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Confrontation RE: Legal autopoiesis theory in operation—a study of the ECJ case of C-446/03
Marks & Spencer v. David Halsey
This paper has been prepared in the hope of giving new insights into the case of C-446/03 Marks & Spencer. The author tries to explore the process of communication in the light of the legal autopoiesis theory, the final result of which is the judgment. Reading it, one can find plain arguments both for the effective protection of EC freedoms, including the freedom of establishment, one the one hand, and for stopping regulatory and tax competition, and safeguarding the national interests of Member States, on the other one. The methodology of legal autopoiesis may be useful in better understanding of the message the judgment has negotiated.
In this paper, the administrative law aspect of the compatibility of the Hungarian local trade tax will be discussed, based on the presumption that even if it has been declared that the Hungarian local trade tax cannot be considered inconsistent with the harmonised value added tax, Hungarian taxpayers may be hurt in their rights if they cannot get easy access to the clarification of the legal issue whether a national tax is consistent with Community law.
Where the institutions of the retention at source of taxes and the prevention of foreign financial intermediaries from assuming in the source country the liability to file tax information and arrange for the payment of tax in fair conditions comparable to their domestic counterparts are to be assessed in the light of the relevant Community law as communicated by the ECJ, it is crucial while concluding whether national legal practices of withholding taxation are consistent with Community law to apply the proportionality principle in specific cases. Where the application of the proportionality principle dictates us in a specific case respect of the effectiveness principle in enforcing rights both on the side of the tax authorities and taxpayers, an avenue may open up for progressively removing barriers from the clearing and settlement of securities transactions across the border. This paper is to discuss how the EC principles of effectiveness and proportionality are to be enforced by the European Court of Justice with regard to removing barriers from the free movement of services and capital upon withholding taxation.
The so-called bank levy—a tax levied on bank leverage—has been proliferated to date. They are the product of reacting to the global financial crisis that started in the autumn of 2008. Therefore, they can only be understood in the context of the crisis. Since one or two decades, the financial industry has produced much innovation that is to be reflected in taxation. The application of bank levy is thus the result of the reforms initiated in the sphere of financial regulation rather than tax law. Financial and tax laws are different from each other in many respects, however, as it will be discussed below where the constitutional background for the introduction of financial taxes will be explored.
The so-called bank levy—a tax levied on bank leverage—has been proliferated to date. They are the product of reacting to the global financial crisis that started in the autumn of 2008. Therefore, they can only be understood in the context of the crisis. Since one or two decades, the financial industry has produced much innovation that is to be reflected in taxation. The application of bank levy is thus the result of the reforms initiated in the sphere of financial regulation rather than tax law. Financial and tax laws are different from each other in many respects, however, as it will be discussed below where the constitutional background for the introduction of financial taxes will be explored. In this paper, bank levies; one of the newly introduced financial taxes—are in the centre of interest. In this respect, the paper concerns detailed policy matters and justifi cation issues.
Taxation and tax law cannot exist without biases because tax law can be seen per definition as a set of biases. Even if the state pursuing its fiscal policy cannot be neutral, one can expect to enforce the principle of equal treatment before the law. Besides, state intervention need be in proportion to the objectives of the policy of redistribution or economic stabilization. Also, fiscal policy need rely on a system of tax administration that operates in accordance with the principles of openness, good governance and legal certainty. It is ideal if the legal regulation of the procedure of tax administration is fully fledged. The legal regulation of the tax liability need be comprehensive and cover all the processes of gathering tax information, identifying the tax liability and collection of taxes. Moreover, tax administration and administrative law are inadvertently in a need of being completed by private law. Where tax authorities are not explicitly authorised by statutory law to act, they must rely on the principles that are in accordance with the constitutional order. Notably, in Hungary, there is no statutory law that would preclude the universal effect of the Civil Code, covering all the financial relations whether to be made between private persons or between private persons and the representative of the public. Finally, for the purposes of approximating an ideal tax system, the possibility of horizontal coordination must not be left out of consideration. In this context, legal and tax planning and the choice of legal and tax regimes by parties have come to the forefront. Bargaining (e.g., advance ruling) has not been strange from tax law either.
This paper deals with legal unorthodoxy. The main idea is to study the so-called unorthodox taxes Hungary has adopted in recent years. The study of unorthodox taxes will be preceded by a more general discussion of how law is made under unorthodoxy, and what are the special features of unorthodox legal policy. Unorthodoxy challenges equality before the law and is critical towards mass democracies. It also raises doubts on the operability of the rule of law, relying on personal skills, or loyalty, rather than on impersonal mechanisms arising from checks and balances as developed by the division of political power. Besides, for lack of legal suppositions, legislation suffers from casuistry and regulatory capture.
To date, a series of non-traditional schemes have proliferated in the area of tax law, challenging the widely accepted principles of tax legislation. Lump-sum or presumptive taxes, redemption fees or tax amnesty, corrective taxes (bank levies), or confiscatory taxes (e.g., banker bonuses) can hardly be reconciled with the hard core of tax legislation that is established on the principles of equality and legal certainty. The present paper discusses these unorthodox types of public charges.
It is of particular importance to be competitive for a country like Hungary, going to join the European Union. It has been important for the country to modernise its tax system, in line with completing the transition into a modern market economy. It is usually less interest in the examination of the tax system as to whether it is competitive, and if so, whether it is streamlined enough to comply with the international comity that dictates us that a country - while attractive for investors - must not avail itself of tax practices that can be seen harmful. Hungary, associated with the EC, is also bound to rules equivalent to the EC rules on state aid and, as a WTO member, to WTO rules on subsidies. This paper takes a hard look at the Hungarian fiscal system from the perspective of illegal state aid and harmful tax competition.
The study of fiscal non-compliance - in particular, that of tax evasion - is quite extensive in the literature of economics. Lawyers do not show much interest in fiscal anomalies. An exception for this is perhaps tax avoidance which is usually interpreted as the problem of the form and substance. Apart from the modest interest in irregularities in fiscal law, the legal theories of obedience, or disobedience, and coherence have grown significantly, thanks to the precept of William Ross on prima facie duties or the concept introduced later by John Rawls on the reflective equilibrium. This paper is an attempt to apply the categories explored by legal philosophy to the developments of fiscal law.
