YEARBOOK OF PRIVATE INTERNATIONAL LAW

YEARBOOK OF PRIVATE INTERNATIONAL LAW VOLUME VI 2004 PETAR ŠARČEVIĆ Professor at the University of Rijeka EDITORS PAUL VOLKEN Professor at the University of Fribourg ANDREA BONOMI Professor at the University of Lausanne PUBLISHED IN ASSOCIATION WITH SWISS INSTITUTE OF COMPARATIVE LAW LAUSANNE, SWITZERLAND Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne

Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne ISBN-10 3-935808-36-4 ISBN 3-7272-2718-4 ISBN-13 978-3-935808-36-1 Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.ddb.de abrufbar. 2005 by Sellier. European Law Publishers GmbH, München, Stæmpfli Publishers Ltd., Berne, and Swiss Institute of Comparative Law. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Herstellung: Karina Hack, München. Druck und Bindung: Pustet, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany.

Foreign Revenue Claims in European Courts I. Introduction In October 2000, a civil suit was filed by the European Community with the United States District Court for the Eastern District of New York against some U.S. tobacco manufacturers that were alleged to have been involved in the smuggling of goods into the European Community. With its action, the European Commission sought mainly monetary compensation for losses caused by the smuggling to the financial interests of the Community and, to some extent, to the interests of the Member States (customs duties and VAT), plus treble and punitive damages. The action was based on the Racketeer Influenced and Corrupt Organizations Act (RICO), 1 and on other counts such as common law fraud, negligence, negligent misrepresentation, unjust enrichment, and public nuisance. One of the issues at stake in that suit concerns the so-called revenue rule. Under that rule, the U.S. courts are not obliged and as some put it are not even allowed to enforce and to take notice of foreign tax laws and foreign judgments for the collection of taxes. However, the precise meaning of this rule and its bearing on the present litigation was far from certain. In particular, the European Commission took the view that the said rule was inapplicable where the United States had committed itself in an international agreement on mutual assistance in customs matters, as it had in its bilateral relations with the European Community. 2 Moreover, the Commission questioned the application of the revenue rule to the enforcement of tax laws of States which grant reciprocity to American tax laws, i.e., which allow their courts to enforce tax claims of the United States based on American tax laws. When contemplating the filing of the action, the European Commission asked the authors of this paper in 2001 for a comparative assessment of the laws of some Member States with rules similar to the American revenue rule. The cigarette smuggling litigation is now approaching its end. Invoking the revenue rule, the Court of Appeals for the Second Circuit has dismissed the claim of the European Community, 3 and the settlement negotiations 4 indicate that an appeal to the U.S. Supreme Court is unlikely. Regarding the end of the case as a good opportunity to take a closer look at the law of other countries, we have decided to make the legal opinion prepared for the European Commission accessible to the public. It addresses the following questions raised by the Commission: 1 18 U.S.C. 1961-1968. 2 Agreement between the European Community and the United States of America on Customs Cooperation and Mutual Assistance in Customs Matters, O.J.E.C. 1997 L 222/17. 3 The European Community v. RJR Nabisco and others, 355 F3d 123 (2d Cir. 2004); see DUTTA A., Keine zivilrechtliche Durchsetzung ausländischer Zölle und Steuern durch US-amerikanische Gerichte, in: IPRax 2004, 446. 4 EU Appears Ready to Approve Settlement with Philip Morris, in: Wall Street Journal Europe, 9 July 2004, p. 2. Yearbook of Private International Law, Volume 6 (2004) 3

