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Session 2: Session 2: Retroactivity in legislation; Retroactivity in legislation;

‘Legislating by press release’‘Legislating by press release’

Introduction by:mr. dr. Melvin R.T. Pauwels –Tilburg University

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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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”

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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:1) 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

2) Legislation is introduced and has retroactive effect till the date of the announcement

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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’

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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)

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Issue of legitimate expectationsIssue 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.”

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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

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Thesis

Retroactive effect until the moment of earlier announcement of the tax bill,

is no problem,

as no legitimate expectations are infringed