Analysis of the DAC6 in Light of EU Fundamental Rights and Guarantees / Marina Castro Bosque.

Format:

Book

Author/Creator:

Castro Bosque, Marina, author.

Series:

Doctoral series ; Volume 69.

IBFD Doctoral Series ; Volume 69

Language:

English

Subjects (All):

Disclosure of information--Law and legislation.

Disclosure of information.

Taxation--Law and legislation--European Union countries.

Taxation.

Physical Description:

1 online resource (683 pages)

Edition:

First edition.

Place of Publication:

Amsterdam, The Netherlands : IBFD, [2024]

Summary:

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.

Contents:

Cover

IBFD Doctoral Series

Title

Copyright

Acknowledgments

Preface

Abbreviations

Chapter 1: Introduction: Analysis of DAC6 in Light of EU Fundamental Rights and Guarantees

1.1. State of the art: Why an EU mandatory disclosure regime?

1.2. The research question

1.3. Methodology

1.4. Structure

Chapter 2: Mandatory Disclosure Rules at the EU Level

2.1. Introduction

2.2. The importance of mandatory disclosure rules: Historical background

2.3. OECD recommendations: BEPS Action 12 as the international standard

2.3.1. Objectives, basic principles and elements of mandatory disclosure rules

2.3.2. Overview of mandatory disclosure rules

2.4. DAC6: The EU mandatory disclosure regime

2.4.1. DAC6 as an amendment of DAC1

2.4.2. DAC6 in the spotlight: An overview of EU Mandatory Disclosure Rules

2.4.2.1. Objective element

2.4.2.2. Subjective element

2.4.2.3. Time element

2.4.2.4. Consequences of complying or breaching the disclosure obligation

2.4.2.5. Exchange of information

2.4.2.6. Connecting points: Where to report?

2.4.3. DAC6: One regime, many concerns

Chapter 3: The Principle of Legal Certainty

3.1. Introduction

3.2. Preliminary remarks: The EU legal system

3.2.1. The general principles of EU law

3.2.2. The system of fundamental rights protection in the European Union

3.2.2.1. The relationship between the instruments for the protection of fundamental rights in the European Union

3.2.2.2. The role of the fundamental rights in the European Union

3.2.2.3. The limits to fundamental rights in the European Union

3.3. The principle of legal certainty at the EU Level

3.3.1. The protection of legal certainty with in the framework of EU law

3.3.2. The requirement of non-retroactivity as an aspect of legal certainty.

3.3.2.1. Retroactivity versus retrospectivity: A matter of principles

3.3.2.2. The protection of non-retroactivity within the framework of EU law

3.4. Assessment of the principle of legal certainty under the scope of DAC6

3.4.1. The lack of certainty regarding the objective of DAC6

3.4.1.1. The indeterminacy of the objective of DAC6

3.4.1.2. Aggressive tax planning as a disruption of the traditional categories of tax law

3.4.1.3. Tax abuse in the EU legal order

3.4.1.3.1. The development of the anti-abuse doctrine in EU law

3.4.1.3.2. The elements comprising the concept of abuse

3.4.1.4. Towards a delimitation of "aggressive tax planning"

3.4.1.4.1. The concept of "aggressive tax planning" in OECD documentation

3.4.1.4.2. The concept of "aggressive tax planning" launched by the European Union

3.4.1.4.3. The approach to aggressive tax planning taken by scholars

3.4.1.4.4. Final reflections on aggressive tax planning

3.4.2. The uncertainty arising from the hallmarks: A comparative analysis

3.4.2.1. The main benefit test

3.4.2.2. Categories of hallmarks

3.4.3. The objective element in light of the principle of legal certainty

3.4.3.1. The detriment to legitimate expectations and the effectiveness of DAC6 caused by a lack of legal certainty

3.4.3.1.1. The disparities arising from the use of broad and vague terms

3.4.3.1.2. The disparities arising from the use of undetermined legal terms and the lack of political consensus thereof

3.4.3.1.3. Overall assessment of the lack of legal certainty in the case of differing implementations

3.4.3.2. The potential violation of fundamental rights due to a lack of legal certainty

3.4.3.2.1. The relevance of the main benefit test when assessing tax abuse arrangements.