Jürgen Basedow / Jan von Hein / Dorothee Janzen / Hans-Jürgen Puttfarken - Do the laws of the Member States prohibit courts from enforcing foreign tax judgments? - Do the laws of the Member States allow courts to refuse to enforce foreign tax judgments, i.e., are courts granted discretion in this respect? - Are there broad rules in the laws of the Member States providing that the courts must not/need not enforce foreign tax or other revenue laws? - Are there even broader rules in the laws of the Member States according to which courts must not apply or may refuse to apply foreign tax or other revenue laws? - Outside the specific context of revenue laws, what is the current State of the law or legal discussion in the Member States concerning the existence of a frequently cited general rule that courts must not, should not, or need not apply or recognize a rule of public law of another State? Are distinctions made as to whether the foreign legal rule directly controls the suit or concerns only an incidental/preliminary question, or whether the claim made arises from private or public law? - To the extent that restrictive answers have traditionally been given to the above questions (i.e., in the sense of refusing to enforce foreign judgments, etc.), have such answers been questioned or reversed in more recent legal thinking, for example, on constitutional grounds such as the right to an effective remedy (Justizgewährungsanspruch/Déni de justice) or for the purpose of intensifying international relations? The following survey is limited to the laws of the United Kingdom, Germany, France, and Italy. The systematic approach of the legal systems differs from country to country, as does the amount of materials available. Therefore, the above questions will be answered individually or in conjunction with others, depending on the characteristics of the national legal system. This paper reflects the state of the law at the time it was finalized in 2001; no major changes have taken place since. 4 Yearbook of Private International Law, Volume 6 (2004)

Foreign Revenue Claims in European Courts II. United Kingdom A. Chronological Survey of Cases a) Holman v. Johnson As in the United States, the revenue rule in English law is traced back to the famous dictum of Lord Mansfield in Holman v. Johnson that no country ever takes notice of the revenue laws of another. 5 The facts of the case were as follows: The plaintiff was resident at and an inhabitant of Dunkirk, France. There he and his partner sold and delivered a quantity of tea ordered by the defendant, knowing that the latter intended to smuggle it into England. The plaintiff and his partner did not, however, participate in the smuggling scheme itself. When the defendant who had since decamped to England failed to pay for the tea, the plaintiff brought an action in England. Discussing whether the contract was void on grounds of immorality or illegality, Lord Mansfield gave short shrift to the notion of immorality in the present case: An immoral contract it certainly is not; for the revenue laws themselves, as well as the offences against them, are all positivi juris. 6 Neither did he regard the contract as illegal, [f]or no country ever takes notice of the revenue laws of another. [ ] This is an action brought merely for goods sold and delivered at Dunkirk. Where then, or in what respect is the plaintiff guilty of any crime? Is there any law of England transgressed by a person making a complete sale of a parcel of goods at Dunkirk, and giving credit for them? The contract is complete, and nothing is left to be done. 7 Lord Mansfield did not fail to note, however, that the outcome of the case would have been different if the plaintiff had not confined himself to the role of a neutral salesman, but had instead helped the smugglers, or if he had in any other way actively participated in their scheme: If the defendant had bespoke the tea at Dunkirk to be sent to England at a certain price; and the plaintiff had undertaken to send it into England, or had had any concern in the running it into England, he would have been an offender against the laws of this country. 5 Holman v. Johnson, 1 Cowp. 341 = 98 Eng. Rep. 1120 (1775) (reprinted in: LOWENFELD A., Conflict of Laws: Federal, State, and International Perspectives, New York/Oakland/Albany 1986, 879-881, which is quoted here). There are a few earlier cases, but these are considered as not giv[ing] much help : Government of India v. Taylor, [1955] A.C. 491, 504 (H.L.) with further references, per Viscount Simonds. 6 Holman v. Johnson (previous note), 880. 7 Holman v. Johnson (supra n. 5), 880. Yearbook of Private International Law, Volume 6 (2004) 5

