Erasmus Law Review

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Issue 2, 2022 Expand all abstracts

Madeleine Merkx
Madeleine Merkx is Professor of indirect taxes at Erasmus University and partner at the Tax Research Center of BDO, the Netherlands.

Access_open Legal Protection in the Context of International Exchange of Information upon Request between Tax Authorities

Keywords legal protection, Berlioz, État luxembourgeois, foreseeably relevance, directive of administrative cooperation (DAC)
Authors Willem Boei and Janco van Dam
AbstractAuthor's information

    Countries are increasingly using the method of international exchange of information to share information about taxpayers between countries. Both in an EU and OECD context, the legal basis for such information exchange has been broadened significantly in recent years. However, the legal protection for parties affected by such international information exchange does not seem to keep pace. In this article, we discuss the legal protection against the exchange of information on request. We conclude that there is legal protection for information holders who are being ordered to exchange information with their tax authority so that this tax authority can fulfil a request to exchange information with its local counterpart based on the EU administrative cooperation directive (DAC). If the information holder is also the taxpayer being investigated by the requesting EU Member State, it is not clear whether legal protection exists. In situations where information is exchanged on non-DAC basis, like for example, based on a tax treaty or a tax information exchange agreement (TIEA), there is no case law that stipulates any legal protection. Against the actual exchange of information from a state to another state no minimum standard of legal protection exists. Furthermore, we give a brief overview in this article of the legal protection according to Dutch law and give suggestions for a framework for legal protection.

Willem Boei
Willem Boei is law clerk at the Supreme Court of the Netherlands and lecturer in tax law at Erasmus University Rotterdam.

Janco van Dam
Janco van Dam is tax partner at Ernst & Young Belastingadviseurs LLP.

Access_open Exchange of Information, Tax Confidentiality, Privacy and Data Protection from an EU Perspective

Keywords confidentiality, privacy, data protection, DAC, exchange of tax information
Authors Esther Huiskers-Stoop, Almut Breuer and Mark Nieuweboer
AbstractAuthor's information

    The call for more transparency in the (tax) world can hardly be overstated. One of the most prominent ways to achieve tax transparency is the exchange of information between countries. Achieving a proper balance between the exchange of information, tax confidentiality and privacy is however quite a challenge. In this article, the authors investigate some of these challenges. For the purposes of this contribution, confidentiality means that the information exchanged is used and disclosed only in accordance with the legal basis on which it was exchanged, while privacy focuses on the right to respect private life and communications, as well as the protection of personal data. More specifically, the authors elaborate on the question as to what extent do the international and European data exchange obligations deserve particular attention in the light of the privacy provisions of Article 8 ECHR and Articles 7 and 8 Charter, when it comes to the use of information for non-tax purposes, the provision to other (Member) States and the exchange of information concerning legal entities.

Esther Huiskers-Stoop
Esther Huiskers-Stoop is Assistant Professor of Tax Law at the Institute of Tax Law and Economics of Leiden University, the Netherlands.

Almut Breuer
Almut Breuer is Assistant Professor of Tax Law at the Maastricht University and independent attorney at law in Alkmaar, the Netherlands.

Mark Nieuweboer
Mark Nieuweboer is Lecturer of Tax Law at the Institute of Tax Law and Economics of Leiden University and independent tax adviser in Rotterdam, the Netherlands.

Access_open Exchange of Information in the Field of Indirect Taxes

Keywords fraud, tax evasion, legal protection, indirect tax, information exchange
Authors Lennart van Verseveld
AbstractAuthor's information

    In a world where globalised operations are the norm rather than the exception, tax authorities struggle to keep up. With numerous businesses and likewise a lot of tax payers it is difficult to deal effectively with those pretending to be above the (tax) law. In line with the adage ‘knowledge is power’ and by way of cooperation between tax authorities, a joint battle is fought to combat tax evasion and avoidance. Information exchange is one of the means available to tax authorities to collect, share and act on information to secure tax revenues. This is also the case for indirect taxes. This contribution examines the development of legislation governing information exchange to prevent tax revenue loss in the field of indirect taxes. Within this field, VAT is especially interesting as certain persistent types of fraud prove difficult to combat. Missing Trader Intra-Community fraud is the prime example of this. The key characteristics of this fraud are further examined. A better understanding of fraudulent activities that information exchange aims to prevent provides more nuanced views on far-reaching regulatory provisions governing information exchange. One implication of the information disadvantage tax authorities face is that there is hardly any provision protecting the legal position of tax payers. An appeal system, providing tax payers with the opportunity to object to collection and exchange of their information, is lacking. It remains to be seen whether this is in line with the principle of proportionality when technological developments eliminate the information disadvantage of tax authorities.

Lennart van Verseveld
Lennart van Verseveld, LL.M., is an Indirect Tax advisor at Ernst & Young (

Access_open The Contribution of Trust to the Practical Implementation of VAT E-commerce Rules

Keywords VAT, e-commerce, One-Stop-Shop, administrative cooperation, trust
Authors Anne Janssen
AbstractAuthor's information

    The aim of this article is to explore the role of trust in the regulatory interorganisational relation between the Member States regarding the practical implementation of the Council Regulation on administrative cooperation regarding VAT e-commerce. The effective practical implementation of the VAT e-commerce rules depends on active cooperation, which requires trust, between the Member States. Research on the impact of a lack of trust between the Member States on the practical implementation of the VAT e-commerce rules is needed, on the one hand, because this impact is not sufficiently discussed in the literature, and, on the other hand, because this impact is not adequately addressed by either the Member States or the European Commission. This article shows how trust literature could be useful to enhance the practical implementation of the VAT e-commerce rules. The implications of trust literature could help to improve trust between the Member States, which could enhance the practical implementation of the VAT e-commerce rules. Furthermore, this article shows that some aspects remain underexposed, e.g. the influence of Member States’ sovereignty on the level of trust and cooperation and what technology could mean for creating a positive trust-building process. The article is a preliminary analysis. Further research on this topic is necessary.

Anne Janssen
Anne Janssen is a lecturer and PhD researcher at Erasmus University Rotterdam. The author is also employed as tax advisor at Deloitte Netherlands.

Access_open Tax Cooperation and Exchange of Information

The Issue of ‘Circulation of Evidences’

Keywords administrative cooperation, taxpayer protection, evidences, evidences unlawfully obtained, tax cooperation, exchange of information
Authors Francesco Cannas
AbstractAuthor's information

    The article analyses the fragmentation that currently characterises the interstate tax cooperation environment. This also has repercussions for the functioning of national tax systems and taxpayer protection. The Italian experience is contextualised therein with an in-depth description and analysis of the international and European framework that accentuates the various evolutionary paths and reasons behind cooperation. In particular, the focus is on the issue of the circulation of evidence that is characterised in the Italian legal system by an additional level of fragmentation. In conclusion, elevating some standards already present at the European level is proposed in order to begin a process of piecing it together.

Francesco Cannas
Francesco Cannas is Senior Researcher in Tax Law at the University of Torino, Turin, Italy.

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