: L. Cadiet (dir.), Dictionnaire de la Justice [Dictionary of Justice], Paris: PUF, 2004, p. 1053. Cited in: A. Ciaudo, La maîtrise du temps en droit processuel [The time control in procedural law], [online]. Jurisdoctoria n° 3, 2009, p. 22. Available on: <http://www.jurisdoctoria.net/pdf/numero3/aut3_CIAUDO.pdf>

³² J. Grosclaude et Ph. Marchessou, Procédures fiscales [Tax Procedures]. Paris: Dalloz, 7th ed., 2014, p. 1.

³³ Ibid.

³⁴ See on the division of competences within the EU, K. Davis, Understanding European Union Law, Fifth Edition, Routledge, London and New York, 2013, p. 26-27.

³⁵ D. Simon, Le système juridique communautaire [The Community legal system], Paris: PUF, 3th edition, 2001.

³⁶ B. Castagnède, Précis de fiscalité internationale [Precis on international taxation], Paris: PUF, 4th edition, 2013, p. 23. See on the European tax policy, B. Castagnède, La politique fiscale [The taxation policy], « Que sais-je? » [What do I know?], PUF, 2008, p. 105-123.

³⁷ B. Castagnède, Précis de fiscalité internationale..., op. cit., p. 24.

³⁸ Both ways for rapprochement between national legislations in terms of economic law are widely recognised - the unification (uniformization), through adoption of regulations, and the harmonisation, via directives. N. Rias, Harmonisation n’est pas absorption [Harmonisation is not absorption], RTD eur., Apr.-June 2013, p. 292-36; M. Delmas-Marty, Le phénomène de l’harmonisation: l’expérience contemporaine [The harmonisation phenomenon: the contemporary experience]. In: Pensée juridique française et harmonisation européenne du droit [French legal thoughts and European legal harmonisation]. Société de Législations Comparées [Society for Comparative Legislations], 2003, p. 47-49. Cited in: D. Jouve, La Cour de Justice de l’Union Européenne: instruments d’harmonisation des droits nationaux [The Court of Justice of the European Union: tools for harmonisation of national legal systems]. Revue de Mutations de Droit [Journal of Legal Transformations]. Jan. 2011. The CJEU supports as well said distinction, see CJEC, 20 Jan. 2008, Bouanich, C-265/04 (para. 49); Gilly, 12 May 1998, case C-336/96 (paras. 23 and 30); CJUE, Cathy Schulz v. Finanzamt Stuttgart, 15 Sept. 2011, case C-240/10 (para. 40); CJCE, 18 June 2009, Aberdeen Property, case C-303/07 (para. 25) etc. See besides on the excise duties, Ph. Marchessou, Accises [Excises]. Dalloz, Répertoire de droit européen [European law catalogue], Mar. 2010.

³⁹ B. Castagnède, Précis de fiscalité internationale., op. cit., p. 25-48.

⁴⁰ M. Blanquet, Compétences de l’Union [Union’s competences], Jurisclasseur, 2012, p. 13.

⁴¹ See on the fiscal impact from those freedoms, B. Castagnède, Précis de fiscalité internationale..., op. cit., p. 36­48.; B. Chevalier, L'encadrement de la compétence des États membres en matière fiscale par le droit Communautaire [Guidance on the Member States’ powers in the field of taxation by Community law], 2007. Available on: <http://www.etudes-fiscales-internationales.com/media/01/01/1445177949.pdf>

⁴² Court of Cassation. Symposium « Présidence française de l’Union » [French Presidency of the Union], Paris: 4 and 5 Dec. 2000. Les principes généraux du droit communautaire [General principles of Community law], [online]. Available on: <http://www.courdecassation.fr/colloques_activites_formation_4/colloques_passes_53/>

⁴³ A. Marionneau, L’introduction de la notion d’espérance légitime en droit fiscal [Introduction of the notion of legitimate expectation in tax law], Droit fiscal [Tax law] n° 47, 20 Nov. 2014, 631, p. 1.

⁴⁴ F. Picod, La normativité du droit communautaire [The normativity of Community law], Cahiers du Conseil constitutionnel [Notebooks of the Constitutional Council], n° 21, (Dossier: la normativité [Files: the normativity]), Jan. 2007, p. 5.

⁴⁵ O. Dord, Systèmes juridiques nationaux et Cours européennes : de l’affrontement à la complémentarité [National legal systems and European courts: from confrontation to complementarity], Pouvoirs [Powers], 2001, n° 96, p. 7 and 12.

⁴⁶ See CJEC, 15 July 1964, Costa v. ENEL, case 6/64; CJCE, 9 Mar. 1978, Simmenthal, case 106/77.

