Taxation and the European Convention for the Protection of Human Rights: Substantive Issues

Abstract

When the European Convention on Human Rights (ECHR) was agreed, clearly it did not apply to substantive tax issues. The author aims to show that there is nothing to suggest that the inclusion of the protection of property rights in paragraph 1 of the First Protocol to the Convention represented a change in this respect. In spite of this, there is in the literature considerable enthusiasm for the notion that the Convention is also important as regards this issue. The author examines the jurisprudence of the European Court of Human Rights (ECtHR) in cases which involve substantive tax issues, and argues that the Court, with the help of the concept of an extraordinary margin of appreciation, has indeed shown great reluctance towards getting involved in these issues. This approach is applauded, and it is argued that the old notion that taxation is a fundamental part of national sovereignty, is still valid, and that it justifies the restraint shown by the ECtHR. The question of legal security for taxpayers – to the extent that this principle is also relevant to substantive issues – must be balanced against the principle of effectivity. Thus, the solutions to legal security issues in this sphere of the law may well differ from the solutions to parallel questions in other legal contexts.