Drawing lessons from the protection of taxpayers’ rights in Europe

Author: Eric Ntini Kasoko
PhD candidate, University of Liege (Belgium)

“You can have a Lord, you can have a King, but the man to fear is the tax collector”- Sumerian proverb.

Today, fearing the tax man does not seem to hold true when it comes to the protection of taxpayers’ rights in most European countries. Indeed, for several decades now, taxpayers’ rights in Europe have been benefiting from internationalisation of human rights process. Under the impulse of case law from the European Court on Human Rights (ECHR) and the European Court of Justice (ECJ), human rights have become a fundamental part of taxation. While Africa is running the marathon of attracting and boosting private investments, it may be vital to stimulate the interaction of these two areas of law as a means to strengthen the rule of law on the continent.

In Africa, tax is primarily regarded as a civic duty. Article 29 (6) of the African Charter of Human and Peoples’ Rights (hereinafter referred to as “the Charter”) states that “the individual shall also have the duty (…) to pay taxes imposed by law in the interest of the society”. It follows in particular that the state has the right to levy taxes on its citizens, whether individual or corporate. In contrast, citizens are entitled to enjoy property rights in respect of Article 14 of the Charter or any other pertinent instrument relating to international human rights law. Since the state and its citizens have opposing interests, a balance is obviously required between the individual’s right to property and the state’s right of establishing taxes. In others words, in case of a dispute regarding taxation, the judge should be able to censure any excessively high tax burden on citizens.

It can be acknowledged that there is no ample case law by a long shot in this field. However, there is no doubt that international human rights law is applicable in any sector governed by national law, including taxation law. In 2009, the Court of Justice of the regional body Economic Community of West African States addressed one of the very few cases in which the power to tax on the one hand and individual freedom on the other hand collided. This was the case The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector v  Côte d’Ivoire relating to the high tax rates applied in both the coffee and cocoa sectors. The plaintiffs complained, inter alia, of a violation of the fundamental principle of equality of all citizens before the law, in that coffee and cocoa producers were taxed much more heavily than those of other agricultural products.

In response to the defendant’s argument that the Court had no jurisdiction to adjudicate upon requests relating to laws or administrative decisions on taxation, the judges asserted that international judicial bodies did have the right to examine the legitimacy of national taxation in accordance with international human rights standards. In other terms, in taking this stance, the Court made clear that national tax sovereignty was not absolute. Fiscal authorities are to take into account human rights issues when levying and collecting taxes. As a result, taxpayers should enjoy, like any other citizens, legal and judicial protection of their fundamental rights and freedoms.

As stated above, the body of case law from both the ECJ and ECHR is on a constant increase in this field. Through an autonomous and evolving interpretation of international instruments, European judges have provided taxpayers’ rights protection from an international dimension. Thus, a number of international fundamental rights and principles have been found to be applicable to tax law. These include the right to property, the right to privacy, the principle of equality, and internationally recognised standards for fair trial. Drawing on the principles of direct applicability and primacy of supranational instruments over domestic laws, taxpayers across Europe can rely heavily upon the development of European case law to challenge tax legislation and administrative decisions.

While it is true that the rights of a taxpayer are constit“You can have a Lord, you can have a King, bututionally protected in some African legal systems, it can be said that the effectiveness of such protection is not always guaranteed, often under the pressure of economic necessities. It seems, therefore, more appropriate to allow taxpayers of Africa to benefit from the coexistence of both constitutional and international protection of their fundamental rights. This is all the more important that African countries are striving to improve continental and sub-regional economic integration, notably through the improvement of the business environment and legal framework. Moreover, does the taxpayer not deserve to fully enjoy their right like any other citizen? It is my fondest hope that such case law will soon develop.

About the Author:
Eric Ntini Kasoko holds a Bachelor of Laws (LLB) from the Congo Protestant University (Democratic Republic of Congo), an advanced Master’s in Human Rights from the Catholic University of Louvain (Belgium), and a Certificate in Tax Management from the Solvay Brussels School of Economics and Management (Belgium). Kasoko is currently a PhD candidate at the University of Liege (Belgium). His research interests are comparative taxation and international human rights law.