The lack of protection of taxpayers’ procedural rights during the Exchange of Information in the international tax treaties and EU law and the supplementary role of the ECtHR and the European Data Protection law

This essay aims at analysing which level of protection is effectively granted to the taxpayer by the international treaties and EU law that regulate the exchange of information procedure in tax matters. Starting from the assumption that the taxpayer is, first and foremost, a human being, as such, holder of any human rights, also the procedural ones, we are going to remark that, however, as we shall see, international treaties are lacking in explicit provisions concerning the protection of taxpayer’s procedural rights. Hence, our inquiry moves from the analysis of the provisions, if any, about the taxpayer’s procedural rights contained in the international treaties on Exchange of Information in tax matters, from Article 26 of the OECD Model of Tax Convention, to the TIEA Model, to the MAAT Convention. Then, our study takes into consideration the international treaties concerning human rights to check if we can infer the existence of general principles that can be extended to the peculiar context of tax proceedings, from the ECHR and its narrow concept of fair trial referred to in Article 6, to the practice of the European Court of Human Rights and its approach to the application of the fair trial principles to tax matters, to the international practice outside the ECHR system. In the end, we aim at demonstrating that, although the absence of specific provisions, anyway there is a bulk of procedural rights which is part of the fundamental right to a fair trial, that the taxpayer should be able to invoke, if involved in exchange of information procedures.