The Masa Investment Group as a ‘NEC Plus Ultra’ Case for the Application of the European Convention on Human Rights to Tax Law?

Introduction:

The European Convention on Human Rights caught the interest of the international tax community very late, if compared with the study of other disciplines of international law. Some authors have tried to find justifications for this delay. Undoubtedly, the extension of the definition of human rights to "second generation rights" (including those economically based ones) is quite recent, and no Articles of the Convention explicitly make reference to tax law. The only clear mention of this subject is in Art. 1, s. 2 of the First Protocol of the Convention.

This situation was considered a justification in the past to neglect the relevance of the Convention to this field of law, and arguably, the same mistake still characterizes the everyday interpretation of the European Court of Human Rights (ECHR) in the field of taxation. In this sense, the decision of the ECHR on the Masa Investment group case can be considered the latest development of this trend.

Other authors have noted that in many cases, the ECHR judges seem reluctant to challenge national tax rules, mostly because of the few possibilities available within the text of the Convention, but at the same time leading to a sort of interpretatio abrogans of it that cannot be fully implemented. In this sense, the Masa Investment group case is a paradigmatic example of the approach to tax cases by the Court.