observatory on the protection of taxpayers’ rights...no explicit reference to the charter in the...

Observatory on the Protection of Taxpayers’ Rights

Below you will find a report prepared by Katerina Perrou and Natalia Vorobyeva,

representatives of Academia and the Judiciary respectively, Reporters of the OPTR Unit for

the European Union.

This report contains a summary of court cases, in which issues regarding the practical

protection of taxpayers’ rights were discussed and decided in 2018, in 12 relevant areas

identified by Prof. Dr. Philip Baker and Prof. Dr. Pasquale Pistone at the 2015 IFA Congress on

“The Practical Protection of Taxpayers’ Fundamental Rights”:

1. European Court of Human Rights: this report condenses cases decided in 2018, as well

as a non-exhaustive list of cases dealing with tax issues communicated to the Court in

tax matters throughout 2018, relevant for the European Charter of Human Rights.

2. European Court of Justice: this report abridges cases decided and pending in the Court

in tax matters during 2018, relevant for the European Charter of Human Rights and

the Treaty on the Functioning of the European Union.

© 2018 IBFD. No part of this information may be reproduced or distributed without permission of IBFD.

1

Report prepared by Dr. Katerina Perrou.

Information updated up to 31-12-2018

Summary

There were four cases decided in 2008 that are relevant for EU Charter of Fundamental Rights:

(i) Two of them contain explicit references to the relevant articles of the Charter:

Case C-533/16, Volkswagen, regarding limitation periods fort VAT refund and the right to good administration (Article 41)

Case C-34/17, Donnellan, regarding assistance in the collection of taxes and the non-notification of the act imposing the tax penalties to the

penalties in time for him to file a suit, depriving him from the right to a fair trial and rendering the request for assistance in the collection of

taxes illegal (Article 47)

(ii) two of them did not make any explicit reference to the articles of the Charter but the Charter provisions were discussed in the Opinion of the

AG:

Case C-648/16, Fortunata, regarding the calculation of VAT liabilities on sectoral study and not on the actual transactions of the person and the

right of defence of the person (Article 48)

Case C-574/15 (GC), Scialdone, regarding the application of the most lenient penalty to a person who has been criminally charged in his

capacity as legal representative of a company that was fined for underreporting VAT and the application of the principle of legality and

proportionality of criminal offences and penalties (Article 49).

At the end of 2018 there were also four cases pending before the Court:

- Case C-80/18, UNESA, regarding the imposition of a heavier tax burden on nuclear generators in comparison with other electricity

companies and the principle of equality and prohibition of discrimination (Articles 20 and 21)

- Case C-482/18, Google Ireland, regarding the compatibility of: the imposition of a fine daily, which is tripled due to the inability of the

taxpayer to know about the fine imposed (and make good its omission) before the next penalty is imposed; the lack of an administrative

procedure to challenge the penalty; and the lack of oral hearing in the administrative court proceedings, with the right to good

administration and the right to a fair trial (Articles 41 and 47)

- Case C-189/18, Glencore, regarding the compatibility with the right to a fair trial of the situation of a recipient of invoices, who is not

party to the tax proceedings against the issuer of the invoices, during which the tax authorities reclassified the transaction that took place

between the two parties (Article 47)

- Case C-469/18, IN, regarding the compatibility with the right to a fair trial of the use of evidence obtained in violation of the right to

respect for private life as guaranteed in Article 7 EUCFR (Article 47).

2

Lastly, even if it is not included in the tables, it is worth mentioning that in 2018, the Commission decided to send a letter of formal notice

to Bulgaria (MEMO/18/1444 of 8 March 2018), asking it to amend its VAT rules that require small companies trading in fuel to provide

excessive amounts of money in advance to guarantee their ability to pay the VAT bill, whereas big companies only need to deposit a guarantee

of an amount equal to the VAT due for their transactions, as this legislation is considered not to be compatible with EU law and the right to

conduct business (Article 16).

EU Charter of Fundamental Rights: Cases decided in 2018

EU Charter Case Date Facts Decision Comments

Article 41 –

Right to good

administration

C-533/16,

Volkswagen

21 March 2018 In 2012, the Slovak tax authority

denied a refund of VAT related to

the period from 2004 to 2006, due

to the expiry of the limitation

period of five years provided for

by Slovak law. In this regard, it

held that the entitlement to a

refund of VAT arose on the date

of delivery of the goods, namely

the date the VAT had become due,

with the result that the right to

claim a refund for the period from

2004 to 2006 had expired by the

time the application for a refund

was submitted.

Volkswagen questioned this

decision and the national court

referred the case to the Court for a

preliminary ruling, asking, among

others, whether the principles of

legal certainty, legitimate

expectations and the right to good

EU law must be

interpreted as meaning

that it precludes

legislation of a

Member State under

which, in

circumstances such as

those at issue in the

main proceedings in

which the value added

tax (VAT) was

charged to the taxable

person and paid by it

several years after

delivery of the goods

in question, the benefit

of the right to claim a

refund of VAT is

denied on the grounds

that the limitation

period provided for by

that legislation for the

§52: In view of the answer

given to the first to fourth

questions, from which it

follows that the

compatibility of national

legislation or national

practice with EU law may, in

circumstances such as those

at issue in the main

proceedings, be assessed in

light of Directive 2006/112,

there is no need to examine

the question regarding the

compatibility of the national

legislation with Article 41 of

the Charter.