⁴⁷ Pierre Pescatore. See in that sense, G. Canivet, Le droit communautaire et l’office du juge national [Community law and the function of the national judge], Droit et Société [Law and Society], 20/21, 1992, p. 145. See P. Pescatore, Le droit de l’intégration [Integration law], Brussels: Bruylant, coll. « Droit de l’Union européenne » [European Union law], repr. 2005, p. 85; L’ordre juridique des Communautés européennes [Legal order of the European Communities], Études des sources du droit communautaire [Studies on the sources of Community law]. Brussels: Bruylant, coll. « Droit de l’Union européenne », repr. 2006, p. 257. Cited in: F. Picod, La normativité du droit communautaire..., op. cit., p. 6.

⁴⁸ Thus, F. Picod, La normativité du droit communautaire..., op. cit., p. 2.

⁴⁹ In that sense, A Valembois, La prévalence des principes généraux..., op. cit.

⁵⁰ G. Canivet, Le droit communautaire et l’office du juge national., op. cit., p. 153.

⁵¹ See further on the uniform interpretation as a judicial approach of supranational systems, G. Martinico, Is the European Convention Going to Be ‘Supreme’? A Comparative-Constitutional Overview of ECHR and EU Law before National Courts, The European Journal of International Law, Vol. 23 n° 2, p. 407-412.

⁵² G. Canivet, Le droit communautaire et l’office du juge national., op. cit.

⁵³ D. Simon, Le système juridique communautaire., op. cit. p. 254. Cited in: ibid.

⁵⁴ In that sense a fortiori, F. Picod, La normativité du droit communautaire., op. cit., p. 3-4.

⁵⁵ O. Dord, Systèmes juridiques nationaux., op. cit., p. 15. In the author’s view a national system can also have three types of alteration: law complexification, institutions’ destabilization, identity dilution.

⁵⁶ See J. Polakiewicz, Europe’s multi-layered human rights protection system: challenges, opportunities and risks [online], Lecture at Waseda University Tokyo, 14 Mar. 2016. Available on: <http://eulawanalysis.blogspot.bg/2016/03/europes-multi-layered-human-rights.html>

⁵⁷ It should be clarified that in the following context readers will meet only the ECtHR but at the same time they also have to take into account that before the entry into force of Protocol n° 11 (1 Nov. 1998) the judicial entities ensuring observance of the Convention were concurrently the European Commission of Human Rights and the ECtHR. It is in fact the Commission during that period which examined as a first step the applications’ admissibility. Protocol n° 11 replaces the Commission by the ECtHR as a judicial entity exercising its competences on a permanent basis. The Commission continued to perform its duties in relation to the pending cases before it until 31 Oct. 1999 and ceased operating as form that date. See on that subject Ph. Baker, Taxation and the European Convention on Human Rights, British Tax Review, 2000, p. 3. As to the proceedings before the Commission and the Court prior to the entry into force Protocol n° 11 the author refers to P. Van Dijk & G.J.H. Van Hoof, Theory and Practice of the European Convention on Human Rights, Deventer: Kluwer, 2nd ed., 1990, ISBN 90-6544-319-3, pp. 61-190; For a commentary on the proceedings after said Protocol took effect Baker refers to the 3th ed., Deventer: Kluwer, 1998, ISBN 90-411-0598-0, pp. 97-191.

⁵⁸ Ibid. See further F. Péraldi-Leneuf, L’articulation des compétences fiscales à l’échelon européen [The articulation of tax competences at European level], RDF, 2001, n° 44, p. 11. See also O. De Schutter, L’influence de la Cour européenne des droits de l’homme sur la Cour de justice des Communautés européennes [The influence of the European Court of Human Rights on the Court of Justice of the European Communities], CRIDHO, 2005/07, p. 16.

⁵⁹ V. B. Moutel, L’effet horizontal de la CEDH en droit privé français [The horizontal effect of the ECHR in French private law], [online]. Thèse de doctorat en droit [Doctoral thesis in law]: Université de Limoges [University of Limoges], p. 26. See as well M. Levinet, La Convention EDH socle de la protection des droits de l'homme dans le droit constitutionnel européen [The ECHR basis of the human rights protection in the European constitutional law], Revue française de droit constitutionnel [French Journal of Constitutional Law], 2011/2, n° 86, 227-263. Available on: <http://epublications.unilim.fr/thèses/2006/moutel-beatrice/moutel-beatrice.pdf>

⁶⁰ On the system established by the Convention see the conclusions of AG F. Jacobs from 16 Dec. 1992 on the case Konstantinidis (CJEC, 30 Mar. 1993, C-168/91) , para. 51.

⁶¹ See V. A. Tunc, Standards juridiques et unification du droit [Legal standards and unification of law], RID comp. 1970, vol. 22, p. 248.

⁶² In that sense, M. Sadowsky, Vers un système fiscal standard? [Towards a standardized fiscal system?] RDF, n° 25, 20 June 2013, comm. 337, p. 2 .

⁶³ D. Evrigenis, Recent Case Law of the European Court of Human Rights on articles 8 and 10 of the European Convention on Human Rights, Human Rights Law Journal. 1982, n° 3, p. 138-139. Cited in: E. Brems, The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, 1996, p. 302.

