Proportionality Principle in the CJEU Judgments on Tax Cases

• Pages: 22-33

28 LEX PORTUS VOL 9 ISS 4 2023

DOI 10.26886/2524-101X.9.4.2023.3

Proportionality Principle in the CJEU Judgments

on Tax Cases

Simeana Beshi*, Driola Susuri**

*Full teaching assistant, Faculty of Law, University “Ukshin Hoti” Prizren (1, Rruga e Shkronjave, Prizren, Republic of Kosovo)

https://orcid.org/0000-0003-2307-6609

**Full teaching assistant, Faculty of Law, University “Ukshin Hoti” Prizren (1, Rruga e Shkronjave, Prizren, Republic of Kosovo)

https://orcid.org/0009-0006-0082-5207

ABSTRACT

This article provides a comprehensive jurisprudential analysis of the principle of

proportionality in EU law in the context of avoiding, abusing, and preventing tax evasion,

as highlighted by the CJEU’s jurisprudential practices. This study aims to clarify how the

principle relates to the multifaceted challenges tax evasion poses for the EU. Key findings

from this research underscore the pivotal role played by the principle in ensuring that EU tax

laws effectively combat tax evasion while safeguarding fundamental rights and principles of

justice. The CJEU’s jurisprudential practices provide valuable insights into the interpretation

and application of this principle in concrete cases, offering guidance to Member States and

practitioners in the field. This study contributes to the ongoing discourse surrounding tax

evasion and its countermeasures within the EU. As the EU continues to evolve its tax policies

in an increasingly globalized and interconnected world, understanding the nuances of the

principle of proportionality becomes indispensable. This research is a valuable resource for

policymakers, legal practitioners, scholars, and stakeholders interested in enhancing the

coherence and effectiveness of EU tax law while upholding the rule of law and protecting the

integrity of the internal market.

CITATION

Beshi, S., & Susuri, D. (2023).

Proportionality Principle in the

CJEU Judgments on Tax Cases. Lex

Portus, 9(4), 28–39.

https://doi.org/10.26886/2524-

101X.9.4.2023.3

KEYWORDS

EU tax law, VAT, legality, fairness,

harmonization

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NonCommercial-ShareAlike 4.0

International License

Introduction

“The principle of proportionality has been developed by the Court of Justice of the

European Union [CJEU] deriving from the rule of law and requires in particular that the

individual should not have his freedom of action limited beyond the degree necessary

in the public interest” (Tridimas, 1999, p. 136). The principle was rst mentioned in the

CJEU’s decision in the case of Fédéchar (Fédération Charbonnière de Belgique v. High Authority

of the European Coal and Steel Community, 1956). However, the Court did not explicitly cite

proportionality (Moossdor, 2011, p. 6) until it handed down its verdict in the international

Handelsgesellschaft case (Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle

für Getreide und Futtermittel, 1970).

The principle of proportionality is used to evaluate the performance of European Union (EU)

institutions and forms the foundation for assessing Member States’ actions (Bącal et al., 2013,

p. 145–146). Article 3b (3 and 4) was incorporated into the Treaty on European Union (TEU)

and the Treaty Establishing the European Community by the Lisbon Treaty, which amended

Articles 5/4-5 of the Treaty on European Union and serves as the normative basis for the idea of

proportionality in the legal system (Mudrecki, 2018b, p. 635).

This principle calls for a reasonable or appropriate balance between the authority

that Member States may employ to avert possible abuse, evasion, or avoidance and the

implementation of the values, rights, and duties contained in value-added tax (VAT) legislation.

The CJEU has repeatedly underlined that any measures a Member State takes to thwart