Formalismul excesiv în interpretarea și aplicarea dreptului unional de către autoritățile fiscale și vamale (II)
Excessive formalism in the interpretation and application of EU law by tax and customs authorities (II)

Summary/Abstract: In tax and customs practice, the recognition of an economic operator’s entitlement, such as the right to deduct or obtain a refund of VAT, benefit from an excise duty exemption, claim withholding tax relief, or rely on preferential origin is often denied by the tax and customs authorities on the grounds that certain formal requirements have not been strictly complied with. Through the present study, we aim to examine the role of the formalities required to prove the existence of a right, and where excessive formalism begins, within the overall framework of European Union tax law and customs law, by analysing the case law of the Court of Justice of the European Union, the European Court of Human Rights, and the national courts. We consider that formal requirements are evidentiary and supervisory mechanisms rather than substantive conditions for the creation or exercise of a right or tax/customs benefit. Consequently, where the substantive conditions can be established by other means other than those required by the tax and customs authorities, the refusal to recognize a right solely on the basis of non-compliance with a formal requirement is incompatible with the principles of proportionality and neutrality and may constitute a manifestation of excessive formalism, capable of amounting to an abuse of administrative power.

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