Summary:

I.

From 1997 to 30 June 2001, the applicant was the general manager of the company KH in Greece. After Greek authorities had carried out a tax audit, they claimed the recovery of back taxes of approximately EUR 35 million. The company, which had been renamed in the meantime, went bankrupt. On 28 January 2013, the applicant received a request for payment via the Cologne South Tax Office stating that he owed approximately EUR 1 million in value added tax (VAT) plus interest for the year 2000. The EU Mutual Assistance Recovery Directive was stated as the legal basis. Enclosed with the letter was a uniform instrument permitting enforcement dated January 2013. The applicant filed an application with the Cologne-South Tax Office asking for suspension of the recovery measures and the rejection of administrative assistance pursuant to § 14.2 of the Act on EU Recovery (hereinafter: the Act) on the grounds of limitation or unfairness pursuant to § 14.1 of the Act or alternatively, for a preliminary stay of enforcement pursuant to § 258 of the Fiscal Code. He claims to have first learned of his alleged liability as a result of the uniform instrument permitting enforcement. After the Tax Office had requested information from the Greek authorities concerning the applicant’s submissions, it informed the applicant in January 2017 that it had received the response that, under Greek law, he was jointly and severally liable for the value added tax claims against KH for the year 2000. The company should have informed the complainant. According to tax authority records, the applicant must have known of the claims given that he had appointed Mr K., a KH employee, as his tax representative from 8 April 2002 and that, on 27 October 2003, the competent tax office in Athens had sent the notification of imminent enforcement to the complainant at the address "M. 21 - C.", the last residential address of which the applicant had informed the tax authorities. The applicant did not lodged an appeal with the Greek authorities. On 5 April 2018, the Euskirchen Tax Office, into whose geographical area of competence the complainant had moved, issued an order to seize and confiscate the contents of his bank accounts, deposits and safe deposit boxes. The applicant filed an application for a preliminary injunction pursuant to § 114 of the Code of Finance Court Procedure with the Finance Court claiming a violation of § 14.2 in conjunction with § 14.1 of the Act. On 24 May 2018, the Finance Court rejected this application as unfounded. Its summary review did not reveal any claim to or grounds for a preliminary injunction. In the constitutional complaint proceedings, the applicant challenged the Finance Court’s refusal to grant injunctive relief. He claimed a violation of his right to effective legal protection and his right to be heard.

II.

The Federal Constitutional Court did not admit the constitutional complaint for decision.

The order is based on the following considerations:

To the extent that the applicant claims a violation of effective legal protection pursuant to Article 19.4 of the Basic Law, the constitutional complaint is unfounded. The Finance Court complied with its audit duties under the Act. According to the division of competences between the Member States involved in an international recovery request, the claim to be recovered, the original foreign instrument permitting enforcement and the uniform instrument permitting enforcement are, in principle, not reviewed as to their lawfulness in the requested Member State. Appeals or complaints must be lodged with the competent body of the requesting Member State in accordance with its law since the courts of the requested Member State should not, as a matter of principle, be required to deal either with the establishment of facts or with foreign tax legislation, which may be complex. In the case of disputes relating to enforcement measures taken by the requested Member State or to the validity of notification by a competent authority of the requested Member State, appeals or complaints must be lodged with the competent authority or court of the requested Member State in accordance with its law. This division of competences does not allow the tax office as the requested authority and, consequently, the tax court, to verify the substantive accuracy of the claim to be recovered and the enforceability of the enforcement order. However, there is an exception to this principle where the claim to be recovered is absolutely incompatible with German legal concepts (so-called ordre public reservation). Ordre public is violated if the enforcement order conflicts with fundamental principles of the German legal system, with the result that applying foreign law would have an unacceptable outcome according to German notions of justice. The finding of the Finance Court stating that there had not been a violation of ordre public is unobjectionable under constitutional law – even in view of the fact that Greek law does not provide for a separate notification of liability for the manager of a company, but rather holds them directly liable for the company’s tax debts. In particular, the Finance Court was allowed to refer to the complainant's existing legal remedies against tax recovery in Greece. The Finance Court was allowed to decide on the basis of the files, the substantiated submission of the parties involved and on the basis of evidence available without further investigation of the facts. The principle of mutual trust between Member States of the European Union with regard to compliance with the principles of the rule of law and the protection of human rights is called into doubt only if sufficient indications of a violation of fundamental rights minimum standards are presented. The applicant did not present such indications. The Finance Court did not ignore the principle that the authority requested to recover a claim may be required to refuse administrative assistance where the person concerned is not aware of the claim. The Finance Court did not assume that the applicant was unaware of the claim; it was not obliged to believe the applicant’s statements, but had to decide on the basis of its own conclusions drawn from the proceedings as a whole. The information provided by the Greek authorities contradicted the statements of the applicant. Although the applicant asserts that the Finance Court should have come to a different conclusion, such considerations are excluded from the Federal Constitutional Court’s review as questions of interpretation and application of statutory law and questions of fact. The review by the Finance Court of the grounds for exclusion of a possible statute of limitations pursuant to §  14.2 of the Act also meets the requirements for effective legal protection pursuant to Article 19.4 of the Basic Law. In this respect, the Finance Court was allowed to rely on the information in the uniform instrument permitting enforcement of 25 January 2013 and the further correspondence between the Cologne-South Tax Office and the Greek authorities. The summary review and the rejection by the Finance Court is also constitutionally unobjectionable. In particular, it must be taken into account that it is incumbent upon the applicant to substantiate the claim to and grounds for a preliminary injunction. The Finance Court also dealt sufficiently with the applicant’s other arguments.