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
Request for a preliminary
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?
Article 47 – Right to
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.
Request for a preliminary
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.
Request for a preliminary
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
Article 8 – Right to
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
The Court declared the
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.
Article P1-1 – Right
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.
Article P1-1 – Right
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
The Court declared the
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.
Article P1-1 – Right
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-
The Court declared the
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
Article 6 – Right to
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)
7 June 2018 See under Article 8 See under Article 8
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)
20 June 2018 See under Article 7 See under Article 7
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