⁶⁴ See C. Copain, Le principe ne bis in idem: entre harmonisation et dissonances européennes [The ne bis in idem principle: between European harmonisation or dissonances], AJ Pénal, 2013, p. 270.

⁶⁵ See Ph. Marchessou, Droit fiscal européen et droit fiscal international, Dalloz, Répertoire de droit européen, 2015, paras. 29 and 53; In line with that, prof. Marchessou makes a distinction between traditional international law and pure European law, the first comprising among others the ECHR, whereas the second being the Union law (v. ibid). P.-M. Dupuy & Y. Kerbrat, Droit international public [International public law], Dalloz, 12th edition, 2014, p. 305-306.

⁶⁶ S. Greer, La marge d’appréciation: Interprétation et pouvoir discrétionnaire dans le cadre de la Convention européenne des droits de l’homme [The margin of appreciation: Interpretation and discretion under the European Convention on Human Rights], Éditions du Conseil de l’Europe [Council of Europe Publishing], Dossier sur les droits de l’homme [Human Rights Files], N» 17, p. 5.

⁶⁷ J.A. Carrillo Salcedo, Souveraineté des États et droits de l’homme en droit international contemporain [States’ sovereignty and human rights in contemporary international law]. In: F. Matscher & H. Petzold, Protecting Human Rights: The European Dimension. 1988, p. 91.

⁶⁸ The definition of the concept “legal order” as given by the legal philosopher Herbert Lionel Adolphus Hart shall be retained. See A. Bailleux & H. Dumont, Le pacte constitutionnel européen [The European constitutional pact], Volume 1 - Fondement du droit institutionnel de l’Union [Union institutional law foundation], Bruylant, 2015, paras. 260-261.

⁶⁹ See P. Frumer, La renonciation aux droits et libertés. La Convention européenne des droits de l’homme à l’épreuve de la volonté individuelle [Renunciation of rights and freedoms. The European Convention of Human Rights standing the test of the individual will], Brussels, Bruylant, Collection de droit international [International law collection], 2001, pp. 522-527. See as well S. Van Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne des droits de l’Homme. Prendre l’idée simple au sérieux [Proportionality in the European Convention of Human Rights law. Taking the simple idea seriously]. Brussels, FUSL/Bruylant, 2001, chap. IV. See also T. Meron, On a Hierarchy of International Human Rights, International Journal of Human Rights. 1986, n° 80, pp. 1-23.

⁷⁰ J.-F. Renucci, Introduction générale à la Convention européenne des droits de l’homme [General introduction of the European Convention of Human Rights], Éditions du Conseil de l’Europe, 2005, p. 6.

⁷¹ In principle the legal systems that interact on the basis of the Convention are three, “namely the national, Community and Convention systems [...]”. See J. Callewaert, Paris, Luxembourg, Strasbourg: trois juges, une discrimination. L’interaction entre les ordres juridiques nationale, communautaire et conventionnel à l’épreuve de la pratique [Paris, Luxembourg, Strasbourg: three judges, one discrimination. The interaction between the national, Community and Convention legal orders facing the challenges of practice], Revue trimestrielle des droits de l'homme [Quarterly human rights review] n° 61, 2005, p. 161.

⁷² Fr. Tulkens et S. Van Drooghenbroeck, L’évolution des droits garantis et l’interprétation jurisprudentielle de la Convention Européenne des Droits de l’Homme [Development of the guaranteed rights and interpretation of the European Convention of Human Rights], Collection Les Conférences Publiques du Pôle européen Jean Monnet [Collection “The Public Lectures of the European Center Jean Monnet”], Grenoble, 27 Sept. 2002, p. 3.

⁷³ See G. Canivet, Cours suprêmes nationales et Convention européenne des droits de l’homme. Nouveau rôle ou bouleversement de l’ordre juridique interne? [National supreme courts and European Convention of Human Rights. A new role or overturning of the internal legal order] p. 5, [online]; Available on: <http://www.courdecassation.fr/IMG/File/cours_supremes_canivet.pdf> As to the interpretation of the Convention, see S. Guinchard, Convention européenne des droits de l'homme et procédure civile [European Convention of Human Rights and civil proceedings], Dalloz, Dec. 2012.

⁷⁴ J.-F. Renucci, Introduction générale..., op. cit., p. 6. See also ECtHR, 9 Oct. 1979, Airey v. Irlande, Series A, n° 32, para. 26.

⁷⁵ J.-F. Renucci, Introduction générale., op. cit.

