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Session 2: Retroactivity in legislation; ‘Legislating by press release’

Session 2: Retroactivity in legislation; ‘Legislating by press release’. Thesis: Retroactive effect until the moment of earlier announcement of the tax bill, is no problem, as no legitimate expectations are infringed. Introduction by: mr. dr. Melvin R.T. Pauwels –Tilburg University.

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Session 2: Retroactivity in legislation; ‘Legislating by press release’

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  1. Session 2: Retroactivity in legislation; ‘Legislating by press release’ Thesis: Retroactive effect until the moment of earlier announcement of the tax bill, is no problem, as no legitimate expectations are infringed Introduction by: mr. dr. Melvin R.T. Pauwels –Tilburg University

  2. An example from Dutch legal practice • Withdrawal of the personal computer arrangement (a ‘tax subsidy’) in the wage act and income tax act August 27, 2004: press release by State Secretary of Finance: “Herewith I inform you that Council of Ministers has decided that to withdraw the personal computer arrangement as from now, August 27, 2004, 5.00 p.m.” September 21, 2004: bill is submitted with Parliament December 16, 2004: bill is adopted, and the statute enters into force: “1. (...) this statute comes into force as from January 1, 2005 (...) 3. Partly deviating from the first paragraph article IV has retroactive effect until August 27, 2004, 5.00 pm”

  3. Characteristics • General Report EATLP: • In a lot of countries, government sometimes uses (a variant of) the technique of ‘legislating by press release’ • Characteristics of the technique: • Announcement by government that (i) legislation will be proposed, and that (ii) the proposed legislation will have retroactive effect till announcement date • Often done on the same date on which the bill concerned is submitted with Parliament • Legislation is introduced and has retroactive effect till the date of the announcement

  4. Basic idea, main goal and use • Basic idea: • no legitimate expectations are infringed by retroactivity • Main goal: • Preventing ‘announcement effects’ • Use: • Often applied in case of anti-abuse legislation • However also broader applied: e.g. in case of withdrawal of ‘tax subsidy’

  5. Issues / Discussion points Fundamental issues: • Principle of democracy? • Rule of law? • No legitimate expectations are infringed? • Critical view of A-G Tizzano (Stichting Goed Wonen-case; C-376/02)

  6. Issue of legitimate expectations • Opinion A-G Tizzano (Stichting Goed Wonen-case; C-376/02): - “the principle that the behaviour of citizens is guided and regulated by laws rather than by press releases.” - “the existence of a particular practice in a country must not lead to a situation throughout the Community in which (…) taxpayers (…) are called on to rely more on announcements in the press than on the law in force.”

  7. Issues / points of discussion Fundamental issues: • Principle of democracy? • Rule of law? • No legitimate expectations are infringed? • Critical view of A-G Tizzano (Stichting Goed Wonen-case; C-376/02) Concrete issue: • Should there always be a justification for using the technique of ‘legislating by press release’? • if so, in which kind of situations ‘legislating by press release’ could be justified

  8. Thesis Retroactive effect until the moment of earlier announcement of the tax bill, is no problem, as no legitimate expectations are infringed

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