Constitutional Taxation in the Netherlands

Abstract

Fundamental legal principles and rights may function as a check on legislative power protecting citizens against arbitrary interferences of tax legislation with their lives. We’ll start with a description of the fundamental protection of individual rights that exists under Dutch national law and the agencies that have primary responsibility for protecting those rights.

This principle of equality is an important judicial instrument to check seriously flawed tax legislation. The testing of tax law against this principle of equality can act as a case study to gain more insight into the topic of constitutional review. Acts of Parliament are tested against international treaties (Article 14 European Convention of Human Rights (ECHR), in conjunction with Article 1 of Protocol No. 1 ECHR (Article 1 P-1 ECHR), and Article 26 International Covenant on Civil and Political Rights (ICCPR). In terms of the method of judicial interpretation, we will show that the Dutch Supreme Court always demands an objective and reasonable justification for any inequality of treatment. This is in conformity with the method applied by the European Court of Human Rights (ECtHR).

As for testing tax law against the principle of equality, the Supreme Court acknowledges the wide margin of appreciation of the legislator. If the Court establishes a violation of the principle of equality, it acts very cautious. We acknowledge that the Dutch Supreme Court has initially made a valuable contribution to the constitutional system of checks and balances – underlining the significance of the principle of equality for fair tax legislation. However, in our opinion, the Supreme Court should pay less deference to the policy views of the tax legislator.

Next, we’ll discuss the testing of tax legislation against Article 1 P-1 ECHR (right to property). Both the Supreme Court and ECtHR observe a (very) wide margin of appreciation vis-à-vis the legislature if the so-called of the public interest test and the proportionality test are applied. This margin is only exceeded if an individual has to bear an individual and excessive burden. Here, again, the Supreme Court should be less deferential to the tax legislator.

With regard to the principle of certainty, no testing of statutory legislation is possible by the courts. Nonetheless, the legislator seems to take the principle of certainty quite seriously. With respect to retroactive tax legislation the State Secretary of Finance has committed himself to rules of conduct with regard to different situations where he deems retroactive tax legislation to be justified. The practice of this soft law instrument shows that the government is more willing to take its partners in law-making seriously than in the case of the principle of equality and the right to property.

Keywords: legal principles, principle of equality, right to property, principle of legal certainty, non-retroactivity, constitutional review, separation of powers, tax law, human rights, notional income tax