• 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

Problems in articulating the various levels of guarantee. Multi-level protection established in the Spanish Constitutional Court, the Court of Justice of the European Union and the Court of Human rights

There are different levels of protection of fundamental rights that impact the tax sphere and that justify constitutional intervention and, if so, what should be done with regard to the divergences in the criteria of interpretation planted by the CJEU and the ECtHR (both European truths)? And how should this situation be addressed by the domestic Spanish legal actor, including the Constitutional Court? These divergences must therefore be articulated through synergies, in the interests of the principle of favor libertatis pro personae.

–       Position of the Court of Justice of the European Union

From the point of view of fundamental rights, the Court of Justice of the European Union has been most affected from a taxation perspective by what is known in Spain as the right to effective judicial protection under Article 24 of the Spanish Constitution, in relation to the principle of legal certainty. However, this is not the only topic in this aspect that has sparked debate. The protection of taxpayer data and the immunity of the home from tax inspections has also incited discussion.

–       Position of the European Court of Human Rights

As far as the European Court of Human Rights is concerned, fundamental rights in tax matters have been protected in different ways. The equivalent of Article 24 of the Constitution, i.e. the right to an objective and fair trial in Article 6 of the Charter; Article 7, the principle of criminal legality; Article 9, indirectly, religious freedom, has also come into play in some tax collection procedures, calling into question its collision with the right to equality, because the obligation to pay tax does not apply to certain religious orders but to others.

Also the right to an effective remedy as an extension of effective judicial protection (Article 13 of the Convention); the right to equality (Article 14 of the Convention) and also Article 1 of Protocol No. 1, the right to property, which is inherent in the taxable estate of a person.

–       - Common jurisprudential direction and specialities

This approach defines two basic aspects or lines of jurisprudence in the guarantee of taxpayers' rights:

• The right to a fair trial within a reasonable time applies to judicial proceedings as well as to administrative proceedings. With regard to tax proceedings, the attitude of the parties, i.e. the tax administration and the sanctioned party, must be taken into account, as well as the complexity of the case.
• The European Court of Human Rights has established, mutatis mutandi, that the presumption of innocence is the same as the presumption of guilt for lack of evidence. In this sense, it is a more secure approach.

As far as the Court of Justice of the European Union is concerned, two lines of jurisprudence stand out: on the bases of Article 41 (the right to goo administration) and Article 47 (the right to good justice). The Court of Justice itself points out that the non-expiry or non-application of the statute of limitations cannot be used to suspend proceedings indefinitely, as this would be contrary to effective judicial protection. Thus, the ‘single shot’ doctrine was a paradigm of this situation in our country. Furthermore, aside from the principle of legal certainty, the principle of proportionality is paramount, such as the recent ruling relative to model 720 and the obligation of taxpayers to declare assets abroad, whose sanctions were declared disproportionate in violation of European Union law.

–       Divergences: the Satamedia Case

At this point, the following question arises: What happens when the fundamental rights are affected by both European courts? This is precisely what happened in the Satamedia case.

A Finish company was engaged in data collection of taxpayers and published them in a newspaper. The individuals affected filed a complaint with the Finnish Data Protection Authority, which ruled that the matter was not a matter covered by freedom of information. However, the case was also brought before the Court of Justice of the European Union, which ruled in 2008 that the right to freedom of expression prevailed, since the law of circulation and what is known as the ‘journalistic exception’ prevailed. In contrast, in 2017, the European Court of Human Rights ruled in the opposite direction, advocating for the right to personal data protection.

–       Possible solutions

In conclusion, in the face of situations of legal divergence, the principle of favor libertatis must take precedence. In the tax area, there is no issue since we are dealing with vertical relationships (tax administration vs. private individual). However, the issue arises when dealing with horizontal relationships among individuals. The solution is to be found in the Treaties themselves and in the judicial dialogue between two European courts. Thus, Article 53 of the European Agreement of Human Rights (the minimum standard) or Article 53 of the Charter of Fundamental Rights of the European Union must apply.

When the constitutional courts of the member states stand up to the European Courts, the so-called ‘counter-limits’, a dialogue arises between a country’s interest in maintaining taxation, but at the same time fundamental constitutional rights come into play, which also belong to the acquis communautaire of the Charter of Fundamental Rights. In this respect, the positive will of the judiciary to put guarantees and rights into practice is crucial.