Decisions of the echr affecting domestic laws in the financial and tax field

• Author: María Amparo Grau Ruiz
• Position: Professor Ph.D., Associate Dean for Institutional and International Relations, Faculty of Law, ?Complutense' University, Madrid, Spain
• Pages: 9-17

Maria Amparo Grau Ruiz

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LESIJ NO. XVIII, VOL. 1/2011

DECISIONS OF THE ECHR AFFECTING DOMESTIC LAWS

IN THE FINANCIAL AND TAX FIELD

María Amparo GRAU RUIZ∗

Abstract

Some would say that taxation and human rights is an oxymoron. An oxymoron is, of course,

the conjunction of two otherwise apparently irreconcilable concepts. I personally do not believe

that taxation and human rights are in any way irreconcilable or conflicting; I think human rights

are a fundamental aspect of taxation. Human rights limit what governments can do to their

citizens - to people affected by their decisions. I think at the moment we are at a very exciting

stage, where we are seeing the extension of human rights principles into the tax field, to provide

limits to what governments can do to taxpayers. It is part of the balance between the powers of the

State and the rights of taxpayers1.

Keywords: taxation, human rights, taxpayers, ECHR, authorities.

I. Preliminary remark

The current situation shows how apparently trivial issues in tax procedures reach the

European Court of Human Rights (ECHR). There has been a growing trend in controversies,

which seems to have experienced some changes regarding certain matters.

Among the main causes explaining the current situation, we could point out, first, the

general resistance to taxation that has been aggravated by the economic crisis. When the public

authorities have to fight against deficit, the tax officials may appear more anxious to recover tax

claims. Secondly, the creation of Agencies complicates the administrative structure. In addition

there are increasing international efforts to combat fraud. In the international context the

cooperation among administrations in international tax matters to fight avoidance and evasion has

lead to a huge exchange of information, with different standards.

The effects can be observed from a double perspective, in theory to reinforce the categories,

and in practice to try to solve the problems faced by professionals. Any effort to place taxation

within the rule of law is to be welcome, increasing the legal certainty. With the involvement of

lawyers and judicial authorities, the number of issues brought before Courts rises, but sometimes

there is a lack of expertise in this field and it is difficult to manage the existing workload.

The core issue is the fair balance between the duty to pay taxes and individual rights,

clarifying the legal statute of the taxpayer. In accordance with some Constitutions (i.e. the Spanish

one), the contributions to sustain public expenditure may find limits on the respect of fundamental

rights2. Therefore, the obligation to contribute with taxes is a public obligation and finds limits in

the application of article 6 of the European Convention on Human Rights.

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∗ Professor Ph.D., Associate Dean for Institutional and International Relations, Faculty of Law, „Complutense”

University, Madrid, Spain (e-mail: grauruiz@der.ucm.es).

1 Inspiring words by Professor Philip Baker that can be found at http://www.taxbar.com/gitc_review/

gitc_review_v1_n1.pdf (visited the 26th of June 2011).

2 In this sense, the Spanish Constitutional Court has discussed much about the bank secrecy and the search in the

taxpayers' premises.