Published on August 19, 2011
Beyond dispute, democratic, liberal regimes instantiate many advantages that all people participating within society may enjoy. But the major foundation that substantiates the notion of democracy is the principle of equality.
As it may be easily observed, all modern Constitutions clearly include and protect the principle of equality and more than that, entrench equality from many standpoints, more special. Perfect examples of this can be the gender equality, equality at work, tax equality, voting equality.
Where possible, the protection of special parts of equality prevails as lex specialis to the general principle of equality.
The aim of this paper is to give a brief analysis of how the principle of equality is described in the Constitution of Greece by focusing on the issue of tax equality so that the reader will obtain an idea of this important subject in Greece.
Principle of Equality in General
As far as the Greek Constitution is concerned, the general principle of equality is introduced in article 4, paragraph 1 which states that all Greek citizens are equal before the law. The way this principle is expressed is in line with the major idea of egalitarianism that was already developed in ancient Athens of the 5th century B.C.
The notion of equality derives from the fact that all people are born equal, have the same value and need to be respected in the same way.
In the US Declaration of Independence of 1776, Thomas Jefferson wrote: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights.” Therefore, all inalienable rights exist for all people.
The Constitution of Greece does not simply guarantee equality before the law (as it is written in the text) but also the equality of the law itself. Hence, the principle of equality applies in two levels. This means that the principle of equality applies at the legislation process so that the result of that process (the establishment of a law) will not differentiate people or categories arbitrarily. In that sense the principle of equality becomes binding on the legislative power.
The explicit guarantee of equality before the law at the highest, constitutional level makes this principle binding for the state authorities during the application of the laws. This is the second level of protection of the citizens from being treated unequally. The Courts and the administrative authorities (shall) apply the equality principle in every aspect of the process to any decision of their competency no matter if they have to apply a regular law (usually Courts) or for personal administrative actions (administrative authorities).
Furthermore, the principle of equality, especially when applied by administrative authorities shall be proportional. Cases of the same character shall be treated equally, while those that appear different shall be treated differently. Thus, taking the same actions against different cases constitutes a violation of the principle of equality. A perfect example can be, on one hand, the objective evaluation of applications for the same position in the public sector. On the other hand, some advantages given to some categories e.g. disabled people do not form a constitutional infringement.
To generalize, the application of the equality principle in each and every possible situation used shall consist of two basic principles. The first one reflects the positive understanding of equality in the sense that this principle basically and above any interpretation means the equal treatment of the same cases. The second one is related to the negative aspect of equality which means the avoidance of any discriminatory behavior on behalf of state authorities. This idea does also cohere with article 103, paragraph 1 of the Constitution (Civil servants shall serve the people).
In article 4, a preference to the citizens of Greece is mentioned as they are the only citizens to enjoy the principle of equality within the territory of the country. This statute shall be interpreted in a broader sense.
First of all, even taking the grammatical structure of article 4, the same principle applies to all citizens who own a nationality of a Member State of the European Union as all EU citizens are equal and enjoy the same privileges and obligations within the Union. Hence, it can be said that when the Constitution mentions the word “Greek”, it shall be interpreted as “European”.
Secondly, equality has been developed as a universal principle, a foundation for all democratic fundamental rights and freedoms. Therefore even in cases of non EU citizens, the Greek state, authorities and courts, shall act in accordance with that principle and avoid, where possible, discriminatory behavior.
Tax Equality in the Constitution of Greece
According to article 4, paragraph 5 of the Constitution of Greece Greek citizens contribute without distinctions to public charges in proportion to their means. Following the structure of the Greek Constitution, it is clearly understood that this paragraph contains a multi-meaning notion. It includes the tax obligation (contribute to public charges) which applies to everyone (without distinctions) and it also guarantees the tax equality and justice (in proportion to their means).
The roots of this specific type of equality can be found, at a constitutional level, in the US Constitution of 1787 where it is stated that: “All duties, imposts and excises shall be uniform throughout the United States”. At the same historical period, in France in 1789, the Declaration of the Rights of the Man and of the Citizen included also this specific equality by stating that a common contribution is essential for the maintenance of the public forces and for the cost of administration. All those costs should be equitably distributed among all the citizens in proportion to their means.