3

administration under Article 41 of

the Charter of Fundamental Rights

of the European Union may be

interpreted as precluding an

interpretation of the national

legislation under which, for the

purposes of observance of the

time limit for claiming a tax

refund, the time of the decision of

the administrative authority on the

tax refund is decisive, and not the

time at which the tax refund is

claimed by the taxable person.

exercise of that right

began to run from the

date of supply and

expired before the

application for a

refund was submitted

4

Article 47 –

Right to an

effective remedy

and to a fair trial

C-34/17,

Donnellan

26 April 2018

In 2002 the customs office of

Patras issued a notice for the

imposition on Mr Donnellan of an

administrative penalty of

EUR 1.097.505,00 on the basis

that a cargo seized in July 2002 in

a truck he was driving contained

171.800 packets of contraband

cigarettes. By decision of 15 July

2009, by way of a follow-up to the

notice of 27 April 2009, the

customs office of Patras imposed

a fine of EUR 1 097 505 on

Mr Donnellan. The same day, that

fine was published in the Official

Journal of the Hellenic Republic.

On 14 November 2012, the Greek

authorities sent to the

Commissioners, in English, a

request for recovery, within the

meaning of Article 10 of Directive

2010/24, relating to that fine of

EUR 1 097 505, increased by

interest of EUR 384 126.76 and

costs or penalties of

EUR 26 340.12.

Mr Donnellan argues that he was

deprived of his right to an

effective remedy in Greece and

that, in those circumstances, a

positive response to that request

Article 14(1) and (2) of

Council Directive

2010/24/EU of

16 March 2010

concerning mutual

assistance for the

recovery of claims

relating to taxes, duties

and other measures,

read in the light of

Article 47 of the

Charter of

Fundamental Rights of

the European Union,

must be interpreted as

not precluding an

authority of a Member

State from refusing to

enforce a request for

recovery concerning a

claim relating to a fine

imposed in another

Member State, such as

that at issue in the

main proceedings, on

the ground that the

decision imposing that

fine was not properly

notified to the person

concerned before the

request for recovery

was made to that

§58: «Moreover, this

interpretation is supported by

Article 47 of the Charter and by the case-law of the

Court concerning the service

and notification of judicial

documents. It follows in

particular from that case-law

that, in order to ensure

respect for the rights laid

down in Article 47 of the

Charter, it is important not

only to ensure that the

addressee of a document

actually receives the

document in question but

also that he is able to know

and understand effectively

and completely the meaning

and scope of the action

brought against him abroad,

so as to be able effectively to

assert his rights in the

Member State of

transmission (see, to that

effect, judgment of

16 September 2015, Alpha

Bank Cyprus, C-519/13,

EU:C:2015:603,

paragraphs 31 and 32 and the

case-law cited). Such

considerations are also

5

for recovery cannot be given by

the Commissioners.

authority pursuant to

that directive.

relevant in the context of

Directive 2010/24.»

6

C-648/16,

Fortunata

21 November

2018

See under Article 48 See under Article 48 See under Article 48

Article 48 –

Presumption of

innocence and

right of defence

C-648/16,

Fortunata

21 November

2018

As a taxable person for the

purpose of VAT, Ms Fontana was

subject to a tax adjustment

procedure for the 2010 tax year.

On 14 May 2014, the tax

authorities sent to the applicant in

the main proceedings an invitation

to appear before it, which led to

the opening of an inter partes tax

adjustment procedure.

During that procedure,

Ms Fontana challenged the

amount of the tax adjustment

which was planned to be notified

to her and which was determined

on the basis of the sector study

relating to the category of

accountants and tax consultants.

On 24 December 2014, the tax

authorities sent to Ms Fontana a

tax assessment notice concerning

personal income tax, regional tax

on productive activities and VAT

payable for the 2010 tax year.

The taxpayer complained that the

tax authorities had wrongly

Council Directive

2006/112/EC of

28 November 2006 on

the common system of

value added tax, and

the principles of fiscal

neutrality and

proportionality, must

be interpreted as

meaning that they do

not preclude national

legislation, such as that

at issue in the main

proceedings, which

authorises tax

authorities, in the event

of serious differences

between declared

revenue and revenue

estimated on the basis

of sector studies, to use

extrapolation, based on

such sector studies, in

order to determine the

amount of turnover

achieved by a taxable

No explicit reference to the

Charter in the judgment,

where the right of defence is

mentioned but not Article 48

EUCFR.

Reference to Articles 47

and 48 of the Charter only in

the Opinion of Advocate

General Wahl, delivered on

22 March 2018 (paras. 50-

56).

7

applied to her situation the sector

study relating to accountants and

tax consultants, instead of the

study relating to human resources

management advisers, which the

applicant in the main proceedings

considers to be her main activity.

