European Commission v Kingdom of Spain.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:55
• Docket Number: C-788/19
• Date: 27 January 2022
• Celex Number: 62019CJ0788
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

27 January 2022 (*)

(Failure of a Member State to fulfil obligations – Article 258 TFEU – Free movement of capital – Obligation to provide information concerning assets or rights held in other Member States of the European Union or the European Economic Area (EEA) – Failure to comply with that obligation – Limitation – Penalties)

In Case C‑788/19,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 23 October 2019,

European Commission, represented initially by C. Perrin, N. Gossement and M. Jáuregui Gómez, acting as Agents, and subsequently by C. Perrin and N. Gossement, acting as Agents,

applicant,

v

Kingdom of Spain, represented by L. Aguilera Ruiz and S. Jiménez García, acting as Agents,

defendant,

THE COURT (First Chamber),

composed of L. Bay Larsen, Vice-President of the Court, acting as President of the First Chamber, J.-C. Bonichot (Rapporteur) and M. Safjan, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 15 July 2021,

gives the following

Judgment

1 By its application, the European Commission requests the Court to declare that:

– by providing that failure to comply with the obligation to provide information in respect of overseas assets and rights or the late submission of ‘Form 720’ results in the classification of those assets as ‘unjustified capital gains’ without the possibility of pleading expiry of the limitation period;

– by automatically imposing a proportional fine of 150% in the event of failure to fulfil the obligation to provide information in respect of overseas assets and rights or late submission of ‘Form 720’; and

– by imposing, in the event of failure to comply with the obligation to provide information concerning overseas assets and rights or of late submission of ‘Form 720’, flat-rate fines which are more severe than the penalties laid down by the general rules on penalties for similar infringements,

the Kingdom of Spain has failed to fulfil its obligations under Articles 21, 45, 49, 56 and 63 TFEU and Articles 28, 31, 36 and 40 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’).

Legal context

2 The eighteenth additional provision of Ley 58/2003 General Tributaria (General Tax Law 58/2003), of 17 December 2003, as amended by Law 7/2012 (‘the General Tax Law’), provides:

‘1. In accordance with Articles 29 and 93 of the present law, taxable persons are required to provide the tax authorities, under the conditions laid down by regulation, with the following information:

(a) Information relating to accounts situated abroad, opened with institutions which carry out banking or credit activities, of which the persons concerned are holders or beneficiaries, or in respect of which they hold, in any form, an authorisation or a right of disposal.

(b) Information relating to all securities, assets, stocks or rights representing the share capital, equity or assets of any type of entity, or concerning the transfer of equity to third parties, of which the persons concerned are holders and which are deposited or situated abroad, as well as information relating to the life or invalidity insurance policies of which they are the holders and to life or temporary annuities of which they are beneficiaries following a transfer of cash capital, or even information on movable or immovable property acquired from entities established abroad.

(c) Information relating to immovable property and rights in immovable property situated abroad which they own.

…

2. Rules on offences and penalties.

It is a tax offence not to submit within the prescribed period the informative declarations provided for in this additional provision or to include incomplete, incorrect or false information.

It is also a tax offence to submit such declarations by means other than electronically, by computer and telematically where it is stipulated that such methods be used.

The above offences are very serious and shall be penalised in accordance with the following rules:

(a) Failure to comply with the obligation to declare accounts held with credit institutions located abroad shall be liable to a flat-rate fine of EUR 5 000 for each data item or set of data relating to the same account which should have been included in the declaration, or for each data item which is incomplete, incorrect or false, the minimum fine shall be set at EUR 10 000.

The fine is EUR 100 for each data item or set of data relating to the same account, with a minimum fine of EUR 1 500, where the declaration has been submitted out of time, without prior request from the tax authorities. The same penalty shall apply where the declaration is submitted by means other than electronically, by computer and telematically, where it is stipulated that such methods be used.