In the Greek constitutional history, this article was included from the very beginning, in the Constitution of 1822. Having been developed at a later stage (important stages were the statutes formed at the Constitutions of 1827 and 1844), the formulation as it is nowadays is a result of the 1911 amendment. This principle is now put at the very beginning of the Chapter dedicated to constitutional rights (articles 4-25) in the Constitution of Greece.
1. Tax Obligation
Generally speaking the meaning of tax is strongly related to an obligation. Giving a brief definition, tax is a direct (primarily) and definitive grant of the privates to the public authority, that is necessary for the coverage of the public charges.
The notion of tax in reference with tax obligation becomes very broad. It includes all kind of public expenses, excises or imposts (state or municipal) or generally speaking all direct and indirect taxation that the public authorities may demand for the coverage of public charges.
According to article 25, paragraph 4 of the Constitution, the State has the right to claim of all citizens to fulfill the duty of social and national solidarity. Tax obligation falls into the scope of this provision and becomes a very important way of contribution. As a matter of fact the State, through tax obligation, reduces the economic power of people with the outcome to be the combat of social inequalities.
Via salary-paying programmes, stipends and other programmes of social policy nature, the State targets (shall target) the economically inferior categories and as a result increase their economic level. Especially nowadays, taxation has become the most important piece of public income and the major tool for promoting economic and social governmental plans.
This fact also concurs to the correspondence of tax obligation with the tax power that belongs to the State. Under some specific circumstances a person may be in a position to sacrifice personal benefits for the general interest. Furthermore, in a more extreme case, people lose benefits because of, for example, natural disasters or terrorist actions. In all those cases the general rule is that the State is not obliged to pay any kind of remuneration to citizens that have dealt with those problems unless it is precisely mentioned by the law.
A perfect example could be article 17, paragraph 2 of the Constitution which guarantees remuneration for expropriated property. Everyone who is deprived of his/her property shall be fully compensated even if it is for the public benefit. Practically speaking, in matters dealing with natural disasters or terror the State usually tries to provide with any possible means to the victims financial aid as part of its social policy.
Article 4, paragraph 5 (like paragraph 1) refers that the provision applies to Greek citizens. With reference to tax obligation, it can be observed that this principle practically oblige Greek citizens that have incomes in Greece or other kind of benefits to follow the rule. For people, even Greek, that have no economical relation with the country, the tax obligation of article 4, paragraph 5 is not applicable. Furthermore, people that have the nationality of another country have tax obligations if they are economically related to Greece. For those cases bilateral agreements have been signed among States in order for double taxation to be avoided.
As mentioned above, article 4, paragraph 5 of the Constitution dictates the tax obligation without distinctions. At this point the Constitution does not ban every kind of distinctions, just those that are in contrary with the general principles of its tax policy and at the highest level, on the contrary with the meaning of social justice.
Cases of the above mentioned may be distinctions that are based on actions that violate the Constitution, such as distinctions based on sex, language, religion etc. It is a constitutional violation of article 4, paragraph 5 if an Orthodox Christian is exempted from paying taxes on the ground that Orthodoxy is the prevailing religion in Greece. In addition, of course a different measurement of taxation among men and women would create constitutional problems.
Distinctions that create disadvantages to categories that the Constitution directly wants to protect are also against the spirit of article 4. A perfect example can be found in article 21 of the Constitution which includes the protection and promotion of family which is characterized as the foundation of the Nation. Therefore, a more severe taxation to a family in comparison to single is not allowed. Other examples of categories that enjoy special state care according to article 21 are widows and orphans of war heroes, and people who face a fatal disease.
From the above, tax abatements and exclusion that are allowed by the Constitution as set in article 78, paragraph 4 shall be differentiated. The difference is set on the ground that those exclusions firstly and more importantly do (shall) not violate the Constitution nor have a notion of creating “favours” in some people or categories within society. The sole criterion for tax exclusion is the promotion of social justice or the implementation of a certain tax policy on behalf of the government.