She also argued that the amount of

VAT had been assessed on the

basis of a sector study which does

not give a consistent image of the

income generated by her company

in terms of proportionality and

consistency.

person and,

consequently, to carry

out a tax adjustment

requiring the payment

of additional value

added tax (VAT),

provided that that

legislation and its

application enable the

taxable person, in

compliance with the

principles of fiscal

neutrality,

proportionality and the

right of defence, to

challenge the results

obtained by that

method, on the basis of

all of the evidence to

the contrary available

to him, and to exercise

his right of deduction

in accordance with the

provisions in Title X of

Directive 2006/2012,

which it is for the

referring court to

verify.

Article 49 -

Principles of

legality and

proportionality of

C-574/15,

Scialdone

GC, 2 May 2018 Imposition of a criminal fine on

the sole director and legal

representative of a company that

was sanctioned with an

Council Directive

2006/112/EC of

28 November 2006 on

the common system of

The judgment does not

contain any reference to the

Charter. The Opinion of

Advocate General Bobek,

8

criminal offences

and penalties

administrative penalty for

underreporting VAT. After the

imposition of the criminal penalty

to Mr. Scialdone, the legislation

changed and more lenient rules

were adopted, that led to the

extinction of criminal liability for

cases such as that of Mr.

Scialdone.

value added tax, read

in conjunction with

Article 4(3) TEU, and

Article 325(1) TFEU

must be interpreted as

not precluding national

legislation which

provides that failure to

pay, within the time

limit prescribed by

law, the value added

tax (VAT) resulting

from the annual tax

return for a given

financial year

constitutes a criminal

offence punishable by

a custodial sentence

only when the amount

of unpaid VAT

exceeds a

criminalisation

threshold of

EUR 250 000, whereas

a criminalisation

threshold of

EUR 150 000 is laid

down for the offence

of failing to pay

withholding income

tax.

delivered on 13 July 2017

discusses extensively

Article 49 of the Charter,

that sets out the principles of

legality and proportionality

of criminal offences and

penalties.

9

EU Charter of Fundamental Rights: Pending Cases as of 31-12-2018

EU Charter Case Published Questions referred Comments

Article 7 – Respect

for private and family

life

C-469/18, IN OJ C 427,

26.11.2018, p.4

See under Article 47 See under Article 47

Article 20 – Equality

before the law

C-80/18, UNESA OJ C 182,

28.5.2018, p. 2–3

[1]....

[2]…..

[3]….

4. Do the ‘polluter pays’ principle in

Article 191(2) of the Treaty on the Functioning of

the European Union, the principles of equality

and non-discrimination in Articles 20 and 21 of

the European Charter of Fundamental Rights, and Articles 3 and 5 of Directive 2005/89/EC, in

so far as they seek to ensure ‘the proper

functioning of the internal market for electricity’

and call on Member States to ensure ‘that any

measures adopted in accordance with this

Directive are non-discriminatory and do not place

an unreasonable burden on the market actors’,

preclude a provision in national legislation that

requires all electricity companies (other than

generators of hydroelectricity, which is classified

as renewable energy) to fund the tariff deficit, but

which imposes a particularly heavy tax burden on

nuclear generators, which are required to

contribute more than other actors in the energy

market, some of which are more polluting, but that

do not have to pay these charges, the reasons

given being grounds of environmental protection

in view of the risks and uncertainties inherent in

Request for a preliminary

ruling from the Tribunal

Supremo (Spain) lodged on

6 February 2018 —

Asociación Española de la

Industria Eléctrica

(UNESA) v Administración

General del Estado,

Iberdrola Generación

Nuclear, S.A.U.

10

nuclear activities, without specifying the costs

involved or stipulating that the revenue raised is to

be used for environmental protection purposes

(and given that waste management and storage are

already covered by other levies, and nuclear

generation companies assume civil liability), and

that distorts the free competition required by the

liberalised internal market by favouring other

electricity generators that do not have to pay

environmental taxes even when their sources of

production are more highly polluting?

[5]…..

Article 21 – Non-

discrimination

C-80/18, UNESA OJ C 182,

28.5.2018, p. 2–3

See under Article 20 See under Article 20

Article 41 – Right to

good administration

C-482/18, Google

Ireland

OJ C 352,

1.10.2018, p. 23–

24

[1]….

[2]…..

[3]…..

[4]…..

6. In view of the right to good administration

established in Article 41(1) of the Charter of

Fundamental Rights (‘the Charter’), should

Article 56 TFEU be interpreted as meaning that this

obligation is not satisfied where the fine for failure

to comply is imposed in the form of a daily fine,

meaning that the amount of the fine is tripled while

the service provider is still unaware of the earlier

decision and is therefore unable to make good its

omission before the imposition of the next fine?