⁷⁶ Ph. Baker, Taxation and the European Convention, op. cit., p. 2. That also holds for Community law, v. AG P. Maduro, para. 28 in his Opinion on the judgement of the CJEU of 5 Dec. 2006, Joined Cases C-94/04 (Federico Cipolla v. Rosaria Fazari, Rosaria Portolese, spouse Fazari) and C-202/04 (Stefano Macrino and Claudia Capoparte v. Roberto Meloni). See as well G. Mikelsone, The Binding Force of the Case Law of the Court of Justice of the European Union, Jurisprudence, 2013, 20(2): 469-495.; Regarding the distinction between continental “jurisprudence” and the Anglo-Saxon “precedent”, see M. J. Falcon y Tella, A Three-dimensional Theory of Law, Martinus Nijhoff Publishers, Boston, 2010, p. 102-104; See also D. A. Lapres, Les anglo-saxons sont morts, longue vie aux anglo-normands! [The Anglo-Saxons are dead. Long live the Anglo-Normans!], Gazette du Palais [The Palace Gazette], Paris, 19 June 2002.

⁷⁷ Judge D. J. Evrigenis defined the Convention as a “harmonisation tool with minimum effect”, see Le rôle de la Convention européenne des droits de l'Homme [The role of the European Convention of Human Rights]. In: M. Cappelletti (dir.), Nouvelles perspectives d’un droit commun de l’Europe [New Perspectives for a Common Law of Europe], Kluwer Academic Publishers, 1 Nov. 1978, p. 341 et seq., spec. p. 351. All cited in: B. Moutel, L’effet horizontal de la CEDH., op. cit., p. 29.

⁷⁸ Fr. Tulkens et S. Van Drooghenbroeck, L’évolution des droits garantis ., op. cit., p. 3 and 21. See L. Sinopoli, Le procès équitable en droit international privé français et « européen » [The fair trial in French and European international private law], p. 17. In: H. Ruiz-Fabri (dir.), Procès équitable et enchevêtrement d’espaces normatifs [Fair trial and entanglement of normative spaces], UMR de droit comparé de Paris [Joint research unit for comparartive law in Paris], Edition de Société de Législation Comparée, 2003, pp. 159-183.

⁷⁹ See E. Dubout, La procéduralisation des obligations relatives aux droits fondamentaux substantiels par la Cour EDH [The proceduralisation by the ECtHR of the obligations related to the substantive fundamental rights], RTDH, n° 70/2007. p. 420.

⁸⁰ See G. Canivet, La convergence des systèmes juridiques du point de vue du droit privé français [The convergence between legal systems from the perspective of French private law], RID comp., Vol 55, n° 1-2003, p. 15.

⁸¹ In contrast to the horizontal effect which covers the relation forged between two private persons and which tend to preserve recognised rights against individual interferences. See B. Moutel, L ’effet horizontal de la CEDH...,op. cit., p. 12. As regards the horizontal effect, see D. Spielmann, Obligations positives et effet horizontal des dispositions de la Convention. L’interprétation de la Convention européenne des droits de l’Homme [Positive obligations and Convention provisions’ horizontal effect. The interpretation of the European Convention of Human Rights], Brussels, Bruylant, 1998, pp. 133 et seq.; R. Lawson, Positieve verplichtingen onder het E.V.R.M.: opkomst en ondergang van de «fair-balance» test, N.J.C.M.-Bulletin, 1995, pp. 559-573 (Deel 1) et 727-751 (Deel 2). Cited in: Fr. Tulkens & S. Van Drooghenbroeck, L '¿volution des droits garantis..., op. cit., p. 9.

⁸² See J. Callewaert, Paris, Luxembourg, Strasbourg., op. cit., p. 165. In the same vein according to D. Simon, La contribution de la Cour de cassation à la construction juridique européenne : Europe du droit, Europe des juges [The contribution of the Court of cassation to the European legal construction: Europe of the law, Europe of the justices], Avant-propos [preface], Rapport annuel 2006 de la Cour de cassation [Court of Cassation 2006 Annual Report], Paris, La Documentation française [The French documentation], 2007, p. 79 to 92.

⁸³ G. Martinico, Is the European Convention Going to Be ‘Supreme ?..., op. cit., p. 407.

⁸⁴ The direct remedies at disposal of EU rightsholders before the Court of Justice are the actions for annulment (Article 263 TFEU), the actions for failure to act (Article 265 TFEU) and the actions for damages (Articles 268 and 340 TFEU).

⁸⁵ See the Treaty on the Functioning of the European Union (OJ n° C 326 of 26 Oct. 2012), Part III “Union Policies and Internal Actions”. In addition, according to the authors (Fr. Tulkens and S.Van Drooghenbroeck) the vertical effect and the horizontal effect of the Convention result in that “the rights today have contained a defensive side and an offensive side at the same time”. See Fr. Tulkens & S. Van Drooghenbroeck, L’évolution des droits garantis., op. cit., p. 11.

⁸⁶ K. Blay-Grabarczyk, Le droit de propriété, un droit fondamental comme les autres? [The right of property, a fundamental right like the others?], Europe, n° 6, June 2014, study 4, p. 3.

