- Dr Luis Jimena Quesada
Professor of Constitutional Law at the Universitat de València - Carlos Ortega Carballo
Legal Secretary of the European Court of Human Rights - Dr Cristóbal Borrero Moro
Professor of Financial and Tax Law of the Universitat de València - Joaquín Moreno Grau
Legal Secretary of the Court of Justice of the European Union - Dr Juan Martín Queralt
Professor of Financial and Tax Law at the Universitat de València
Current trends in the protection of taxpayers’ rights
- A situation in which the judicial system has become excessively sacralised and the legal process has been overlooked
This phenomena, consequent of social collectivity, of sacralising judicial decisions and separating the figure from the law, despite the latter being pronounced with respect to the former, has an explanation – the deterioration in the conceptual approach of the current parliaments and, in opposition to this, judicial decisions are very mediated. The current state of parliaments is incongruent with their intended purpose, resulting in a significant conceptual orphanhood that has led to a loss of public confidence. The shortcomings of parliament have been addressed by the courts, which have expanded their remit and are now well-placed to fulfil their role.
- A breach of the fundamental rights to honour and privacy
There is a breach of confidentiality that affects article 18 CE, particularly in cases where an individual is subject to an inspection procedure and subsequently (if applicable) accused of tax fraud. This indicates that, currently, the Supreme Court and the Constitutional Court in Spain have been failing to adequately protect fundamental rights since 2015. This is due to the reform of the Contentious-Administrative Law, or Law 40/2015. In this area, the work of the judges of the Third Chamber of the Supreme Court was instrumental in highlighting the differences between their approach and that of parliament.
While the 2015 reform resulted in an enhanced Contentious-Administrative Law, the introduction of an ‘objective appeal interest’ criterion has become a key factor in determining access to the process. This is a legal concept with both advantages and disadvantages. However, this term, with such a condition, runs the risk that citizens will be unable to access cassation, as cases that could genuinely be considered will be rejected due to the ambiguity of the concept.
The situation in the Constitutional Court with regard to fundamental rights is more serious because the inadmissibility in the field of ‘amparo’ appeals has resulted in a situation of legal uncertainty and confusion, creating unease and discouragement among jurists. It is particularly relevant to consider the events of 2007, when the LOTC was amended and the term ‘special constitutional transcendence’ was introduced. This was similar to what had previously occurred in the contentious-administrative jurisdiction. An illustration of this can be found in STC 45/22 of 23 March. Junqueras and Romeva filed an appeal on the grounds that, having initiated a preliminary ruling question with the CJEU, they were unable to proceed with the ongoing procedure and, consequently, they sought to halt the proceedings. The Constitutional Court rejected the appeal without providing a detailed rationale.
In conclusion, it is evident that the effecting protection of article 13 of the 1950 Convention is lacking in Spanish law, despite its presence in our legal system. This is due to a lack of practical application of the article. It should be noted that both of the aforementioned reforms introduced two indeterminate legal concepts which currently give rise to the need to revise the domestic legal system. In particular, the appeal for protection of articles 53 and 161 of the Spanish Constitution is of significant urgency. One possible solution would be to create new chambers dedicated exclusively to constitutional protection, thereby reducing the workload of the Constitutional Court. Another option would be to incorporate new chambers into the contentious-administrative jurisdiction. Both options would ensure compliance with the effectiveness principle set out in the 1950 European Convention.