7. Should Article 56 TFEU, as read with the right

to good administration in Article 41(1) of the


ruling from the Fővárosi

Közigazgatási és

Munkaügyi Bíróság

(Hungary) lodged on 24

July 2018 — Google

Ireland Limited v Nemzeti

Adó- és Vámhivatal Kiemelt

Adó- és Vámigazgatósága

11

Charter, the right to be heard in Article 41(2)(a)

of the Charter, and the right to an effective

remedy and to a fair trial in Article 47 of the

Charter, be interpreted as meaning that these

requirements are not satisfied where the decision

cannot be contested in an administrative procedure

and where, in the administrative court proceedings,

only documentary evidence is admissible and the

court cannot hold a hearing?


an effective remedy

and to a fair trial

C-189/18,

Glencore

OJ C 221,

25.6.2018, p. 6–7

Various questions regarding the rights of the other

party to a transaction (the recipient of the invoice),

in cases where the tax authorities instigate

proceedings against the first party of the

transaction (the issuer of the invoices) during

which a reclassification of the transaction takes

place; it is understood that the recipient is no party

to the procedures taking place and concerning the

issuer of the invoices.


ruling from the Fővárosi

Közigazgatási és

Munkaügyi Bíróság

(Hungary) lodged on 13

March 2018 — Glencore

Agriculture Hungary v

Nemzeti Adó- és Vámhivatal

Fellebbviteli Igazgatósága

C-482/18, Google

Ireland

OJ C 352,

1.10.2018, p. 23–

24

See under article 41 See under article 41

12

C-469/18, IN OJ C 427,

26.11.2018, p.4

Should Article 47 of the Charter of

Fundamental Human Rights of the European

Union, in cases of value added tax, be interpreted

as precluding in all circumstances the use of

evidence obtained in violation of the right to

respect for private life as guaranteed by

Article 7 of the Charter, or does it leave room for

a national regulation under which the court which

has to decide whether such a piece of evidence can

be used as the basis for a VAT assessment has to

make an evaluation such as the one set out above

under paragraph 4 of this judgment.


ruling from the Hof van

Cassatie (Belgium) lodged

on 19 July 2018 — IN v

Belgische Staat

This document contains tax cases decided in 2018 by the European Court of Human Rights and a non-exhaustive list of cases dealing with tax

issues that were communicated to the Court during 2018.

The information is updated until 31 January 2019.

European Court of Human Rights: cases decided in 2018

ECHR Article Case Date Facts Decision Comments

Article 6 – Right to a

fair trial Gohe v France 3 July 2018 See under Article 8 See under Article 8 See under

Article 8

Homan and Others

v. Belgium

(no. 52961/09 and 3

others)

23 January 2018 This case is about solidary

obligation of the

applicants to pay the

amounts of evaded tax as

a result of criminal

conviction.

The applicants were

convicted for tax-related

offences and sentenced to

tax fines. They were also

obliged to pay the evaded

tax in the amount of EUR

1,853,000 in the first case,

and EUR 235,000 in the

second case.

The Court declared all

applications inadmissible

as incompatible ratione

materiae with the

Convention provisions.

The Court rejected the

applicants’ allegations

that this solidary

obligation to pay the

evaded tax constituted a

“penalty”. It pointed out

that this measure was

limited to the payment of

the tax evaded and was

aimed at repairing the

damage suffered by the

State rather than at

punishing the applicants

for unlawful behavior.

Decision on

admissibility


respect for private

and family life

Gohe v France 3 July 2018 This case concerned

house searches and

subsequent seizures,

carried out at the homes

The Court declared the

applications inadmissible

as being manifestly ill-

founded. It observed, in

Decision on the

admissibility

of third parties, on the

basis of which the

applicants underwent

separate tax inspections

which led in some cases

to tax assessment

proceedings and in one

case to a conviction for

tax fraud. The applicants

complained in particular

of the dismissal of their

submissions at all stages

of the proceedings and

their inability to challenge

the lawfulness of the

house searches and

seizures carried out.

particular, that where no

search or seizure

operations had been

carried out at an

applicant’s own home or

premises, he or she could

not claim to be the victim

of a breach of the right to

respect for private life or

the home. The Court also

found that the domestic

proceedings as a whole

had been fair. The

applicants had been

represented by lawyers

throughout the

proceedings and had thus

had an opportunity to

challenge the lawfulness

of the proceedings and

put forward their defence

arguments. The domestic

courts had also expressly

examined the issue of

compliance with the

adversarial principle and

had ruled out any

violation.

Brazzi v Italy 27 September

2018

This case concerned a

search carried out by the

Italian tax authorities in a

house that the applicant

The Court held that there

had been a violation of

Article 8 (right to respect

for the home) of the

had owned in Italy since

2009 and where his wife

and children lived during

the school year. The

applicant complained in

particular of a breach of

his right to respect for his

home.

Convention. It found in

particular that the

interference with the

applicant’s right to

respect for his home had

not been in accordance

with the law, within the

meaning of Article 8 § 2

of the Convention,

because he had not had

the benefit of the effective

oversight required by the

rule of law in a

democratic society. No

judge had examined the

lawfulness or necessity of

the warrant for the search

of his home, neither

before nor after the

search. Italian law did not

therefore provide

sufficient upstream or

downstream safeguards

against risks of abuse of

power or arbitrariness.

