International Association of Tax Judges Consiglio di Presidenza della Giustizia Tributaria Symposium 29 September 2017, Rome Ethical Requirements Substitute Tax Judges in The Netherlands Wim Wijnen Retired Substitute Tax Judge Court of Appeal ‘s-Hertogenbosch, The Netherlands

The playing field Ethics and the philosophers Plato and Voltaire Ethics and (tax) judges: broad field Focus on judges with other activities: ordinary judges with secondary activities substitute judges for whom the judicial activity is not the main activity International Association of Tax Judges, 29 September 2017, Rome

Substitute judges Position of substitute judge not different except not allowed to sit single not allowed to chair the panel not more than one in a panel of three judges Number of hearings Remuneration ordinary career judges (similar to higher civil servants) up to Eur 115/120,000 and presidents of District Courts, Appeal Courts and Members Supreme Court Eur 120/150,000 substitute judges appr. Eur 350 per hearing day (in general 3 to 4 cases) International Association of Tax Judges, 29 September 2017, Rome

Why substitute judges? Why are tax lawyers prepared to operate as a substitute judge? for the honour to serve the public interest better understanding how judiciary works for their reputation (business cards, conference slides etc.) Why the judiciary makes use of outsiders? specific expertise not for budgetary reasons not for production purposes International Association of Tax Judges, 29 September 2017, Rome

Annual tax case load Number of inhabitants: 17 miljon Number of tax cases 2015 to 2017 (average): - District Courts 26,000 - Courts of Appeals 4,000 - Supreme Court 1,000 Number of ordinary tax judges: - District Court 50 - Courts of Appeals 50 Supreme Court 12 Number of substitutes 40 to 50 Number of cases 400 to 450 International Association of Tax Judges, 29 September 2017, Rome

Lead time Lead time from objection against assessment to decision Supreme Court: appr. 3 years - tax authorities: 12 months from objection to assessment - district court: 6 months - court of appeal: 6 months - supreme court: from 320 days in 2013 to 265 in 2016 - full treatment appr. 30 to 35 % - rest simplified procedure International Association of Tax Judges, 29 September 2017, Rome

International ethical rules Bangalore Principles of Judicial Conduct (2002) Magna Carta of Judges of Consultative Council of European Judges (2011) Code of the European Network of Councils for the Judiciary Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities of the Council of Europe Opinion no. 3 ‘Ethics and Liability of Judges’ of the Consultative Council of European Judges (CCJE) to the attention of Council of the Ministers of the Council of Europe International Association of Tax Judges, 29 September 2017, Rome

Domestic ethical rules Applicable laws, guidelines, codes of conduct etc.: Rules applicable to civil servants Guidelines Impartiality of the Judge (2004) Code of Conduct of the Judiciary (2010) Code of Conduct of the Netherlands Association of the Judiciary (2011) Law on Legal Position of Judges regarding Secondary Activities (2012) Guidelines Impartiality and Secondary Activities (2014) Integrity Code Court of Appeal ‘s-Hertogenbosch (2004) International Association of Tax Judges, 29 September 2017, Rome

Main ethical rules regarding secondary activities Basic rule is the prevention of loss of trust in the judiciary: any discussion should be avoided. Specific rules/recommendations a judge should not be involved in cases in which he is or was involved in another capacity whatever it is no commercial activities only outside working hours report all activities in public register membership of political party allowed but not of (local) parliament (secondary) functions of family members direct investments in a company should be avoided (investments only in collective investment vehicles) detailed list of secondary activities also a list of activities that are not considered as secondary activities International Association of Tax Judges, 29 September 2017, Rome

Specific rules for substitute judges Guidelines for substitute judges maximum of one substitute in a three judge panel not acting as chair or single judge not being active as a practioner in the same district not sitting in cases in which he was involved under his main activity not sitting in cases in which a colleague of his law firm is involved not sitting in cases, if he has publically expressed an opinion that is relevant to a case report all activities in public register, updated every year International Association of Tax Judges, 29 September 2017, Rome

Safeguards Basic ethical rules avoid any form of doubt own responsibility of the judge Safeguards for ethical correctness, suggestions - discuss it with colleagues discuss it with superior Committee Integrity and Independence Transparency Advises of the Committee are published on the website of the court International Association of Tax Judges, 29 September 2017, Rome

Practical examples Two recent examples from practice that raised discussion within the judiciary (not outside) Substitute judge of a court of appeal gave his opinion about a decision of a district court in his capacity as academic Substitute judge of a district court was member of a panel dealing with an issue she had written a learned article about in her capacity as academic Own experience with an unexpected situation International Association of Tax Judges, 29 September 2017, Rome

International Association of Tax Judges Thanks for your interest International Association of Tax Judges, 29 September 2017, Rome