⁸⁷ See V. Michel, L’exigence de préservation de l’autonomie de l’ordre juridique de l’Union européenne dans l’adhésion à la Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales [The requirement of preserving the autonomy of the European Union’s legal order in the accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms]. In: C. Picheral & L. Coutron (dir.), Charte des droits fondamentaux de l’UE et Convention européenne des droits de l’homme [EU Charter of Fundamental Rights and European Convention on Human Rights], Bruyant, 2012, p. 128. Cited through K. Blay- Grabarczyk, Le droit de propriété..., op. cit., p. 3, ref. note 33.

⁸⁸ Ibid. V. Michel.

⁸⁹ S. Sabine & T. Fabien, La Cour de justice au cœur de la gouvernance européenne [The Court of Justice at the heart of the European governance], Pouvoirs, 2014/2 n° 149, p. 65. That applies especially in the field of taxation where the judge is a real partner to the legislator, see in that sense H. Gribnau, Equality, Legal Certainty and Tax Legislation in the Netherlands Fundamental Legal Principles as Checks on Legislative Power: A Case Study, Utrecht Law Review, vol. 9, March 2013, [http://www.utrechtlawreview.org] . See in connection with the latter, M. Saul, The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments, Human Rights Law Review, 22. Oct. 2015, 30 p.

⁹⁰ J. Malenovsky, Improvisation et routine dans la conciliation des libertés et des droits par la Cour de justice de l’Union européenne [Imrpovisation and routine in the conciliation of freedoms and rights by the Court of Justice of the European Union]. In: L. Potvin-Solis, La Conciliation des droits et libertés dans les ordres juridiques européens [The conciliation of the rights and freedoms in the European legal orders], Bruyant, 2012, p. 267-268. Cited: K. Blay-Grabarczyk, Le droit de propriété..., op. cit., p. 3-4.

⁹¹ H. Legal, Composition et fonctionnement des Cours européennes [Composition and functioning of the European courts], Pouvoirs, 2001/1 n° 96, p. 66.

⁹² Ibid.

⁹³ Ibid. See as well S. Guinchard, Convention européenne..., op. cit. The author notes that the ECtHR, unlike the Court of Justice, adjudicates cases where the applicant’s individual situation is predominant, whereas the second disposes of issues where it mainly navigates economic operators, that, in short, the extralegal considerations are stronger in Strasbourg than in Luxembourg. Guinchard recalls the words of judge A. Donner, who consecutively has been judge in Luxembourg and then in Strasbourg: “In Luxembourg the justice is delivered in a ruder way, its rationale becomes more logical and its fairness more egalitarian, not to say equalizing. The first argument of the litigants will be that their clients have been classified in a category which was not appropriate to their peculiarities and contains obligations which disregard their issues or the nature of their production or distribution activities. In Strasbourg it is the true “oppressed” who presents themselves and the justice’s spirit is more sensitive therein, the rationale becomes more charitable and the fairness seeks human individualization”. See namely A. Donner, Protection des droits de l'homme: la dimension européenne, Études en l'honneur de G.J. Wiarda [Protecting the Human Rights: The European Dimension, Essays in honour of G.J. Wiarda], Cologne, Carl Heymanns, 1988, p. 145 et seq.; Cited in: ibid. See further a juxtaposition between both European systems, É. Déal, La garantie juridictionnelle des droits fondamentaux communautaires. La Cour de justice face à la Communauté de droit [Judicial guarantee of European Union fundamental rights. The Court of Justice in front of the Community of law]. Thèse de doctorat en droit [Doctoral thesis in law]: Université Paul Cézanne - Aix-Marseille III, Dec. 2006, p. 243­244.

⁹⁴ J. Polakiewicz, Europe’s multi-layered human rights protection system., op. cit.

⁹⁵ See Taxation and the European Convention on Human Rights, Factsheet - Taxation and the ECHR. ECtHR, Press Unit, Apr. 2019. See G. Cavalier & R. Di Nuzzo, Les droits fondamentaux..., p. 203 et seq.

⁹⁶ « [.] from Westport to Vladivostok, more than 800 million individuals are today holders of rights and freedoms it enshrines”. See Fr. Tulkens & S. Van Drooghenbroeck, L’évolution des droits garantis., op. cit., p. 21.

⁹⁷ See I. Sarmas, The European Convention on Human Rights in times of economic crisis. Dialogue between judges. Proceedings of the seminar of 25 Jan. 2013, European Court of Human Rights, Strasbourg, 2013, p. 15.

⁹⁸ See C. Copain, Le principe ne bis in idem., op. cit.

⁹⁹ It should be underlined moreover that at jurisdictional level the international legal order keeps thus far some horizontality. See Ch. Girard, Procès équitable et enchevêtrement des espaces normatifs. Réflexions sur la problématique générale [Fair trial and entanglement of the normative spaces. Reflections on the general issues]. In: Hélène RUIZ FABRI (dir.), Procès équitable et enchevêtrement des espaces normatifs [Fair trial and entanglement of the normative spaces] (Travaux de l'Atelier Droit International [Works of the Workshop on International Law], UMR de Droit Comparé de Paris [Joint research unit for comparative law in Paris], Université Paris I - C.N.R.S [Centre national de la recherche scientifique/ National Centre for Scientific Research]), Paris, Société de Législation Comparée [Comparative Law Society], 2003, pp. 21-52. That finding is still fully valid these days. See on the judicialization of international relations D. Renaud, Naissance d'un constitutionnalisme transnational [Birth of transnational constitutionalism]. Pouvoirs, 2001/1 n° 96, p. 23 et seq.

