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Pris: 1909 SEK exkl. moms  |  This book analyses whether DAC6 as a piece of secondary legislation is compliant with the requirements of EU primary law concerning fundamental rights and guarantees.
Why this book?
Since its adoption in 2018, an intense debate has arisen among academics at the international level on whether Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements (DAC6) is sufficiently protective from a taxpayers’ rights point of view. That is, opinions differ on whether the measure respects the most basic tenets of EU law: the fundamental rights and general principles of the European Union. Under the domain of EU law, measures that do not respect the general principles or fundamental rights are not considered proportional to the objective they are intended to achieve. The same holds true in relation to measures affecting direct taxation. Further, in this regard, not only Member States but also EU legislators must respect all treaty provisions. Against this background, Recital 18 to DAC6 points out that “this Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union”. However, is this statement true in practice? This analysis necessarily involves assessing whether DAC6 as a piece of secondary legislation respects the requirements of EU primary law. This is therefore the research question of this book: is DAC6 compliant with the requirements of EU primary law concerning fundamental rights and guarantees? The analysis focuses on whether the Directive respects certain specific rights and guarantees: inter alia, the principle of legal certainty, the rights of defence (in particular, professional secrecy and the right not to incriminate oneself), the right to privacy, the principles of proportionality and legality in their punitive demand, and the principle of culpability.
List of Contributors/About the Author
Marina Castro Bosque holds a Doctor of Law and specializes in international and European Union tax law. She is currently working as a teaching and research associate at the Public University of Navarre in Spain.
Table of Contents
Acknowledgments xi
Preface xiii
Abbreviations xvii
Chapter 1: Introduction: Analysis of DAC6 in Light of EU
Fundamental Rights and Guarantees 1
1.1. State of the art: Why an EU mandatory
disclosure regime? 1
1.2. The research question 5
1.3. Methodology 11
1.4. Structure 13
Chapter 2: Mandatory Disclosure Rules at the EU Level 17
2.1. Introduction 17
2.2. The importance of mandatory disclosure rules:
Historical background 18
2.3. OECD recommendations: BEPS Action 12 as the
international standard 24
2.3.1. Objectives, basic principles and elements of
mandatory disclosure rules 29
2.3.2. Overview of mandatory disclosure rules 32
2.4. DAC6: The EU mandatory disclosure regime 40
2.4.1. DAC6 as an amendment of DAC1 42
2.4.2. DAC6 in the spotlight: An overview of EU
Mandatory Disclosure Rules 47
2.4.2.1. Objective element 49
2.4.2.2. Subjective element 63
2.4.2.3. Time element 67
2.4.2.4. Consequences of complying or breaching the
disclosure obligation 69
2.4.2.5. Exchange of information 69
2.4.2.6. Connecting points: Where to report? 70
2.4.3. DAC6: One regime, many concerns 71
Chapter 3: The Principle of Legal Certainty 75
3.1. Introduction 75
3.2. Preliminary remarks: The EU legal system 77
3.2.1. The general principles of EU law 80
3.2.2. The system of fundamental rights protection in the
European Union 86
3.2.2.1. The relationship between the instruments for the
protection of fundamental rights in the European
Union 90
3.2.2.2. The role of the fundamental rights in the European
Union 96
3.2.2.3. The limits to fundamental rights in the European
Union 101
3.3. The principle of legal certainty at the EU Level 104
3.3.1. The protection of legal certainty within the
framework of EU law 110
3.3.2. The requirement of non-retroactivity as an aspect
of legal certainty 127
3.3.2.1. Retroactivity versus retrospectivity: A matter
of principles 131
3.3.2.2. The protection of non-retroactivity within the
framework of EU law 135
3.4. Assessment of the principle of legal certainty under
the scope of DAC6 149
3.4.1. The lack of certainty regarding the objective of DAC6 150
3.4.1.1. The indeterminacy of the objective of DAC6 151
3.4.1.2. Aggressive tax planning as a disruption of the
traditional categories of tax law 157
3.4.1.3. Tax abuse in the EU legal order 164
3.4.1.3.1. The development of the anti-abuse doctrine in EU law 166
3.4.1.3.2. The elements comprising the concept of abuse 177
3.4.1.4. Towards a delimitation of “aggressive tax planning” 188
3.4.1.4.1. The concept of “aggressive tax planning” in OECD
documentation 188
3.4.1.4.2. The concept of “aggressive tax planning” launched
by the European Union 194
3.4.1.4.3. The approach to aggressive tax planning taken
by scholars 203
3.4.1.4.4. Final reflections on aggressive tax planning 209
3.4.2. The uncertainty arising from the hallmarks:
A comparative analysis 217
