In a case of a Slovak company protesting against being forced to use non-free software to file taxes, a court has failed to rule on the substance of the case.
EURA vs. Slovak Tax Authorities
Slovak textile importer EURA Slovakia, s.r.o. is facing EUR 5600 in fines because it did not buy and use the Microsoft Windows operating system for submitting electronic tax reports. Slovak tax administration gave EURA only two options: either it buys and use Microsoft Windows or face the fines. This is also how we could briefly summarize the decision of Slovak tax administration from May 2012.
Background of the case
Since January 2010 Slovakia has a law requiring every monthly tax report concerning value added tax (VAT) to be submitted by electronic means and signed by a certified electronic signature. As many Slovak companies still don't have certified electronic signatures, the law enables an exception under which the company can enter into an agreement with the tax office and then use a special web-based application called “eDane”.
However, the eDane application works only under the Windows operating system together with the Internet Explorer web browser. None of the other operating systems can run this application. As EURA Slovakia uses a competing operating system in the entire company and despite help from its IT staff, it was impossible for it to send anything electronically. When the company notified the tax administration about this problem, nothing happened. The company thus decided to fulfill its statutory obligations at least by submitting the tax reports in classical paper form. The tax office however, consider this to be contrary to the law.
Imposing the fines
When the company pointed to the fact that it could not electronically fulfill its obligation, it received 12 fines from the Slovak tax administration. "We were really trying to respect the law, but in Slovakia there is no state-certified application that would support the electronic signature on the other operating system than Windows. We therefore had to enter into the agreement with the tax office and try to use the web-based application. Unfortunately, neither us, nor our technicians with years of experience, were able to run it," says the director of EURA Slovakia, Mr. František Slivka.
For submitting the tax report in the paper form, the company was fined several times, and so far wasn't successful with a single appeal before various administrative bodies. It has therefore decided to appeal to the court. "Thousands of Slovak companies resigned on this behavior of the Slovak tax administration and simply bought a license to the Windows operating system only to be able to submit this monthly electronic reports. We believe that it is unfair. The administration thus directly forces Slovak companies to buy Windows, even though they do not need it for other purposes," says Slivka.
"If the state requires the electronic form as a only way of fulfilling the statutory obligation, it has to offer the multi-platform solution, which is available to everybody. Otherwise, the state in advance precludes its citizens to behave in accordance with the law," comments Martin Husovec, member of the FSFE Legal, who assists the Slovak company in filling the case before the court. This problem is not unique for Slovakia.
Many companies in the other member states of the European Union have to deal with the very same problem. However, the Slovak case at hand is one of the most blatant and striking examples of the injustice in society caused by ignorance of the Open Standards in the digital world. It shows that the negligence of state in the field of open standards not only leads to the social injustice, but also hurts the competition, increases costs for the small companies and bureaucracy.
In its effect it also conflicts with European rules and recommendations, like the European Interoperability Framework, which clearly states that "Member States setting up ICT-supported national public services need to be more aware of the risk of creating new electronic barriers if they opt for solutions that are not interoperable. Such so-called ebarriers fragment the internal market and hinder it from functioning properly. Member States and the Commission should step up their efforts to avoid this."
These new electronic barriers "digitally" handcuff the citizens and thus prevent them from behaving in accordance with the law. FSFE calls for a change in this practice.
FSFE toghether with experts from European Information Society Institute (EISi) assisted EURA Slovakia in its appeal before the Regional Court in Banská Bystrica. Our basic arguments were that this behaviour of the state is in breach of local legislation on open standards, competition laws, principle of rule of law and basic right to engage in entrepreneurial activity. In the submission, we also argue that state acted contrary to art. 3(7) of Electronic Signatures Directive. For this reason we also request that Slovak court makes preliminary reference to the Court of Justice of the European Union on the issue of whether it is compatible with art. 3(7) of Electronic Signatures Directive to restrict the use of electronic signatures in public sector to only one vendor.
Article 3 - Market access (7) Member States may make the use of electronic signatures in the public sector subject to possible additional requirements. Such requirements shall be objective, transparent, proportionate and non-discriminatory and shall relate only to the specific characteristics of the application concerned. Such requirements may not constitute an obstacle to cross-border services for citizens.
Soon after the filing of the case, the Court attempted to procedurally divide one case into 11 different and parallel cases. As this would pose extraordinary obstacles for litigation, we helped EURA Slovakia to file a compliant before the Constitutional Court of the Slovak republic. After its decision, the case will continue before the Regional Court in Banská Bystrica.
(Partially) successful appeal to the regional court
The Regional court in Banská Bystrica decided EURA's case in April 2013. Although the decision is in favor of EURA, it cannot be considered a victory for Open Standards. Reasoning explicitly states that – due to procedural rules applicable in Slovakia – the Court is not competent to undertake arguments offered by FSFE and EISi in the appeal.
According to the Court's decision, arguments offered by EURA could not be reviewed because they were not presented in the previous administrative phase of the proceedings. ”Court is not a continuation of administrative process. Court can take plaintiff's objections into consideration only to such extent, in which they were raised already in the legal remedies against the decision of first-instance administrative body.” The main argument is that Court was not competent to review such objections because they were introduced in the later stage of proceedings - before the Court - and not earlier, before the administrative body (the Tax Administration).
Martin Husovec, one of FSFE's co-operators and EISi's leading lawyer in this campaign thinks otherwise. “We cannot agree with the decision of the Regional court in Banská Bystrica. Court was also supposed to deal with [our] core arguments about unlawfulness of the fine. There is no procedural reason for Court not to do this. This verdict should be appealed.”
On the positive note, the Court acknowledged it was unlawful to impose 12 different fines for the same act. All 12 fines were annulled and the case is supposed to go back before the administrative body – the Tax Authorities – again. Even though Court rejected substantial objections of EURA's appeal, it offered a hint about how this case could unfold next. “If the administrative body imposes [only] single fine in subsequent proceedings and such decision will be challenged in the court again, the court will be able to reevaluate this matter”. But this time, Court will be obliged to review EURA's arguments.
New proceedings before the Tax Authorities
With regards to the Court's decision, new proceedings began in the EURA matter before the Tax Authorities. Not surprisingly, the Tax Authorities did what was suggested in Court's decision and reduced previously imposed fines. Nonetheless, they still refused to recognize EURA's main arguments according to which these fines were illegal and should have never been imposed.
So the roller-coaster starts once again. EURA has appealed against the new administrative decision. However, due to some technical changes in Slovak legislation, this appeal was dismissed. According to new tax regulations, EURA can file an appeal only in electronic form. EURA was not aware of this obligation, mainly because the change in the legislation occurred during the period for filing appeal. This change was also not reflected in the decision of Tax Authority. Advice of remedies, contained in the administrative decision, did not notice EURA of the fact, that appeal is possible only in electronic form and that paper form is no longer available. Despite the fact, the second-instance authority dismissed EURA's appeal anyway.
At the current time, EISi's legal team is doing everything possible to use every legal remedy available in order to avert the present menace of Tax Authority's decision.