Legal Protection against Discriminatory Tax Legislation: The Struggle for Equality in European Tax Law,

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Abstract

The focus of the contribution by Gribnau is the relationship between increasingly complex tax legislation and the principle of equality. He starts with a conceptual analysis of equality. Then the focus shifts to the character of the formal principle of equality. He argues that it is not as empty as is sometimes maintained because it guides the legislature by providing standards with respect to legitimate discriminations. Turning to tax law, the prevailing instrumentalism appears to make tax law vulnerable to unjustified classifications. Especially instrumentalist tax expenditures may be solely a response to pressures of interest groups without respect for the principle of equality. Gribnau argues that, while recognizing the margin of appreciation of the legislature, the courts should more strictly scrutinize the proportionality of the discriminations involved in these (exceptional) cases of arbitrary tax legislation. In 1998, the European Convention on Human Rights was incorporated in British law. However, Boyron doubts whether this document will go far enough in providing the required constitutional environment for the development of a fully operational principle of equality; more radical changes might be necessary in constitutional law. She argues that the adoption of a written document might be welcome to settle the political differences as regards the content of the principle of equality and many other constitutional principles, since constitutional rules ought to be debated and decided upon by the electorate so as to help facilitate a consensus. This is particularly relevant to the principle of equality in order to define the many choices which this difficult concept entails. Birk starts with the observation that the principle of equality is not a very efficient principle and it does not have very much effect on the tax law as a whole. This goes for Germany and Europe as well. The establishment of equality of the tax burden in Germany is a task which the legislature, the administration, and the courts are equally faced with. The fact that the German legislature is bound by the Constitution to tax equality leads to a constant testing of the legislative measures against the Constitution and, as a result, to a weakening of the legislature`s position. In Germany, in his opinion, experience has shown that it was a good decision to bind the legislature to the basic rights guaranteed in the Constitution. It seems that the confidence in the accuracy of the legislative decisions and in the respect for the constitutional principles is much stronger in the other member states of the European Union than in Germany. In Germany, the legislature is obliged over and over again, to prove the claimed constitutionality before the Federal Constitutional Court. Van den Berge deals with the application of the principle of non-discrimination as embodied in Article 14 of the European Convention on Human Rights and Article 26 of the International Covenant on Civil a
Original languageEnglish
Place of PublicationThe Hague
PublisherKluwer Law International
Number of pages152
ISBN (Print)9041199152
Publication statusPublished - 2003

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