Limitation on Administrative Penalties by the ECHR and the EU Charter: the View from the Netherlands
The paper elaborates on certain Dutch themes regarding the limitation on administrative penalties by the European Convention of Human Rights (ECHR). For the Netherlands, a country without a constitutional court and constitutional review by the courts, the ECHR is very important. This is illustrated by examples from the past, such as the introduction of a second factual court in tax cases and the terminology switch from surcharges to penalties. One could wonder whether the major gap between the market interest and the Dutch interest for late tax payments should not be regarded as a penalty for which the ECHR safeguards should apply. This might become the subject of a future case. The ne bis idem principle has been implemented in Dutch legislation, but has been restricted to prevent abuse. In the Netherlands, the nemo tenetur principle was very hot over the past years. This regarded especially the question on whether documents in the possession of the tax payer exist independent of the will of the tax payer. According to very recent case law of the Dutch Supreme Court, this is the case. However, it is unclear how this judgment relates to the JB case of the ECtHR. It is clear from these examples that the ECHR will remain very important for the Netherlands, also in the future.