Equality, Legal Certainty and Tax Legislation in the Netherlands - Fundamental Legal Principles as Checks on Legislative Power: A Case Study

23 Pages Posted: 5 Apr 2013 Last revised: 5 Jul 2014

See all articles by Hans Gribnau

Hans Gribnau

Tilburg Law School; Leiden University

Date Written: March 27, 2013

Abstract

Fundamental legal principles may function as a check on legislative power protecting citizens against arbitrary interferences with their liberty. This contribution deals with the principle of equality and the principle of certainty. First, the testing of legislation against the principle of equality is presented as a case study of constitutional review. In the Netherlands, the constitutional dialogue between the legislator and the Dutch Supreme Court revolving around the principle of equality demonstrates a fair amount of subtle details. As a result, constitutional review can hardly be called an all or nothing affair.

Secondly, retroactive tax legislation is dealt with. The legislator does seem to take the principle of legal certainty, another fundamental legal principle, quite seriously, although no testing of statutory legislation is possible by the courts. With regard to retroactive tax legislation the Government has committed itself in a memorandum, requested by Parliament, to adhere to rules of conduct with regard to different situations where it deems retroactive tax legislation to be justified. Thus, a soft law instrument facilitates a dialogue between different partners in the business of law-making.

Keywords: legal principles, principle of equality, principle of legal certainty, non-retroactivity, constitutional review, soft law, constitutional dialogue, separation of powers, tax law

Suggested Citation

Gribnau, Hans, Equality, Legal Certainty and Tax Legislation in the Netherlands - Fundamental Legal Principles as Checks on Legislative Power: A Case Study (March 27, 2013). Utrecht Law Review, Vol. 9, No. 2, p. 52-74, March 2013. Available at SSRN: https://ssrn.com/abstract=2244793

Hans Gribnau (Contact Author)

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Leiden University ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Register to save articles to
your library

Register

Paper statistics

Downloads
872
Abstract Views
1,708
rank
27,280
PlumX Metrics