Divergent approaches in Latin America and Europe
By María Emilia Mamberti*
Tax authorities around the world face challenges to effectively combat tax abuse, as large taxpayers can resort to highly complex accounting and legal arrangements. This year’s decision by the European Court of Human Rights in the «Ferrieri» v. Italy case can amplify those challenges, and existing information gaps between large taxpayers and tax authorities. Restricting tax authorities’ capacities can, in turn, impact States’ ability to adequately finance their human rights commitments, including those related to climate and gender justice.
In the case, two Italian taxpayers challenged the State’s power to request banking information in the context of an investigation by the tax authority, arguing that their fundamental rights were affected. The court agreed and found that taxpayers’ right to privacy had been violated. The decision was largely based on two arguments: that the tax authority could authorize requests for banking information with too much discretion (allegedly, without giving reasons); and that taxpayers did not have sufficient remedy available to challenge the decision to request information.
The Court rejected the reasons given by the State, based on existing rules setting the conditions under which the authority can request information from a bank. These rules authorize requests with regards to taxpayers who are major evaders, do not have accounting records, issue invoices for non-existent operations, or have a financial capacity clearly incompatible with their declared income. The rules also set out the requirements for authorizing the request, the reasons that officers must provide, including a cost-benefit analysis, and the hierarchy of officials who can authorize it. The State also explained that while requesting information was a preparatory act that could not be judicially questioned as such, it could be challenged later if it led to a tax determination.
The court found that all these safeguards were insufficient, and ruled that to ensure taxpayers’ privacy it was necessary to further limit discretion, and to provide an independent remedy – such as judicial review– to assess requests for information even if they do not result in any penalty or tax determination.
Critiques of the decision argued that it can further complicate the position of tax authorities before tax abuse. Indeed, if a request for information can give rise to a judicial challenge – often long and costly –, the effectiveness of the authority’s action and the very objectives of the request can be compromised.
Information, including banking information, is central for performing tax authorities’ functions, and requiring a remedy such as judicial review of a mere request creates an additional barrier to others that authorities already face. Data published by CIAT, for example, shows that while States report having access to financial information, some still face challenges such as rigid bank secrecy rules, complex and time-consuming procedures, or access to partial or late information. These restrictions on oversight capacity reduce the ability of tax systems to finance public services and other human rights commitments, and to achieve other possible goals of tax policies such as reducing inequalities.
The Ferrieri decision is especially problematic given its potential expansive effects. First, the decision itself requires the State to take general measures and to find a «systematic» solution. Moreover, although the case dealt with a domestic situation, the court’s interpretation opens the door to its expansion to the international level, where exchange of information (notably through automatic exchange) has advanced significantly. Indeed, some authors quickly argued that information could not be exchanged internationally in violation of the right to privacy as interpreted in the Italian case.
Since many countries would consider the request for information to be a preparatory act, a preliminary analysis of the topic indicates that few countries offer a comprehensive remedy against a request, as required by the judgment. One of the clearest examples comes from Luxembourg. Interestingly, Luxembourg was also sued over this issue, in a case decided by the Court of Justice of the European Union. In the case, the Advocate General before the Court, Juliane Kokott, argued in favor of broad judicial review of requests of information. Other countries that appear to facilitate some form of judicial review include Switzerland, Singapore, and Bermuda.
More generally, Juliane Kokott has argued in an article published with Pasquale Pistone and Robin Miller that the fundamental rights of taxpayers are human rights, which must be protected even when there is a collective interest in tax collection. On the issue of «Ferrieri», Pistone had also previously argued that access to judicial review should be expanded with respect to the exchange of information.
Indeed, it is not the first time that the language of fundamental rights has been used to take cases to European courts and invalidate measures that allow state authorities in Europe to target tax abuse and related activities such as money laundering (one of the most notorious cases being on public access to beneficial ownership registers). The fact that the plaintiffs in the «Ferrieri» case appeared directly before the European court without first attempting a solution before their own national courts indicates a perception that the expansive interpretation of privacy against the powers of the tax authority will be more successful at the supra-national level.
However, the use of fundamental rights or human rights to protect large taxpayers is a typically European phenomenon. If we look at what happens in the Inter-American Human Rights System, for example, we find that corporations (a significant group of taxpayers) are not human rights holders. Overall, the Inter-American System decides cases of people in a position of disadvantage, and not of advantage, before the State.
The recent Resolution 2/2026 on fiscal policies and human rights of the Inter-American Commission on Human Rights is an excellent example of this approach. It recognizes, for instance, that the protection of personal data must be compatible with the right of access to information and the principle of transparency, and that “tax secrecy must be exceptional, necessary, and proportionate, must not be used to conceal tax avoidance or evasion practices, beneficiaries of preferential regimes or tax benefits, ownership or control structures relevant to tax audits, or transactions with high-risk jurisdictions, and must take into account that legal persons are not holders of human rights.»
At the UN’s universal human rights system, the approach is similar to that of the Inter-American System. UN human rights treaty bodies have recognized, for example, that in some States financial secrecy drives a race to the bottom, «…depriving other countries of significant resources for public services on health, education, housing, and for social security and environmental policies.» This conflicts with the duty of States to mobilize the maximum available resources to ensure economic, social, cultural and environmental rights.
At their core, what these two systems recognize is that civil rights cannot automatically trump economic, social, cultural, and environmental rights. Including an analysis of the socio-economic implications of decisions such as those of «Ferrieri» is especially important in a context marked by environmental, care, and inequality crises. It is crucial not to see taxes as a merely technical instrument or a power of the State that limits civil rights, but as an essential tool that States have to finance social rights in sustainable, equitable and transparent manners.
Not abusing the language of human rights becomes a priority in this context, as they are one of the few normative frameworks that place justice, solidarity and cooperation at the center of fiscal decision-making. The Framework Convention on Tax Cooperation being negotiated at the United Nations, where there is a commitment to align tax cooperation with international human rights law, provides an opportunity to advance interpretations along these lines, based on the UN’s solid track record in human rights and taxation.
