The EU and ECHR Rights of the Defence Principles in Matters of Taxation, Punitive Tax Surcharges and Prosecution of Tax Offences

Abstract

Where national tax legislation comes within the scope of EU law, it must be compatible with the principle of the rights of the defence, as developed by the Court of Justice of the European Union in its case law and found in the Charter of Fundamental Rights of the European Union. The rights of the defence proclaimed by the European Convention on Human Rights (ECHR) is also applicable in tax matters when a tax dispute involves a criminal charge. For the European taxpayer it may not be clear if and when the principle of the rights of the defence can be invoked or how the rights of the defence in EU law and the rights of the defence of the ECHR influence domestic tax proceedings. Broadly speaking, customs duties, harmonized indirect taxes and to some extent direct taxes fall under the EU rights of the defence, while the ECHR applies to tax matters in which punitive measures occur or criminal prosecution takes place.