Article P1-1 – Right

to peaceful

enjoyment of

possessions

Cacciato v Italy and

Consiglio v Italy

16 January 2018 The applicants

complained about the

expropriation of land by

municipal authorities and

in particular the tax of

20% that they had to pay

on the compensation they


applicants’ complaints

about the tax

inadmissible as being

manifestly ill-founded. It

found in particular that

the tax had not upset the

Decisions on the

admissibility

received. They argued in

particular that it meant

that they had received less

than the market value of

the land.

balance that had to be

maintained between the

applicants’ rights and the

public interest in

collecting taxes,

particularly given the

room for manoeuvre

(“margin of

appreciation”) which

countries had in fiscal

policy. The tax, including

the rate and the means of

enforcement, had been

well within the area of the

Italian legislature’s

discretionary judgment. A

level of 20% was also not

prohibitive. Furthermore,

the tax had not led to the

compensation awards

being effectively nullified

or to undue financial

hardship for the

applicants.


to peaceful

enjoyment of

possessions

Euromak Metal Doo

v. the former

Yugoslav Republic

of Macedonia

(no. 68039/14)

14 June 2018 This case concerned the

applicant company’s

complaint about the

State’s failure to award

the VAT deductions due

to circumstances which

were beyond the

company’s control.

The Court held that there

had been a violation of

Article 1 of Protocol no. 1

to the Convention.

Relying on the reasoning

in the case “Bulves” AD

v. Bulgaria (no. 3991/03,

§ 71, 22 January 2009),

Following an audit by the

Internal Revenues Office

in 2009, the applicant

company was informed

that it made errors in

calculating its VAT

declaration on received

goods because its

suppliers had failed to

declare or pay tax to the

State. Therefore the

company could not

benefit from VAT

deductions, as it had done

in the past.

the Court found that (i)

the applicant company

had fully complied with

its VAT obligations, (ii)

the domestic authorities

had deprived it of the

right to deduct VAT

owing to the suppliers’

failure to meet its tax

obligations, (iii) the

applicant company did

not have and could not

have had knowledge of

whether its suppliers had

met their VAT

obligations. The Court

concluded that the

applicant company had

born an excessive

individual burden which

upset the fair balance

between the general

interest of the community

and the requirements of

the protection of the right

to property.


to peaceful

enjoyment of

possessions

Lutsenko v. Russia

(no. 40508/13)

25 September

2018

This case concerns the

applicant’s complaint

about the court’s order to

pay the amount of income

tax which had been

withheld at source and


case inadmissible for

non-exhaustion of

domestic remedies. It

pointed out that the

applicant should have

Decision on

admissibility

which he had never

received. In 2011 the

applicant, who was the

head of the city

administration at the time,

received a bonus from the

regional Government for

the effective performance

of his duties in 2010. The

bonus was paid to his

bank account with the

deduction of 13% income

tax withheld at source. In

2012 the courts granted

the prosecutor’s claim of

unjust enrichment and

ordered the applicant to

repay the municipal

budget this bonus in the

full amount, including the

income tax.

applied for the recovery

of the income tax to the

tax authority in terms of

procedure provided for by

the Tax Code. This

procedure for the

repayment of the

improperly levied tax has

a different purpose than

the unjust enrichment

procedure initiated by the

prosecutor against the

applicant. Moreover, the

13% income tax was paid

mainly to the regional

budget, while the

applicant had to return the

full amount of the bonus

to the municipality.


to peaceful

enjoyment of

possessions

Article 6 – right to a

fair trial

Wallace v. France

(no. 9793/16)

20 November

2018

This case concerns the

applicant’s right of access

to court and his double

taxation in the United

Kingdom and France.

The applicant was an

employee of a British

company who worked

also in France. French tax

authorities considered that

he exercised a self-


case inadmissible as

manifestly ill-founded.

As to Article 6 § 1

complaint that the

applicant’s right of access

to court was restricted by

the Conseil d’Etat’s

refusal to examine the

letter of 2014, the Court

reminded that it’s not its

Decision on

admissibility

employed professional

activity in France and

ordered him to pay

income tax and VAT with

penalties. The applicant’s

complaints to the

administrative courts were

dismissed, based, inter

alia, on the British tax

authorities’ reply of 2012

that they had no

information about his

income received after

2003. The applicant than

lodged an appeal to the

Conseil d’Etat; he

enclosed a new letter from

the UK tax authorities of

2014 received after the

trial. The letter confirmed

that he was an employee

of the British company

and his tax was deducted

at source and paid in the

UK. The Conseil d’Etat

refused to admit this letter

as new piece of evidence

because it had not been

examined by the lower

courts. The applicant’s

appeal was thus rejected.

task to review the

findings of the domestic

courts. It pointed out that

the alleged error in the

applicant’s tax situation

was attributable to the

British rather than French

tax authorities. Turning to

the A1P1 complaint about

double taxation, the Court

stated that it cannot

speculate whether the

outcome of proceedings

in the French courts

would have different if

the letter of the UK tax

authorities of 2014 was

examined in due course. It

further reminded the

importance of a domestic

remedy which ensures the

protection of the right to

property as one of the

factors to be taken into

account when assessing

whether the balance

between public interest

and fundamental

individual rights had been

struck. However, in this

case the applicant had

access to proceedings

which met these

requirements.

