Reviving the Franco-American Alliance Against Britain

by Julian Ku

OK, it’s not quite 1780 all over again, but the NYT reports that the U.S. and France have joined forces to protest the application of London’s “congestion” pricing scheme to employees of their respective embassies.

The U.S-French position (which is joined by a number of other countries) is buttressed by the Vienna Convention on Diplomatic Relations. I believe the relevant provision is Art. 34, which provides that “[a] diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal. . . ”

London is apparently arguing that the congestion charge is a “[c]harge[] levied for specific services rendered” and therefore an exception to the general rule of immunity. That doesn’t seem all that persuasive to me, but London has lots of incentives to collect. Just over the past four years, the U.S. alone has accrued nearly $2 million in unpaid congestion charges. So expect this to drag on.

http://opiniojuris.org/2007/02/24/reviving-the-franco-american-alliance-against-britain/

One Response

  1. Professor Ku,

    May I note very briefly that Professor McGuinness has posted on this issue before here; the opinions expressed then were very much in agreement with your view.

    It may be noted that the charge is not officially a ‘tax’. Thus, a judge in the English High Court has noted in 2002 that ‘the charge is sometimes referred to in a vernacular or journalistic way as a tax’ (R (City of Westminster) v. Mayor of London [2002] EWHC 2440 (Admin), at [106], per Maurice Kay J). Although the point did not in the event arise in the case, this cautious expression would indicate some reservations as to the use of the term ‘tax’. Also, the statutory basis of the charge speaks of ‘schemes for imposing charges in respect of the keeping or use of motor vehicles on roads in its area’ (see s. 295 of the Greater London Authority Act 1999 here).

    Indeed, it might be said that a ‘tax’ properly so called is usually levied on much less specific activities (if any), such as buying cigarettes.

    But it also might just be argued that Article 34 only seeks to exempt diplomates from taxes that are imposed completely unspecifically, such as income tax. These are justified only by the State’s jurisdiction over the tax-payer, and at a less technical level by the fact that the tax-payer must, as a member of the community served by the State, contribute to the upkeep of the public system. A diplomat is, of course, neither (generally) subject to the host State’s jurisdiction, nor a part of the host State’s society. It may therefore make sense to exempt the diplomat from general taxes. But this is not to say that it would also make sense to give a diplomat free access to something that everyone else would have to pay for.

    (I do not know on which side of this divide VAT would fall, but I seem to recall that diplomats do not have to pay it. A potentially more interesting question might arise under the taxes on alcohol and tobacco, for surely, the provision of such articles is not a ‘specific service[] rendered’ by the host State.)

    This line of argument might speak in favour of a broader construction of the term ‘specific services rendered’ in the let-out clause you mention.

    But I have done no research on this (other than to check if http://www.bailii.org carries any case dealing with this same issue, which it does not), and I do not believe strongly that the approach outlined is correct.

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