¹⁰⁰ E. Barbier de la Serre, L’empire grandissant de la Charte des droits fondamentaux [The growing empire of the Charter of Fundamental Rights]. Revue Lamy de la Concurrence [The Competition Lamy Revue], 2013, p. 1.

¹⁰¹ Ph. Baker, Taxation and Human Rights. GITC Review, vol. I, n° 1, 2001, p. 2.

¹⁰² As notes it J. Callewaert, The European Convention on Human Rights and European Union Law: a Long Way to Harmony, European Human Rights Law Review, Issue 6, 2009, p. 777.

¹⁰³ F. Benoit-Rohmer, Pour la construction d’un espace juridique européen de protection des droits de l’homme. Réflexions sur l’arrêt de la Cour européenne des droits de l’homme Ilascu e.a. c. Russie et Moldova du 8 juillet 2004 [Towards the construction of a European legal space of human rights protection. Thoughts on the judgment of the European Court of Human Rights Il ascu and others v. Russia and Moldova from 8 July 2004], L’Europe des libertés [The Europe of freedoms], June-Sept. 2004, n° 15. Cited in: R. Bentirou Mathlouthi, Le dialogue des ordres juridiques européens: prometteur d’un jus commun ou d’un jus singulare des droits fondamentaux? [The dialogue between the European legal orders: encouraging a jus commun or jus singulare of fundamental rights], Droits fondamentaux [Fundamental rights], n° 9, Jan. 2011 - Dec. 2012.

¹⁰⁴ Article 6-2 of the Treaty on European Union.

¹⁰⁵ See Opinion 2/13 of the CJEU (Full Court) of 18 Dec. 2014.

¹⁰⁶ See Official Journal of the European Union C 202/273.

¹⁰⁷ See European Parliament resolution of 12 February 2019 on the implementation of the Charter of Fundamental Rights of the European Union in the EU institutional framework (2017/2089(INI)).

¹⁰⁸ See K. Grabarczyk, Les principes généraux dans la jurisprudence de la Cour européenne des droits de l'homme [General principles in the case-law of the European Court of Human Rights], Presses Universitaires d'Aix-Marseille [Aix-Marseille University Press], 2008, 558 p.

¹⁰⁹ F. Ferraro & J. Carmona, Les droits fondamentaux dans l’Union européenne [The fundamental rights in the European Union]. Service de recherche du Parlement européen [European Parliamentary Research Service], 2015, 29 p. In order to avoid any confusion, it should be borne in mind that the borderline between fundamental rights and general principles identified in the Community case-law prior to the entry into force of the Lisbon Treaty is quite blurred. Thus, some fundamental rights emerge in the form of general principles of Union law - for ex. the right to protection of human dignity and of the integrity of the person, the right to freedom of expression, to equality before the law, the principles of adversarial administrative procedures and of “good administration” etc. See ibid. p. 6.

¹¹⁰ D. Simon, Des influences réciproques entre CJCE et CEDH: « Je t’aime, moi non plus »? [Reciprocal influences between the CJEU and the ECtHR], Pouvoirs, 2001, n° 96, p. 40-41. See however on the reluctance of the ECtHR to engage such a collective responsibility, B.C., Le torchon brûle toujours entre la Cour EDH et la Communauté européenne [The rag between the ECtHR and the European Community is still burning], Revue Lamy de la Concurrence, 2005, p. 3.

¹¹¹ D. Simon, Des influences réciproques..., op. cit., p. 43.

¹¹² Ibid. V. CJEC, case C-13/94, 30 Apr. 1996, P/S and Cornwall County Council.

¹¹³ CJEC, case C-249/96, 17 Feb. 1998, Grant.

¹¹⁴ CJEC, case C-74/95 and C-129/95, 12 Dec. 1996, Criminal proceedings against X.

¹¹⁵ CJEC, case C-368/95, 26 June 1997, Familiepress.

¹¹⁶ CJEC, case C-404/92 P, 5 Oct. 1994, X v. the Commission. See on the judgments above D. Simon, Des influences réciproques., op. cit.

¹¹⁷ G. Montagnier & T. Debard, Droit de l’Union européenne et procédure civile [European Union law and civil proceedings], Dalloz, Mar. 2014, paras. 24-27. See namely the judgment referred to, ECtHR, App. n° 6289/73, 9 Oct. 1979, Airey v. Ireland, series A, n° 32.