3.4.3.2.2. Analysis of the hallmarks in light of the European Union's concept of abuse

3.4.3.2.3. Assessment of the lack of legal certainty in reportable tax abuse arrangements

3.4.3.3. The fight against aggressive tax planning as the objective of DAC6

3.4.4. The temporal element in light of the prohibition of retroactivity

3.4.4.1. The predictability of the retroactive/retrospective regulation: When there are no expectations at stake

3.4.4.2. The exploitation of loopholes as a reason of generalinterest for retroactivity/retrospectivity: When expectations are not legitimate

Chapter 4: The Rights of Defence

4.1. Introduction

4.2. The right/duty of professional secrecy

4.2.1. The right/duty of professional secrecy in the European Union

4.2.1.1. Professional secrecy in the European Union: Definition and relevance

4.2.1.2. The approach of the ECJ and the ECtHR to professional secrecy

4.2.2. The judgment of the ECJ of 8 December 2022, Orde van Vlaamse Balies (Case C-694/20): The rights of defence

4.2.3. The potential interference of DAC6 with professional secrecy

4.3. The right not to incriminate oneself

4.3.1. The right to a fair trial and not to incriminate oneself in the European Union

4.3.1.1. The right not to incriminate oneself as a demand of the right to a fair trial

4.3.1.2. Protection of the right not to incriminate oneself by the ECJ and the ECtHR

4.3.2. The possibility of the taxpayer invoking the right not to incriminate oneself under the DAC6 regime

Chapter 5: The Right to Privacy

5.1. Introduction

5.2. The right to privacy in tax matters

5.2.1. The protection of the right to privacy in the European Union

5.2.2. The judgment of the ECJ of 8 December 2022, Orde van Vlaamse Balies: The right to privacy.

5.3. The possibility to invoke the right to privacy under the DAC6 regime

Chapter 6: The Principle of Proportionality in Punitive Matters

6.1. Introduction

6.2. Preliminary remarks: The EU limits to Member States' sanctioning powers

6.3. The penalty regime under DAC6: Comparative analysis and limits

6.4. The limits in the regulation of penalties: The principle of proportionality

6.4.1. The principle of proportionality in the EU legal order: The case of sanctions

6.4.2. The regulatory limits to the Member States' penalties under DAC6 arising from the principle of proportionality

Chapter 7: The Principle of Legality in Punitive Matters

7.1. Introduction

7.2. The principle of legality in the EU legal order

7.3. The consequences of complying with the disclosure obligation under DAC6: nullum crimen, nulla poena sine lege

7.3.1. Consequences in case of "aggressive tax planning" arrangements

7.3.2. Consequences in the case of "tax abuse/avoidance" arrangements

7.3.2.1. The legal response from the European Union's perspective

7.3.2.2. The legal response from the Member States' perspective

Chapter 8: The Principle of Culpability

8.1. Introduction

8.2. The principle of culpability in the EU legal order

8.2.1. Mens rea: The principle of culpability

8.2.2. Protection of the principle of culpability in the European Union

8.3. The limits in the imposition of penalties under the DAC6: The case of error of fact and error of law

8.4. The mitigating effects of compliance with the MDR on tax penalties

8.4.1. Confession as a circumstance mitigating criminal liability

8.4.2. Confession as a mitigating factor applicable to the punitive tax sphere

8.4.3. The application of the mitigating circumstance of confession to the sphere of DAC6

Chapter 9: Conclusions

9.1. Introduction.

9.2. The importance of mandatory disclosure rules and DAC6 as EU mandatory disclosure rules: What is at stake?

9.3. Fundamental rights and guarantees in the EU legal order

9.4. The principle of legal certainty

9.5. The rights of defence

9.6. The right to privacy

9.7. The principle of proportionality

9.8. The principle of legality

9.9. The principle of culpability

Bibliography

Other Titles in the IBFD Doctoral Series.

Notes:

Description based on publisher supplied metadata and other sources.

Description based on print version record.

Includes bibliographical references.

ISBN:

9789087228705

9087228708

OCLC:

1425791253