The relationship between Double Tax Conventions, European Tax Law and domestic legal order: the case of Spain

• Author: Josè Miguel Martin Rodriguez
• Pages: 205-222

Studi Tributari Europei 1/2017

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205

The relationship between Double Tax Conventions, European

Tax Law and domestic legal order: the case of Spain*

José Miguel Martín Rodríguez1

Table of Contents:

1. Introduction 2. DTCs and the Spanish legal system 3. European Union law

in the Spanish tax system 4. Interpretation and application problems

between the EU law and the DTC in the Spanish legal system 5. Concluding

remarks

1. Introduction

In the Spanish Constitution there are no specific references neither to Double

Tax Conventions (hereinafter DTCs) nor to European Union law (hereinafter

EU law). However, article 96 states that “all validly concluded international

treaties, once officially published in Spain, shall form part of the internal legal

order”. Given that, once in the internal legal order, their provisions “may only

be repealed, amended or suspended in the manner provided in the treaties

themselves or in accordance with the general rules of international law2”.

This way, we can admit that both DTCs and EU law occupy, in practice, a

position over the Spanish law in our legal system. Although, we have no

* How to quote this article: J.M. MARTIN RODRIGUEZ, The relationship between Double Tax

Conventions, European Tax Law and domestic legal order: the case of Spain, in Studi Tributari

Europei, n. 1/2017 (ste.unibo.it), pp 205-222, DOI: 10.6092/issn.2036-3583/8776.

1 José M iguel Martín Rodríguez, Assistant Professor of Tax Law, Pablo de Olavide University,

Spain, jmmarrod1@upo.es.

2 Spanish Constitution, art. 96.

“A lot of people think international relations is like a

game of chess. But it's not a game of chess, where people

sit quietly, thinking out their strategy, taking their time

between moves. It's more like a game of billiards, with a

bunch of balls clustered together”

Madeleine Albright – United States Secretary of State

(1997-2001)

Studi Tributari Europei 1/2017

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initial references, clarifying the hierarchy between DTCs and EU law within

the Spanish legal system is the main goal of this paper.

The absence of regulation and the very few judgments in our country

regarding this relationship might be an obstacle at first glance. However, in

order to achieve this objective we will focus first on the independent

relationship between these elements (DTCs and EU law) and the Spanish

legal system. After this analysis is done we will be in a position to explain this

complex connection.

The paper is divided in four main parts; the first two parts consist in a

separate study on the position of both DTCs and EU law inside the Spanish

law.

The third part will focus on the relation between DTCs and EU law. Lastly, in

the final conclusions we will try to explain how they fit in our system and how

the potential conflicts should be solved.

2. DTCs and the Spanish legal system

Becoming a member of the OECD and the signing of many DTCs was a

landmark that demonstrated the incorporation of Spain to the international

scenario after the stabilization plan of 19593. Until now, Spain has signed

more than 100 DTCs with countries all around the world, such as all the EU

members, most South American countries and many Africans too4.

2.1 The evolution of DTCs in Spain

Spain is a member of the OECD since its creation in 1961. During the

dictatorship (until 1975), given the inexistence of democracy, the

participation in the OECD was limited to the reception of ideas of

rationalization and modernization. Nowadays, our participation in this

organisation is much more active.

One of the most important documents produced within the OECD, beginning

in 1963, is the Model Convention (hereinafter MC) to avoid the double

taxation in the field of taxation on personal income and on capital. This first

version of the MC was soon transformed into the MC to avoid double taxation

3 Galán Ruíz, J. & Rodríguez Ondarza, J. A. Convenios de doble imposición internacional.

Análisis del caso español, Instituto de Estudios Fiscales, 19/2010, p. 5.

4 List of DTCs signed by Spain (last visit 03/12/2016).