In the first case, people with limited economic power are included, usually below a certain personal budget per year. In the second case, tax exclusion or aid is granted to companies or other enterprises of a specific industrial sector which is developed in a specific, most of the times developing, part of the country. This refers to the strategic plan of the government for sustainable development and therefore is not against the Constitution.
Finally, the tax abatements and tax exclusion cannot be granted on the basis of legislative delegation. The law must be established by the competent institution (Act of Parliament) in accordance with the formal and parliamentary procedures; plus that law cannot delegate powers to local authorities. Therefore, a decision of a local authority is not in a position to grant any kind of tax abatements.
The indistinctive obligation as related to tax applies to Greek citizens. As mentioned above, the economical connection of third-country nationals (non-EU citizens) with Greece creates tax obligations on behalf of the citizens. Therefore, any kind of tax exception cannot be just based on the ground of nationality. Moreover, non EU based companies are allowed to tax exceptions if it is for the application of a specific governmental developmental plan.
Tax Equality – Tax Justice
Tax obligations as described in article 4, paragraph 5 of the Constitution cannot and shall not be unrestrictive. As mentioned, the main purpose of tax collection is the coverage of public charges; and applies without distinctions. However, not all people have the benefit of a good life that depends on a high economical position, therefore not all people shall contribute to public charges in the same amount.
This major idea is reflected at the Constitution of Greece. At the end of article 4, paragraph 5 the principle of equality and justice in tax is included as all Greek citizen pay taxes in proportion to their means.
The equality that is described in the Constitution does not replicate a type of absolute, mathematical principle. It is in line with proportionality in the sense that every citizen contributes to public charges the way she/he can and the tax laws shall be interpreted in that way. As a result, a typical, mathematical approach of tax equality is prohibited according to article 4.
Therefore, as applies to general principle of equality, cases of the same character shall be treated equally, while those that show differences shall be treated differently.
In that sense, the Constitution sets the basic lines in the formulation of the tax system in Greece. Of course it is highly impossible for a Constitution to establish a specific detailed tax system, as this role is vested in the Government, but it steers the tax system by including the principle of tax social justice and equality.
At this point, it would be important to mention that the principle of tax equality and tax justice consists of a dual meaning. Firstly, it contains an objective legal rule that needs to be applied by State authorities. Secondly, tax equality and tax justice include a fundamental right granted to citizens that may be used in cases that this specific principle is infringed. For those cases citizens shall use another fundamental right guaranteed in article 20 of the Constitution, the right of legal protection.
The above mentioned fundamental right is granted by the Constitution to Greek citizens. As Greek citizens are primarily obliged to contribute to public charges, they enjoy the right of equality and justice as related to that obligation. Nevertheless, this does not imply that third-country nationals (non-EU citizens or companies) that have economical relations with Greece and hence pay taxes shall be abused by the tax system. They certainly enjoy the right of legal protection so that they can plead their views and interests before Courts.
Closing this paper we would like to observe that the protection of equality and tax equality in the Constitution of Greece can be characterized as adequate and in line with all western-type Constitutions as well as with the highest legal text concerning fundamental rights, the European Convention on Human Rights.
But like with any other fundamental rights, the substantial success of its protection is confirmed in the practical application during day time life.
From the very beginning the executive power (government) must always take into consideration the social needs and situations in developing a tax system and the subsequent results that this system may create for society.
Courts, as well as administrative authorities, shall pay much of attention in applying equality in practice; its application shall be proportional. When the administration has to choose among several equally legitimate solutions, the one that affects less the interests of the citizen shall be applied.
The institutional framework of protection of every fundamental right is beyond dispute the first step that must be taken, but not the only one.
Especially for equality that substantially includes the very deep notion that separates democracy from autarkical regimes. For that reason, all state authorities shall try to grant privileges only in situations really needed, while always having in mind that the ultimate goal is the protection of the citizen.
Konstantinos G. Margaritis is a PhD candidate at the Law School of National and Kapodistrian University of Athens, Attorney at Law, member of Heraklion Bar Association.
Katerina M. Dokianaki is a Tax Officer, Head of the Legal Division of the 2nd Public Financial Service of Heraklion.