¹¹⁸ CJEC, case C-185/95 P, 17 Dec. 1998, Baustahlgewebe v. Commission. See further the recent case-law related to procedural remedies for compensation at disposal of the litigants who have suffered an excessive length of judicial proceedings, the CJEU judgments of 26 Nov. 2013, Gascogne Sack Deutscland v. Commission, case C-40/12; of 26 Nov. 2013, Kendrion v. Commission, case C-50/12; and of 26 Nov. 2013, Groupe Gascogne v. Commission, case C-58/12. See namely the analysis of A. Bohler, Quel remède effectif, en droit de l’Union, aux violations du droit de voir sa cause jugée dans un délai raisonnable? [Which effective remedy, under Union law, for violations of the right to have one’s case determined within a reasonable time?], Revue Lamy de la Concurrence, 2014.

¹¹⁹ See in that connection how the ECtHR understands the case-law divergence, ECtHR [GC], 20 Oct. 2011, Nejdet Sahin and Perihan Sahin v. Turkey, App. n° 13279/05.

¹²⁰ Thus, in the first place the Hoechst judgment of the CJEC (case 46/87 and 227/88, 21 Sept. 1989) runs counter to the Chappell judgment of the ECtHR (30 Mar. 1989, Chappell v. the United Kingdom, App. n° 10461/83), but that divergence is absorbed following the judgments Niemietz and Colas Est of the ECtHR (resp. 16 Dec. 1992, Niemietz v. Germany, App. n° 13710/88; 16 Apr. 2002, Colas Est v. France, App. n° 37971/97) on which the CJEC aligns itself by its judgment SA Roquette Frères (22 Oct. 2002, case C-94/00). Cited in: B. Genevois, La Convention européenne des droits de l'homme et la Charte des droits fondamentaux de l'Union européenne: complémentarité ou concurrence? [The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union: complementarity or rivalry?], RFDA 2010, p. 437.

¹²¹ See in that sense, B. Toulement & J. Du Pasquier, La place croissante de la CEDH en droit fiscal interne [The growing influence of the ECtHR in internal tax law], Les nouvelles fiscales [The fiscal news], n° 1028, 15 July 2009, p. 23-24. As regards the protection of a “legitimate expectation for a claim”, see namely ECtHR, 29 Nov. 1991, Pine Valley v. Ireland, App. n° 12742/87; and ECtHR, 20 Nov. 1995, Pressos Compania Naviera and others v. Belgium, App. n° 17849/91.

¹²² D. Simon, Des influences réciproques entre CJCE et CEDH..., op. cit., p. 44.

¹²³ See concerning the terms “legal system” and “legal order”, M. J. Falcon y Tella, A Three-dimensional Theory of Law..., op. cit., p. 299 et seq.

¹²⁴ D. Simon, Des influences réciproques entre CJCE et CEDH..., op. cit., p. 44. See on the non-discrimination, ECtHR, 18 Feb. 1991, Moustaquim v. Belgium, App. n° 12313/86; ECtHR, 27 Apr. 1995, Piermont v. France, App. n° 15773/89 and 15774/89; ECtHR, 7 June 1996, Chorfi v. Belgium, App. n° 21794/93; As regards the reasonable time, ECtHR, 26 Feb. 1998, Pafitis v. Greece, App. n° 20323/92; On the other considerations, ECtHR, App. n° 24833/94, 18 Feb. 1999, Matthews v. the United Kingdom. See in connection with the latter, A. Bultrini, La responsabilité des états membres de l’Union européenne pour les violations de la Convention européenne des droits de l’homme imputables au système communautaire [The accountability of the Member States of the European Union for violations of the European Convention on Human Rights imputable to the Community system], RTDH, 2002; De la responsabilité internationale des États membres de l'Union européenne au titre de la Convention européenne des droits de l'homme [About the international accountability of the Member States of the European Union in respect of the European Convention on Human Rights], RTD eur. 1999. 793.

¹²⁵ D. Simon, Des influences réciproques entre CJCE et CEDH., op. cit., p. 47-48.

¹²⁶ J. Grosclaude, Ph. Marchessou & B. Trescher, Droit fiscal général [General fiscal law]. Paris: Dalloz, 12th ed., 2019, p. 6. The stages referred to by the authors are: establishment of the assessment base, determination of the taxpayer, occurrence of the chargeable event and chargeability, tax liquidation and collection.

¹²⁷ R. Garcia, Il giudice nazionale come giudice europeo. Quaderni costituzionali. 2005, n° 1, p. 116. See CJEC, joint cases C-10/97 to C-22/97, 22 Oct. 1998, Ministero delle Finanze v. INCOGE et al. Cited in: M. Roccati, Le rôle du juge national..., op. cit., p. 273, para. 317, ref. 1076.

