Article 17 ECFR on the right to property and VAT
(2019) CJEU- Recent developments in value added tax 2018 — ISBN: [9783709410356], p. 3-14, published
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- Abstract
- Although the EU harmonization process in the area of Value-added tax started several decades ago, issues relating to its compatibility with fundamental rights have only arisen relatively recently. As the case law of the European Court of Human Rights shows, human rights may have an impact on the application of VAT domestic rules in many areas, such as administrative penalties and sanctions, criminal proceedings, procurement of evidence, procedural guarantees, VAT fraud and abuse, VAT exemptions, VAT deductions or VAT increases. Despite the fact that the terms “tax”, “taxation” or any other concept related to it do not appear in any provision of the European Convention on Human Rights, except in Art. 1 of Protocol No.1 , many ECHR judgments have been rendered on various issues relating to the application of tax laws: the principle of legality of taxation and legitimate purpose , the principle of clarity of standards , the principle of unreasonable non-retroactivity of substantive tax rules , the principle of proportionality of the tax , the principle of non-discrimination , the right to silence and non-self-incrimination ; and the ne bis in idem principle under Art. 4 of Protocol No. 7. Other cases concern the procedural guarantees relating to due process of law and fair trial (reasonable duration, impartiality of the judging body, guarantee regarding the evaluation of the evidence, etc.). In this context, this chapter will address the question whether VAT taxable persons can rely on the right to property (Art. 17 of the EU Charter in conjunction with Art. 52 of the Charter) in order to safeguard their right to input VAT deduction, particularly in situations where tax authorities suspect a fraud or an abuse. The analysis will concentrate on two cases: the Bulves case (ECHR) and the Italmoda case (CJEU). Finally, we will comment on the legal nature of the right to deduct from a fundamental rights perspective.
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Traversa, E., Lotito Fedele, S., & et al. (2019). Article 17 ECFR on the right to property and VAT. In Lang et alii (ed.) (ed.), CJEU- Recent developments in value added tax 2018 (p. p. 3-14). Linde. https://hdl.handle.net/2078.5/32074