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Legal Remedies in European Tax Law - Review

Legal Remedies in European Tax Law, by Pascale Pistone

Legal Remedies in European Tax Law Book & Online Book Cover

Review author: Christiana HJI Panayi
Reprinted from British Tax Review, Issue 3, 2011
Sweet & Maxwell, 100 Avenue Road, Swiss Cottage, London NW3 3PF. (Law Publishers)

 

 

This book contains a comprehensive and topical examination of an important and relatively unexplored area of law. It was compiled following a conference by the GREIT (Group for Research in European and International Taxation) held in Cetara-Salerno in 2008. The book contains an updated and revised version of the 26 reports presented at the conference, accompanied by commentaries from experts. The various chapters of the book are by Peter J. Wattel, Philip Baker, Michael Lang, Pierpaolo Rossi-Maccanico, and Robert Attard, amongst others. Looking at the number of topics listed in the table of contents, one may be excused from thinking that the book seeks to undertake an over-ambitious task. Nevertheless, to an extent, it manages to meet the challenge. The book contains an updated and revised version of the reports presented at the aforementioned conference, as well as brief commentaries by leading tax scholars.
 
It is divided into eight parts and comprises 35 chapters. As explained in the General Report, the eight parts of the book: “correspond to the specific issues concerning legal remedies in European tax law that were selected because of their actual or potential relevance to theoretical and/or practical application.”1
 
Part One is devoted to reconciliatory interpretation and the direct effect of the Court of Justice (CJ) decisions. The importance of reconciliatory interpretation for the development of a homogenous body of European tax law is raised. This is also linked with the acte clair doctrine and its empowering effect on national courts.
 
Part Two focuses on the legal protection of taxpayers in the framework of the procedure for
preliminary rulings. The reports concentrate on the obstacles faced by taxpayers at various levels; namely when the issue first arises in national courts, when it is referred to the CJ and whether the Court’s decision is implemented back in the national system. Here, there are some overlaps with the previous two books published by GREIT and some themes are revisited in the context of legal remedies.2
 
Part Three deals with legal remedies and infringement procedures. The importance of the
Commission’s infringement actions for further integration is considered and a number of examples given. The limitations of this approach and its relationship with the preliminary rulings procedure are also analysed. Chapter 11 contains a very interesting suggestion for the establishment of the office of a European Tax Ombudsman. There is a brief comparative analysis of the implementation of the concept of the Ombudsman in various jurisdictions. The usefulness of an Ombudsman in the field of European tax law is considered.
 
Part Four examines taxpayer protection in the context of the State aids prohibition. Some of
the important case law is analysed and the crucial criterion of selectivity in business tax matters is reassessed. The powers of national courts and their ability to protect affected individuals are also addressed. Furthermore, chapter 15 gives an overview of the issue of locus standi of third parties in non-tax related State aid cases and how this affects competitors or beneficiaries. Chapter 17 picks up on some of these themes and considers the legal protection of recipients of fiscal State aids. State aid in the field of direct taxation has become increasingly important in the last few years and more detailed contributions in this part of the book would have been welcome. Arguably, this can be the subject of another book altogether.
 
The central part of the book is to be found in Parts Five to Eight which consider substantive
and procedural issues pertaining to legal remedies. Part Five focuses on liability for damages. There is a general overview of the principles that govern legal remedies in European tax law and a good discussion on the conditions of equivalence and effectiveness in this context. Actions for compensation, consequential damages, restitutionary remedies, periods of limitation and national tax penalties are some of the themes examined in this Part. These are very topical issues given the number of European tax cases going through the English courts now.
 
In Part Six, the emphasis is on procedural hindrances and, mainly, limitation periods. Part
Seven examines forum shopping as a result of differences in the rules relating to appeals under the various statutes of limitation. The differences between actions for damages before civil courts and actions for appealing a tax audit in tax courts are also considered.
Part Eight provides an overview of the legal remedies that taxpayers may use for the purpose of obtaining an effective protection in the presence of non-appealable acts or decisions infringing European law. This Part contains a number of chapters focusing on the application of the relevant principles of the European Convention on Human Rights to tax matters and their inter-relationship with European law. With the ratification of the Lisbon Treaty, which incorporates a Charter of Fundamental Rights, the importance of the jurisprudence of the European Court of Human Rights is likely to be elevated.
 
Overall, this book provides a good analysis of some of the important issues relating to taxpayer protection in the European Union. One of its main strengths is that it blends a wealth of knowledge from civil and common law scholars, offering useful insights to readers from both systems. It is obvious, however, that due to the sheer volume of topics to be covered, the analysis is at times not as detailed as one would have hoped for. This may also be attributable to the fact that the law on the majority of issues addressed is not yet settled or is simply at an embryonic stage. The book identifies the issues that need further examination and provides an excellent benchmark for further research to be undertaken. Perhaps in a few years there could be a revised edition in which developments are traced and predictions critically assessed.
 
Christiana HJI Panayi*
* Senior Lecturer in Tax Law, Queen Mary University of London, Centre for Commercial Law Studies and researcher at the Institute for Fiscal Studies.
Book Reviews 355
[2011] BTR, No.3 © 2011 Thomson Reuters (Professional) UK Limited and Contributors

1 P. Pistone (ed.), Legal Remedies in European Tax Law (Amsterdam: IBFD, 2010), 7.

2 A.P. Dourado and R. Borges (eds), The Acte Clair in EC Direct Tax Law (IBFD: Amsterdam, 2008) and C. Brokelind (ed.), Towards a Homogeneous EC Direct Tax Law (Amsterdam: IBFD, 2008). 354 [2011] BTR, No.3 © 2011 Thomson Reuters (Professional) UK Limited and Contributors