European Court of Human Rights: Cases communicated in 2018

ECHR Article Case Date

Communicated

Issues Comments


a fair trial

Sebastian Rechul v

Poland (69143/12)

9 January 2018 Invoquant l’article 6§1 de la

Convention, le requérant se plaint d’une

violation de son droit d’accès à un

tribunal au motif que le tribunal de

district aurait refusé de l’exonérer du

paiement de la taxe judiciaire exigée

pour le dépôt d’un acte introductif

d’instance.

Il allègue également que son droit

d’accès à un tribunal garanti par l’article

6 § 1 de la Convention a été méconnu en

raison de l’obligation qui lui aurait été

faite dans le jugement du tribunal

régional de payer les honoraires d’avocat

de la partie gagnante – représentée par le

bureau de l’avocat général de l’État, et ce

alors qu’il aurait été exonéré des frais de

justice en raison de son indigence.

BALTIC MASTER

LTD v Lithuania

(55092/16)

16 May 2018 The applicant company complains under

Article 6§1 that the domestic courts’

decision not to request a preliminary

ruling from the CJEU lacked reasoning.

The applicant company also complains

under Article P1-1 that it had to pay

various taxes and has been deprived of a

substantial amount of money.

Kolev v Bulgaria

(38482/11)

7 June 2018 See under Article 8 See under Article 8

EKSIM

INTERNATIONAL

TRADE JSC v

Turkey (38599/10)

22 November 2018 The applicant company initiated

proceedings after having followed the

procedure described in the customs

authorities’ payment notice and

challenged the customs tax and penalty

imposed on it. The case was dismissed

by the Tax Court on the grounds that the

applicant company had failed to comply

with the required time-limit as he must

have brought the case without having

recourse to the remedies pointed out by

the customs authorities in the official

notice.

The applicant company complains of

a violation of its rights under Article 6 §

1 of the Convention.

Right of access to court in the

context of taxation

proceedings. The company

brought its case following the

procedural steps pointed out

by the administrative

authorities.

S.C.MIC

PETROCHIM

INDUSTRIE SRL v

Romania (74120/14)

25 November 2018 Were the tax surcharge proceedings

opened against the applicant company

fair and conducted within a reasonable

time in accordance with the requirements

of Article 6 of the Convention? In

particular, did the tax surcharge

proceedings respect the principles of

legal certainty and equality of arms and

were they concluded speedily.

See also under Article P7-4

(ne bis in idem)

OTIAK CJSC

v. Armenia

(no. 2512/15)

6 April 2018 The applicant company paid VAT and

profit tax for the amount of

compensation received from the

Government for the expropriation of its

land. Later the company initiated civil

proceedings seeking to recover the

amounts of paid taxes on the grounds

that it was not liable to pay them. It also

sought to have civil fines imposed on

State authorities for the unlawful levy of

taxes and unjust enrichment. The

domestic courts held that the company

was not liable to pay VAT and profit tax

but rejected the claim in part concerning

civil fines for the lack of jurisdiction.

The applicant company then initiated

administrative proceedings seeking to

recover the unlawfully levied taxes and

requesting that civil fines be imposed.

The administrative courts granted its

claim with respect to the recovery of

taxes but discontinued the claim

concerning imposition of civil fines.

The applicant company complains under

Article 6 § 1 of the Convention that its

right of access to a court was breached,

as it was deprived of the opportunity to

have some of its claims determined by

the domestic courts.

Right of access to court in the

context of tax proceedings.

Pascal Genet v.

France (no.

7 November 2018 The applicant, a former manager of the

company, was convicted by the courts to

The case concerns the alleged

unfairness of proceedings

56225/16)

18 months’ suspended imprisonment on

the charge of tax evasion. Together with

another codefendant and the company he

was held liable for the payment of the

evaded tax and related penalties during

his period of management. Meanwhile,

the company was discharged from the

payment of VAT. Before the Criminal

Chamber of the Court of Cassation, the

applicant, in an additional memorial,

tried to argue that he could not be

convicted of tax evasion while the

company had been discharged from the

payment of VAT and penalties.

However, the Chamber considered that

he had filed his additional memorial too

late and declared it inadmissible without

examining it on the merits. It further

declared inadmissible for the same

reason the priority question of

constitutionality (QPC) relating to

Article 1741 of the General Tax Code

which provides for the tax fraud

committed by the applicant.

concerning tax evasion before

the Criminal Chamber of the

Court of Cassation (Article 6

§ 1).