3.4.2.1. The main benefit test 218
3.4.2.2. Categories of hallmarks 223
3.4.3. The objective element in light of the principle of
legal certainty 254
3.4.3.1. The detriment to legitimate expectations and the
effectiveness of DAC6 caused by a lack of legal
certainty 256
3.4.3.1.1. The disparities arising from the use of broad and
vague terms 259
3.4.3.1.2. The disparities arising from the use of undetermined
legal terms and the lack of political consensus thereof 262
3.4.3.1.3. Overall assessment of the lack of legal certainty in
the case of differing implementations 272
3.4.3.2. The potential violation of fundamental rights due to
a lack of legal certainty 276
3.4.3.2.1. The relevance of the main benefit test when assessing
tax abuse arrangements 277
3.4.3.2.2. Analysis of the hallmarks in light of the European
Union’s concept of abuse 282
3.4.3.2.3. Assessment of the lack of legal certainty in reportable
tax abuse arrangements 287
3.4.3.3. The fight against aggressive tax planning as the
objective of DAC6 289
3.4.4. The temporal element in light of the prohibition of
retroactivity 303
3.4.4.1. The predictability of the retroactive/retrospective
regulation: When there are no expectations at stake 309
3.4.4.2. The exploitation of loopholes as a reason of general
interest for retroactivity/retrospectivity: When
expectations are not legitimate 318
Chapter 4: The Rights of Defence 327
4.1. Introduction 327
4.2. The right/duty of professional secrecy 328
4.2.1. The right/duty of professional secrecy in the
European Union 330
4.2.1.1. Professional secrecy in the European Union:
Definition and relevance 331
4.2.1.2. The approach of the ECJ and the ECtHR to
professional secrecy 338
4.2.2. The judgment of the ECJ of 8 December 2022,
Orde van Vlaamse Balies (Case C-694/20):
The rights of defence 345
4.2.3. The potential interference of DAC6 with professional
secrecy 349
4.3. The right not to incriminate oneself 363
4.3.1. The right to a fair trial and not to incriminate oneself
in the European Union 365
4.3.1.1. The right not to incriminate oneself as a demand
of the right to a fair trial 365
4.3.1.2. Protection of the right not to incriminate oneself
by the ECJ and the ECtHR 373
4.3.2. The possibility of the taxpayer invoking the right
not to incriminate oneself under the DAC6 regime 381
Chapter 5: The Right to Privacy 397
5.1. Introduction 397
5.2. The right to privacy in tax matters 398
5.2.1. The protection of the right to privacy in the European
Union 403
5.2.2. The judgment of the ECJ of 8 December 2022, Orde
van Vlaamse Balies: The right to privacy 416
5.3. The possibility to invoke the right to privacy under
the DAC6 regime 427
Chapter 6: The Principle of Proportionality in Punitive
Matters 433
6.1. Introduction 433
6.2. Preliminary remarks: The EU limits to Member
States’ sanctioning powers 435
6.3. The penalty regime under DAC6: Comparative
analysis and limits 447
6.4. The limits in the regulation of penalties:
The principle of proportionality 459
6.4.1. The principle of proportionality in the EU legal
order: The case of sanctions 462
6.4.2. The regulatory limits to the Member States’
penalties under DAC6 arising from the principle of
proportionality 477
Chapter 7: The Principle of Legality in Punitive Matters 483
7.1. Introduction 483
7.2. The principle of legality in the EU legal order 485
7.3. The consequences of complying with the disclosure
obligation under DAC6: nullum crimen, nulla
poena sine lege 495
7.3.1. Consequences in case of “aggressive tax planning”
arrangements 496
7.3.2. Consequences in the case of “tax abuse/avoidance”
arrangements 501
7.3.2.1. The legal response from the European Union’s
perspective 502
7.3.2.2. The legal response from the Member States’
perspective 515
Chapter 8: The Principle of Culpability 535
8.1. Introduction 535
8.2. The principle of culpability in the EU legal order 536
8.2.1. Mens rea: The principle of culpability 536
8.2.2. Protection of the principle of culpability in the
European Union 547
8.3. The limits in the imposition of penalties under the
DAC6: The case of error of fact and error of law 558
8.4. The mitigating effects of compliance with the MDR
on tax penalties 572
8.4.1. Confession as a circumstance mitigating criminal
liability 573
8.4.2. Confession as a mitigating factor applicable to
the punitive tax sphere 579
8.4.3. The application of the mitigating circumstance of
confession to the sphere of DAC6 581
Chapter 9: Conclusions 585
9.1. Introduction 585
9.2. The importance of mandatory disclosure rules and
DAC6 as EU mandatory disclosure rules:
What is at stake? 585
9.3. Fundamental rights and guarantees in the EU
legal order 586
9.4. The principle of legal certainty 587
9.5. The rights of defence 590
9.6. The right to privacy 592
9.7. The principle of proportionality 592
9.8. The principle of legality 593
9.9. The principle of culpability 594
Bibliography 597 | | |
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