The Implementation of Anti-BEPS Rules in the EU by Pistone Pasquale;Weber Dennis;

Author:Pistone, Pasquale;Weber, Dennis;
Language: eng
Format: epub
Publisher: IBFD Publications USA, Incorporated
Published: 2018-08-15T00:00:00+00:00

As far as tax law is concerned, China has established the basic principle that a tax obligation can be created only by a law passed by the legislature, the National People’s Congress and/or its Standing Committee. Under paragraph 6 of article 8 of the Legislation Law of 2015, “[o]nly national law may be enacted in respect of matters relating to basic systems for taxation such as the establishment of taxes, determination of tax rates and tax collection and management”. Of course, article 9 of the Legislation Law of 2015 authorizes the central administration (namely the State Council) to enact administrative regulations in respect of tax matters on which no national law has been enacted in respect of a matter listed in article 8 of the law. 28 However, such authorization must follow a series of restrictive requirements, and such authorization is only valid for 5 years, unless the decision on the delegation stipulates otherwise. As the maximum length of the delegation of legislation was added by the Legislation Law on 15 March 2015, it is generally interpreted that the tax legislative authorization delegated to the State Council will end in 2020. 29

Articles 8 and 9 of the Chinese Legislation Law on the restriction of delegated legislation and article 93 of the Chinese Legislation Law of 2015 on the general principle prohibiting ex post facto legislation have made Chinese tax law stand firmly against the retroactivity/retrospectivity of tax legislation, including interpretive statutes and validation statutes.

Article 2 of the French Civil Code prohibits lois rétroactives (retroactive laws), stating that “[l]egislation provides only for the future; it has no retrospective operation”. 30 Article 8 of the French Declaration of Human and Civic Rights of 26 August 1789 also states that “[t]he Law must prescribe only the punishments that are strictly and evidently necessary; and no one may be punished except by virtue of a Law drawn up and promulgated before the offense is committed, and legally applied”. 31

Clause 2 of article 103 of the German Basic Law requires that “[a]n act may be punished only if it was defined by a law as a criminal offence before the act was committed”. 32

Paragraph 2 of article 25 of the Italian Constitution declares that “[n]o punishment may be inflicted except by virtue of a law in force at the time the offence was committed”. 33

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