Article 7 – No

punishment

without law

Paneva v FYRoM

and two other

applications

(17778/16)

20 June 2018 The case concerns the imposition of a

70% income tax (higher than the general

tax rate) for undeclared and untaxed

revenue that the applicants had obtained

while in office. Since the tax applied also

to taxed revenue obtained before the date

the law became operable, is this

Application 7735/17 concerns

the Personal Income Tax Act.

See also under Article P1-1

retroactive application contrary to Article

7?

Ljubas v. Croatia

(no. 4101/14)

4 July 2018 The case concerns the applicant’ s

complaint that the manner in which the

domestic courts interpreted the

succession of proscription related to the

evasion of taxes and other public

contributions under the old and new

Criminal Codes led to his punishment

under a provision that was not applicable

to his case.

See also under Article 6

Article 8 - Right to

respect for private

and family life

Kolev v Bulgaria

(38482/11)

7 June 2018 The applicant, an accountant, complains

under Article 8 (relying in addition on

Article 6) that the search of his office for

information concerning his clients was

disproportionate and that the authorities

seized numerous items were unrelated to

the aims of that search. He points out

that the search and seizure paralysed the

work of his company and damaged his

good name and professional reputation.

The applicant complains in addition

under Article 13 that he did not have any

effective domestic remedy in relation to

his complaints above.

Ilieva v Bulgaria

(22536/11)

20 September 2018 The case concerns search in the home of

a couple, during which numerous items

were seized. The applicant complains

under Article 8 of the Convention of the

search of her flat and the premises of the

company managed by her, and of the

seizure of numerous items, arguing that

these actions were in breach of domestic

law, since the circumstances were not

such as to justify search and seizure

without a prior judicial authorisation.

The applicant also complains

under Article 13

Shammat v Romania

(15807/14)

16 October 2018 La requête concerne la divulgation des

données personnelles du requérant (nom,

prénom, domicile et numéro

administratif du logement) par la mairie

de son domicile en vue de leur

publication, à trois reprises, dans un

quotidien local. Cette publication visait à

informer le public du défaut de paiement

par certains contribuables, dont le

requérant, des taxes dues au budget de la

communauté locale. Le requérant a

formé une action civile en responsabilité

délictuelle et les tribunaux internes ont

reconnu qu’en divulguant les données

personnelles du requérant, sans son

accord, l’autorité locale avait méconnu

l’article 8 de la Convention. Le requérant

s’est vu octroyer en première instance

une réparation civile d’une valeur de 1

000 euros, qui a été réduite, en recours, à

50 euros par l’arrêt du 9 septembre 2013

du tribunal départemental de Bihor, au

motif que la loi ne comportait pas de

critères précis.

Article 10 -

Freedom of

expression

Halet v Luxembourg

(21884/18)

27 November 2018 L’affaire concerne la condamnation

du requérant à une amende de 1 000

EUR dans le cadre de l’affaire dite

« Luxleaks ».

Le requérant – à l’époque agent

administratif

chez PricewaterhouseCoopers (« PwC »)

– avait soustrait et révélé à un journaliste

quatorze déclarations fiscales de clients

de son employeur, qui furent utilisées

dans le cadre d’une deuxième émission

télévisée Cash Investigation (un an après

la diffusion de la première), portant sur

l’évasion fiscale massive pratiquée par

des entreprises multinationales. Dans le

cadre de son procès, le requérant invoqua

l’article 10 de la Convention et soutint,

entre autres, que la pertinence des

documents remis au journaliste était

acquise, les déclarations fiscales ayant

permis d’exploiter et d’analyser la

pratique des ATAs («Advance Tax

Agreement ») et de mettre en évidence

l’ampleur et l’inadéquation de ce

procédé ainsi que les gains fiscaux ainsi

réalisés.

La Cour d’appel, siégeant en matière

correctionnelle, estima que les

déclarations fiscales produites par le

requérant ne faisaient qu’entériner le

résultat de l’enquête journalistique et

étaient à ce titre certainement utiles au

journaliste, mais ne fournissaient aucune

information essentielle, nouvelle et

inconnue jusqu’alors. Elle considéra

également que, bien qu’ayant agi de

bonne foi, le requérant n’aurait su

profiter de la cause de justification du

lanceur d’alerte, puisque la mise en

balance des intérêts en jeu penchait vers

ceux de PwC, qui avait subi

nécessairement un préjudice du fait des

agissements du requérant. Dans la

fixation de la peine, la Cour d’appel tint

toutefois compte, à titre de circonstance

atténuante, de l’honorabilité du mobile

qui avait poussé le requérant à agir. Au

civil, le requérant fut condamné à payer

à PwC un euro symbolique à titre

d’indemnisation du dommage moral.

Article 13 – Right

to effective remedy

Kolev v Bulgaria

(38482/11)


Article 14 – No

discrimination

Kung v Switzerland

(73307/17)

15 May 2018 The case concerns the imposition of a tax

to a person who was acquitted from

military service. The taxpayer

complaints of discrimination based on

sex, since women are not liable to this

tax when exempted from military

service.

Article 14 – No

discrimination

Tulokas v Finland

(5854/18)

12 July 2018 An additional 6% tax was imposed on

pensioners whose annual pension

exceeded 45.000 euros. A the same time

the additional tax on the employed

taxpayers whose annual income

exceeded 100.000 euros was only 2%.

