1. 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

2. 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

3. 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

4. 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

5. 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

6. 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: 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

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