"Protection of European taxpayers by the principle of equality"

J.L.M. Gribnau, J. Saddiki

Research output: Chapter in Book/Report/Conference proceedingChapterScientific

Abstract

In general, the formal definition of the principle of equality is basically the same in the countries compared in this contibution. On the other hand, the fact that courts apply this principle according to their national point of view may account for some differences. Consequently, the same factual situations that arise in each of the compared countries may be treated in different ways. In the first part of this contribution, the enforcement of the principle of equality with respect to taxation in the Netherlands was analysed. The Dutch Supreme Court leaves the legislature a wide margin of appreciation in answering the question of whether cases must be considered as alike and, if so, whether an objective and reasonable justification exists to nevertheless regulate those cases differently. The observation by the Court that a legal provision is discriminatory does not always mean that the taxpayer is successful. Immediate justice is not always done to the taxpayer: in some cases, the Court does not remove the discrimination and, in other cases, it leaves the case undecided. In these cases, the Court does not want to usurp the function of the legislature. Especially politically sensitive issues, for which more than one solution is available, are left to the legislature. In our opinion, the Court should be more activist in less politically sensitive issues in case of arbitrary decisions of the legislature. When more than one solution is available, the Court may leave the removal of the discrimination to the legislature, but should set a deadline for the legislature. In exceptional cases, the Court can even better not apply provisions which are the result of deliberately discriminatory naked preferences or deliberately maintained discriminations. In the second part, we offered a legal comparison which concentrated on the different sources of the principle of equality in tax law, the enforcement of this principle, and some aspects of constitutional (or judicial) review in tax law. Judicial review is instrumental to the enforcement of the principle of equality. However, there are relevant factors other than those related to judicial review. Even when judicial review of statute law is excluded, as is the case in the Netherlands, the courts may find a way to protect the principle of equality, although in a reserved way. Thus, the enforcement of the principle of equality may differ according to whether the source of the principle is a domestic constitutional provision or (solely) Article 14 of the Convention. Often, however, the judiciary leaves the legislature a wide margin of appreciation in tax matters. Furthermore, we have seen that different constitutional and ordinary courts operate in different societies and legal and political cultures, which accounts for the different results of the application of the principle of equality. The practice of constitutional review of tax laws in Germany and its absence in the United Kingdom might both be considered
Original languageEnglish
Title of host publication"Legal Protection against Discriminatory Tax Legislation"
EditorsJ.L.M. Gribnau
Place of PublicationThe Hague, London, Boston
PublisherKluwer Law International
Pages65-99
Number of pages35
ISBN (Print)9041199152
Publication statusPublished - 2003

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    De verhouding tussen wetgeving en rechtspleging

    van de Donk, W. B. H. J., Barendrecht, M., Gribnau, H., Jacobs, A., Koekkoek, A. K., Vranken, J. B. M., de Waard, B. W. N. & Witteveen, W. J.

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    Cite this

    Gribnau, J. L. M., & Saddiki, J. (2003). "Protection of European taxpayers by the principle of equality". In J. L. M. Gribnau (Ed.), "Legal Protection against Discriminatory Tax Legislation" (pp. 65-99). Kluwer Law International.