Constitutionality Review

Contested Provision

The contested provision stipulates that the Ministry of Treasury and Finance (the Ministry) is authorised, in relation to electronic service of documents, to impose an obligation to use an electronic address, to determine those to be notified electronically, and to lay down other procedures and principles relating to electronic notification.

Ground for the Request for Annulment

It is maintained in brief that the contested provision is unconstitutional on the grounds that pursuant thereto, legal entity taxpayers whose tax registrations have been terminated ex officio by the tax office cannot opt out of the electronic notification system until they are deregistered from the trade registry, and are therefore required to check electronic notifications every five days. It is further submitted that, notwithstanding the electronic notification, those who fail to submit their ledgers and documents for inspection are subject to custodial sentences, which imposes an excessive burden on the parties concerned. It is also contended that in administrative regulations, taxpayers falling within the scope of electronic notification are defined in excessively broad terms, and that, in accordance with the principle of legality of crimes and punishments, such matters should be regulated by law rather than by administrative acts. Moreover, it is argued that, unlike other official electronic notifications carried out through the infrastructure of the Post and Telegraph Organisation (PTT), records relating to electronic notifications under Law no. 213 are maintained by the tax administration, which is incompatible with the principles of equality of arms and adversarial proceedings.

The Court’s Assessment

The right of access to a court constitutes one of the fundamental aspects of the right to legal remedies. The most effective and guaranteed means for an individual to defend himself against an injustice or loss, to assert and prove his claims against an unlawful act or measure, or to obtain redress is to exercise his right to bring an action before judicial authorities.

Upon a notification by administrative authorities to the parties concerned, the statutory time-limit for bringing an action begins to run. Once this period has expired, the right to bring an action before judicial authorities is forfeited.

Those who are obliged to obtain an electronic notification address and who are notified electronically may bring an action only within the time-limits prescribed by law, starting from the end of the five-day period set out in Article 107/A § 2 of Law no. 213. While this period is generally thirty days before the tax courts, it is fifteen days for actions brought against payment orders. Actions lodged out of these periods are dismissed as time-barred. Accordingly, requiring taxpayers to use an electronic address and to accept notifications via electronic means, and attributing legal consequences to such notifications, constitutes a restriction on the right of access to a court.

It is evident that the legislature enjoys a margin of appreciation, provided that it does not contravene the safeguards inherent in the right of access to a court, in imposing an obligation to use an electronic address for notification, and in determining those to be notified electronically, as well as other procedures and principles concerning electronic notification. The contested provision empowers the Ministry, in respect of the notification of tax-related acts producing legal effects, to determine those obliged to obtain an electronic address, those to be notified electronically, as well as other procedures and principles concerning electronic notification.

Taxation is a field entailing broad regulations. Nevertheless, it has been observed that the matters, such as who may be notified electronically regarding tax-related acts with legal consequences, whether due regard will be given to regions, activities or sectors where the use of electronic address is limited, and the conditions under which the obligation to use an electronic address commences and ends, are not explicitly prescribed by the Law.

While the Law confers upon the Ministry the authority to impose an obligation to use an electronic address and to determine the persons who will be notified electronically, as well as the relevant procedure, it fails to set out the fundamental principles governing the limits of this authority.

Accordingly, the Court has concluded that granting the administration such authority, without the fundamental principles and criteria being laid down in law, is incompatible with the principle that any restriction on the right of access to a court must be prescribed by law.

Consequently, the contested provision has been found unconstitutional and therefore annulled in so far as it concerns the phrase in question.