Regarding the Spanish taxman’s infringement of the Double Taxation Convention with the UK, I cite from a letter addressed to me in 2014 by the European Commission Taxation & Customs Union [DG TAXUD]:
“EU Member States are competent to design their own tax systems, what to tax, when to tax and at what rate. However, Member States have to respect their obligations under the Treaty on the Functioning of the EU (TFEU) and they are not allowed to discriminate on the basis of nationality or residence against the nationals of a Member State including their own, or against anyone who exercises the freedoms granted under the TFEU.
Nor can they apply unjustified restrictions on these freedoms. The EU Commission in its capacity of ‘Guardian of the Treaty’ it can request, that Member States apply the latter in a non-discriminatory way.
We plan to contact under the so-called EU-Pilot Initiative the authorities to have some clarification . . . The adequate way to obtain redress is to make use of the legal remedies under national law. National courts can ask the CJUE (Court of Justice of the EU) for a preliminary ruling.”
Assuming, that I’d be a tax grab victim, I’d defend my interests as follows:
I. National Courts
Forget the judiciary! Since it goes against the Ministry of Finance / government, aka ‘sacred cow’, the plaintiff faces arbitrarily delayed action, Spain’s infamous ‘silencio administrativo’.
II. DG TAXUD
A request for the start of the pre-litigation procedure laid down in Article 258 TFEU, i.e. allow Spain to put an end to the infringement of the Double Taxation Convention without bringing an action before the Court of Justice of the EU. My application would be corroborated by the following documentation:
n I n 2007 the CJEU forced Spain to change its rate of discriminatory CGT Capital Gains Tax.
n Sentence no C – 127/12 of the CJEU, EU Commission vs Spain (Discriminatory gift & succession tax between residents & non-residents); (see article by CBNews financial correspondent Bill Blevins, May 25-31, 2012).
n Sentence no C – 591/17 of the CJEU, Austria & The Netherlands vs Germany & Denmark; Germany’s violation of Articles 18 TFEU (Prohibition of any discrimination on grounds of nationality), 34,56, 92 TFEU.
n A copy of an article featured by the German weekly “Der Spiegel“ about billions of euros of fraudulently obtained subsidies from the European Union. A related diagram showed the percentage of the criminal Involvement of Member States: Greece: 7%, Italy: 7.3%, but the serious contender for an entry in the Guinness Book of Records is undoubtedly Joselito Españolito: 58%!
III. Other Means of Redress
Under the conditions of
n Article 263 TFEU proceedings may be brought before the General Court of the
n Article 228 TFEU a complaint may be filed with the European Ombudsman.
In my writ to the EU Commission I would conclude that, subsequent to Spain’s entry in the EEC & EU in 1986 and due to the tainted history of TFEU violations by discriminatorily fiddling taxpayers of other EU Member States, the Kingdom of Spain manifested the pathological symptoms of an habitual, incorrigible criminal.