Participants in the regional conference in Brčko
Participants in the regional conference in Brčko

From 12 to 14 April 2018, a conference on “Tax law in constitutional court jurisdiction” was held in Brčko in Eastern Bosnia. This “district” has a special status in the constitutional structure of the state of Bosnia and Herzegovina. The conference was financed by funds from the German Federal Foreign Office allocated to Germany’s contribution to the Stability Pact for South-East Europe and was organised by the Constitutional Court of Bosnia and Herzegovina and the IRZ.

Judges and legal staff from the constitutional courts of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro and Serbia attended the conference to learn about the respective case law practised in neighbouring states, at the European Court of Human Rights (ECtHR) and at the German Federal Constitutional Court (BVerfG).

The event was opened by the President of the Constitutional Court of Bosnia and Herzegovina, Mirsad Ćeman, and the Deputy Mayor of the District of Brčko, Dr. Anto Domić. Dr. Stefan Pürner welcomed the participants on behalf of the IRZ and the German Ambassador, Christiane Hohmann, who was unable to attend.

Speakers representing the various regions were:

  • Zlatko M. Knežević, who is also one of the Vice-Presidents of the Constitutional Court of Bosnia and Herzegovina,
  • Desanka Lopičić (Montenegro),
  • Sabahudin Tahirović (Serbia),
  • Dr. Mato Arlović (Croatia) and
  • Dr. Osman Kadriu (Macedonia).

The lecture on Germany was given by Professor Marc Desens from the department of Public Law, in particular Tax Law and Public Commercial Law, at the law faculty in Leipzig. Professor Desens also used to work as a researcher for the second senate of the BVerfG, which is responsible for tax law.

The event revealed the differences and similarities between Germany and the represented West Balkan states, as well as between the different countries in the region. The similarities include the fact that all constitutional courts make it clear that they avoid “constitutional actionism” and therefore decide only on violations to the constitution and not on the infringement of subconstitutional law. They also respect the considerable leeway of the legislator to define their own tax laws.

Opinions divided, however, when it came to the question of which aspects of tax law, which are fundamentally protected by the constitution, should be weighed up against state financing interests. In some of the participating states, the focus here is on intervention in property, whilst in Germany, the principle of equality is mostly used as a standard of review for state intervention through taxes.

There were also differences in the way in which constitutional courts are involved in tax law cases: Unlike in Germany, where 167 of the 170 decisions made by the BVerfG on tax law resulted in Normenkontrollverfahren (judicial review proceedings on the constitutionality of laws), in some states constitutional complaints prevail.

In many cases, South-East European constitutional courts established an infringement of fundamental civil rights concerning court proceedings. This ranged from omitting to clarify facts to cases lasting excessively long (in some cases 10 to 12 years) and to breaches of the right to a hearing through omitting to provide reasons for the decisions of the authorities and courts.

These and other deficiencies mentioned show that further activities are required in the field of tax law, which is very important, not least for the economy and for German investors in the partner states.

The organisers of the regional conference will take this situation into account by publishing the lectures (together with a report of the discussions) in a conference transcript. This will ensure that the events create a new medium, allowing a wider audience to benefit from the targeted results.