Jürgen Basedow / Jan von Hein / Dorothee Janzen / Hans-Jürgen Puttfarken b) Municipal Council of Sydney v. Bull Skipping other eighteenth and nineteenth century decisions, 8 we come to the first twentieth century judgment, Municipal Council of Sydney v. Bull, 9 which involved the following set of facts: An Act of the Legislature of New South Wales, Australia, authorized the Municipal Council of Sydney to carry out improvements in a certain street in that city and imposed on the property owners within the improvement area the liability to contribute toward the costs. Under circumstances specified in the statute, the Council was empowered to recover the amounts due by action. The Council sued a property owner in England to recover the amount owed as his contribution. Grantham J. refused to entertain the action: Some limit must be placed upon the available means of enforcing the sumptuary laws enacted by foreign States for their own municipal purposes. But what restriction is to be imposed on such legislation if this claim could be put in suit in this country? It is true that the contribution which the Municipal Council of Sydney seeks to levy upon the defendant is a contribution in money, but it might be exacted in another form; the Colonial Legislature might have enacted that of those persons whose property had been improved one should plant trees, another should lay drains [ ]. Could the persons who omitted to perform these statutory obligations be sued in this country? Certainly not. And the mere fact that in New South Wales the contribution is a money contribution enforceable by action as well as by distress makes no difference. The action is in the nature of an action for a penalty or to recover a tax; it is analogous to an action brought in one country to enforce the revenue laws of another. In such cases it has always been held that an action will not lie outside the confines of the last-mentioned State. 10 c) King of the Hellenes v. Brostrom and others In this case, 11 which involved allegedly illegal exports from Greece to the United Kingdom, the Greek government raised a claim to proceeds of goods (sultanas and currants) alleged to have been exported from Greece to Liverpool in contravention 8 On those decisions, see Government of India v. Taylor (supra n. 5), 504 et seq., with further references. 9 Municipal Council of Sydney v. Bull, [1909] 1 K.B. 7. 10 Municipal Council of Sydney v. Bull (supra n. 9), 12. 194. 11 King of the Hellenes v. Brostrom, [1923] 16 Lloyd s Rep. 167 et seq, 174, 190-6 Yearbook of Private International Law, Volume 6 (2004)

Foreign Revenue Claims in European Courts of Greek government decrees. In the judgment of Rowlatt J., the pertinent decrees did not confer on the Greek government a right of property in the goods. 12 However, Rowlatt J. did not refrain from elaborating obiter on how the case would have to be decided if the decrees did have such an effect: It simply means that the government are given a lien over a certain levy on this property, and the question again arises whether then in the Courts of this country a foreign government can come and say: We ask that a lien given by the laws of our own country shall be enforced against goods which we now find are in this country. It is perfectly elementary that a foreign government cannot come here nor will the courts of other countries allow our government to go there and sue a person found in that jurisdiction for taxes levied and which he is declared to be liable to by the country to which he belongs; and if you cannot do it against a person I can see no reason at all why such process should be allowed against goods. It seems to me to be a simple case of enforcing in the directest possible way the revenue provisions of a foreign State. 13 d) In re Visser, Queen of Holland v. Drukker In this case, the Queen of Holland alleged that she was a creditor of the estate of the deceased David Visser, who died in Amsterdam in December 1926 as a Dutch subject domiciled in Holland. The defendant Drukker was the executor of Visser s will. The estate included personal property in England. The Queen asked the English court to hand down a declaratory judgment that the estate was liable for succession duties levied pursuant to Dutch law. 14 Tomlin J. refused to entertain the action: My own opinion is that there is a well-recognized rule, which has been enforced for at least 200 years or thereabouts, under which these courts will not collect the taxes of foreign States for the benefit of the sovereigns of those foreign States; and this is one of those actions which these courts will not entertain. 15 He expressly followed the judgment in Sydney v. Bull, 16 rejecting the argument by the defendant s attorneys that this case should be distinguished because the 12 King of the Hellenes v. Brostrom (previous note), 193. 13 King of the Hellenes v. Brostrom (supra n. 11), 193. 14 In re Visser, Queen of Holland v. Drukker, [1928] 1 Ch. 877. 15 In re Visser (previous note) 884, per Tomlin J. 16 Supra at A.b. Yearbook of Private International Law, Volume 6 (2004) 7