(b) Failure to comply with the obligation to declare securities, assets, stocks, rights, insurance and annuities deposited, managed or obtained abroad shall be liable to a flat-rate fine of EUR 5 000 for each data item or set of data relating to each individual asset, depending on the category in question, which should have been included in the declaration, or for each data item which is incomplete, incorrect or false, the minimum fine shall be EUR 10 000.

The fine is EUR 100 for each data item or set of data relating to each individual asset, depending on the category in question, with a minimum fine of EUR 1 500, where the declaration has been submitted out of time, without prior request from the tax authorities. The same penalty shall apply where the declaration is submitted by means other than electronically, by computer and telematically, where it is stipulated that such methods be used.

(c) Failure to comply with the obligation to declare immovable property and rights in immovable property situated abroad shall be liable to a flat-rate fine of EUR 5 000 for each data item or set of data relating to the same immovable property or to the same right in immovable property which should have been included in the declaration, or for each data item which is incomplete, incorrect or false, the minimum fine shall be set at EUR 10 000.

The fine is EUR 100 for each data item or set of data relating to the same immovable property or the same right in immovable property, with a minimum fine of EUR 1 500, where the declaration has been submitted out of time, without prior request from the tax authorities. The same penalty shall apply where the declaration is submitted by means other than electronically, by computer and telematically, where it is stipulated that such methods be used.

Offences and penalties governed by this additional provision shall not be in addition to those provided for in Articles 198 and 199 of this law.

3. The laws governing each tax may provide for specific consequences in the event of failure to comply with the obligation to provide information laid down in this additional provision.’

3 Article 39 of Ley 35/2006 del Impuesto sobre la Renta de las Personas Físicas y de Modificación Parcial de las Leyes de los Impuestos sobre Sociedades, sobre la Renta de no Residentes y sobre el Patrimonio (Law 35/2006 on personal income tax and amending in part the laws on the taxation of corporations, the income of non-residents and wealth), of 28 November 2006, as amended by Law 7/2012 (‘the Law on personal income tax’), entitled ‘Unjustified capital gains’, provides:

‘1. Assets or rights the possession, declaration or acquisition of which does not correspond to income or capital declared by the taxpayer, and the entry of non-existent debts in a declaration in respect of this tax or wealth tax, or their entry in official books or registers shall be regarded as unjustified capital gains.

Unjustified capital gains shall be included in the general taxable amount for the tax period in which they were discovered, unless the taxpayer demonstrates that he or she acquired ownership of the rights or assets in question during a prescribed period.

2. In any event, the possession, declaration or acquisition of assets or rights for which the obligation to provide information referred to in the eighteenth additional provision of the [General Tax Law] has not been complied with within the prescribed period shall be treated as unjustified capital gains and included in the general taxable amount for the earliest tax year which has not yet become time-barred and may still be regularised.

However, the provisions of this paragraph shall not apply if the taxpayer provides proof that the assets or rights held by him or her were acquired by means of declared income or income obtained in tax years for which he or she was not liable to that tax.’

4 Article 121 of Ley 27/2014 del Impuesto sobre Sociedades (Law 27/2014 on corporate tax), of 27 November 2014 (‘the Law on corporate tax’), entitled ‘Unaccounted for or undeclared assets and rights: presumed income’, provides:

‘1. Assets held by the taxpayer which are not entered in his or her accounts are presumed to have been acquired by means of undeclared income.

That presumption also exists in the case of partial concealment of the acquisition value.

2. Assets not entered in the accounts are presumed to belong to the taxpayer where he or she is in possession of them.

3. The amount of undeclared income is presumed to be equal to the acquisition value of the assets or rights not entered in the accounts, minus the amount of actual debts incurred to finance that acquisition, which are also not entered in the accounts. The net amount may not be negative under any circumstances.

The amount of the acquisition value shall be checked against the relevant supporting documents or, if this is not possible, against the valuation rules laid down in the [General Tax Law].

4. There is a presumption of undeclared income...