¹²⁸ CJEC, 4 Apr. 1968, Firma Gebrüder Lück v. Haupzollamt Koln-Rheinau, case 34-67, esp. p. 370; CJEC, 3 Apr. 1968, Molkerei Zentrale Westfalen, case C-28/67. Cited in: M. Roccati, Le rôle du juge national., op. cit., p. 272, para. 316, ref. 1071. However, the Community legislator does not entirely refrain from legislatively guiding national orders in procedural matters. Thus, departing from the dictum of the Lück judgment (cited above), the Union legislator justifies the adoption of remedies-directives by finding that “in certain Member States the absence of effective remedies or inadequacy of existing remedies [...] are not always adequate to ensure compliance with the relevant Community provisions particularly at a stage when infringements can be corrected” (recitals 2 and 4 of Directive 89/665/EEC, OJ n° L 395 of 30 Dec. 1989 p. 0033-0035). Cited in: F. Bofala, L’impact des directives- recours sur l’organisation des voies de droit internes et les modalités d’exercice par le juge administratif français de son office. Un aspect de l’encadrement de l’autonomie procédurale des États membres [The impact of remedies- directives on the organisation of internal legal remedies and the procedures for the French administrative judge for exercising its functions. An aspect of the guidance on the Member States’ procedural autonomy], RTD Eur. 2002, p. 499.

¹²⁹ L. Ravo, The role of the Principle of Effective Judicial Protection in the EU and its Impact on National Jurisdictions. In: Sources of Law and Legal Protection. Triestine Lecture, EUT Edizioni Università di Trieste, 2012, p. 108.

¹³⁰ See in that connection, J. Dupont-Lassalle, La « subsidiarité juridictionnelle », instrument de l’intégration communautaire? [The “jurisdictional subsidiarity”, a tool for Community integration?], Éditions juridiques associées [Associated legal editions]. Droit et société [Law and society], 2012/1 n° 80, p. 47 to 71.

¹³¹ D. Simon & A. Barav, La responsabilité de l’administration nationale en cas de violation du droit communautaire [The accountability of the national administration in case of violation of Community law]. RMC 1987, p. 165, esp. p. 169; M. Wathelet, La répétition des montants payés en violation du droit communautaire [The recovery of sums paid in violation of Community law]. In: Scritti in onore di Giuseppe Federico Mancini, Giuffrè, 1998, p. 1033. Cited in: M. Wathelet & S. Van Raepenbusch, Les relations entre les Cours constitutionnelles et les autres juridictions nationales, y compris l’interférence en cette matière, de l’action des juridictions européennes [The relations between the constitutional courts and the other national jurisdictions, including the interference in that matter resulting from the activities of the European courts]. Rapport de la Cour de justice des Communautés européennes [Report from the Court of Justice of the European Communities]. Conférence des Cours constitutionnelles européennes [Conference of the European Constitutional Courts], XII Congress, Brussels, Palais d’Egmont, 14-16 May 2002, p. 15. Besides, see on the procedusalisation of the subsidiarity, A. Portuese, The Principle of Subsidiarity as a Principle of Economic Efficiency. Columbia Journal of European Law. 2011, Vol. 17, p. 250.

¹³² See F. Fabbrini, The Margin of Appreciation and the Principle of Subsidiarity: A Comparison. In: M. Andenas, E. Bjorge & G. Bianco, A Future for the Margin of Appreciation? Courts - The Danish National Research Foundation’s Centre of Excellence for International Courts. January 2015.

¹³³ See D. Spielmann, Subsidiarité: une médaille à deux faces. Dialogue entre juges, Cour européenne des droits de l’homme, Conseil de l’Europe [Subsidiarity: a coin with two sides. Dialogue between judges, European Court of Human Rights, Council of Europe]. Strasbourg, Jan. 2015, p. 6; See also M. Tümay, The “Margin of Appreciation Doctrine” Developed by the Case Law of The European Court of Human Rights, Ankara Law Review, Vol. 5, n° 2/2008, p. 203-206. See F. Sudre, Droit européen et international des droits de l’homme [European and International Human Rights Law]. Paris, PUF, 7th ed. 2005, esp. p. 216 et seq. Cited in: D. Simon, L’intérêt général national vu par les droits européens [The general national interest seen through the European rights]. Colloque du Conseil constitutionnel [Seminar of the Constitutional Council], 6 Oct. 2006. Cahiers constitutionnels de Paris I [Constitutional notebooks of Paris I], Dalloz, 2006. Prof. Simon adds that “it is a question to some extent of a principle of subsidiarity that leaves to national authorities a discretionary power which can be guided only by the requirements of the Convention”, see ibid.

• Université: University of Strasbourg (Centre for International and European Studies)
• Cours: European Tax Law
• Auteur: Lyubomir Antonov (Auteur)
• Année de publication: 2023
• Pages: 477
• N° de catalogue: V1365236
• ISBN (PDF): 9783346895301
• ISBN (Livre): 9783346895318
• Langue: anglais
• mots-clé: Law, Taxes, Taxpayers, Court of Justice of the European Union, European Court of Justice, CJEU, European Court of Human Rights, ECtHR, Fiscal, Procedural, Rights, European Convention on Human Rights, ECHR, Safeguards, Procedural Safegaurds