The taxpayer complaints that the

imposition of a higher tax on retired

taxpayers without any justification

constitutes discrimination on the ground

of age.

Taipale v Finland

(5855/18)

12 July 2018 An additional 6% tax was imposed on

pensioners whose annual pension

exceeded 45.000 euros. A the same time

the additional tax on the employed

taxpayers whose annual income

exceeded 100.000 euros was only 2%.

The taxpayer complaints that the

imposition of a higher tax on retired

taxpayers without any justification

constitutes discrimination on the ground

of age.

Article P1-1 -

Protection of

property

S.C. Totalgaz

Industrie SRL v

Romania (61022/10)

14 January 2018 The applicant company complains that

the lack of foreseeable legislation is a

breach of Article P1-1

AVTO ATOM DOO

KOCANI v FYRoM

(21954/16)

21 February 2018 The case concerns administrative

proceedings in which the applicant

company was ordered to pay value-

added tax (“VAT”) together with

interest, which it had previously

deducted from its tax obligation towards

the State. It concerned VAT deductions

based on invoices that it had obtained

from a supplier which had expressed

VAT on its invoices although it had not

been registered for VAT purposes. The

administrative authorities and two levels

of administrative courts dismissed the

applicant company’s arguments that it

had not been aware of the supplier’s

VAT status and that it should not suffer

financial consequences for errors on the

part of the supplier.

BALTIC MASTER

LTD v Lithuania

(55092/16)

16 May 2018 See under Article 6 See under Article 6

Paneva v FYRoM

and two other

applications

(17778/16)


IOFIL AE v Greece

(50598/13)

5 July 2018 The case concerns the imposition of a tax

on the applicant company for selling and

rebuying shares of a subsidiary company.

Due to a mistake by the accountant the

company reported the income as taxable

income. The company submitted a

corrected tax declaration, which was not

accepted by the Tax Authority. The tax

amounted to two thirds of the annual tax

the applicant company had to pay.

Maroslavac v

Croatia (64806/16)

26 November 2018 The case concerns the tax-related

administrative proceedings in which the

applicant, a public notary, was ordered to

pay a value added tax (VAT) for the

period between 1 January 2003 and 31

May 2007, profit tax for the period

between 1 January 2003 and 31

December 2006, and income tax for the

period between 1 January 2003 and 31

December 2005. The tax assessment was

based on the tax inspection of the

applicant’s financial activities which was

conducted over a period of four months.

The applicant complains, under

1. Was the interference with

the applicant’s right to the

peaceful enjoyment of her

possessions in the form of the

decision by the domestic

authorities ordering her to pay

taxes in accordance with the

conditions provided for by

law as required by Article 1

of Protocol No. 1 to the

Convention ?

2. If the interference was

lawful, did it impose an

excessive individual burden

Article 1 of Protocol No. 1, that she was

unable to effectively participate in

establishing her obligation to pay income

tax given that the order extending the tax

inspection to income tax had been served

to her only one day before the tax

inspection ended. She also complains

that the tax inspection took into account

her financial activities in 2001 and 2002

and that she was ordered to pay profit tax

for that period, even though the statutory

limitation period for doing so had

expired. She complains that the domestic

authorities never properly addressed her

complaints in that respect.

on the applicant? In

particular, did the tax-related

administrative proceedings in

the applicant’s case comply

with the procedural

obligations under Article 1 of

Protocol No. 1?

Hüseyin ÇAVUŞ v.

Turkey

(no. 53009/09)

26 October 2018 The application concerns the applicant’s

deprivation of his vehicle without having

been paid any compensation in return.

The applicant’s vehicle was seized by the

customs authorities as a guaranty in

order to secure the payment of

his tax debts. Subsequently, the applicant

paid the customs debt. However, his

request to receive the vehicle back was

rejected by the authorities as it had

already been sold to a third person in a

public auction, on account of the

applicant’s failure to reclaim the vehicle

within three-months from the date of

seizure. The applicant complains of a

violation of his rights under Article 1 of

Protocol No. 1 to the Convention.

1. Has the applicant been

deprived of his possessions in

the public interest, and in

accordance with the

conditions provided for by

law, within the meaning of

Article 1 of Protocol No. 1?

2. If so, was that deprivation

necessary to control the use of

property in accordance with

the general interest or to

secure the payment of taxes or

penalties?

3. Did that deprivation impose

an excessive individual

burden on the applicant,

taking into account that he

could not receive any

compensation for his vehicle

although he had fully paid

the taxes and penalties

imposed on him?

Article P7-4 – Ne

bis in idem

S.C.MIC

PETROCHIM

INDUSTRIE SRL v

Romania (74120/14)

25 November 2018 Has the applicant company been

investigated and tried twice for the same

offence within the meaning of Article 4

of Protocol No. 7 to the Convention?

See also under Article 6

observatory on the protection of taxpayers’ rights...no explicit reference to the charter in the...

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