CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA

Eric Kemmeren; Alfredo  García Prats; Werner Haslehner; Volker Heydt; Georg Kofler; Michael Lang; João Nogueira; Christiana HJI Panayi; Emmanuel  Raingeard de la Blétière; Confedédération Européene; HEC – University Liège; Alexander Rust; Hogan Lovells

CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA

Eric Kemmeren, Alfredo García Prats, Werner Haslehner, Volker Heydt, Georg Kofler, Michael Lang, João Nogueira, Christiana HJI Panayi, Emmanuel Raingeard de la Blétière, Confedédération Européene, HEC – University Liège, Alexander Rust, Hogan Lovells

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Abstract

This is an Opinion Statement, submitted to the EU institutions in May 2022, of the CFE ECJ Task Force on Commission v. Spain (Case C-788/19) (also cited as the Form 720 case), in which the First Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 27 January 2022. The Court, in its decision, ruled in favour of the action brought by the Commission and did not fully follow the reasoning of Advocate General Saugmandsgaard Øe in his Opinion of 15 July 2021, who proposed only partially accepting the action brought by the Commission.

The Court held that the Kingdom of Spain had failed to fulfil its obligations under article 63 of the Treaty on the Functioning of the European Union (TFEU) (2007) and article 40 of the EEA Agreement (1992) [4.] by imposing disproportionate measures on the failure to duly comply with the obligation to provide information concerning assets and rights located abroad. The Spanish legislation provided for very serious economic consequences, such as the taxation of the value of not duly declared assets and rights as unjustified capital gains with no limitation period. The legislation also provided for a proportional fine of 150% of the tax calculated on amounts corresponding to the value of those assets or those rights, which could be applied concurrently with flat-rate fines. At the same time, such flat-rate fines were much higher than the penalties imposed in respect of similar infringements in a purely national context, which were not capped. Commission v. Spain is an important case, as it addresses a number of relevant issues regarding the limits that the Member States must respect when implementing measures to counteract international tax avoidance and evasion.

Original language	English
Pages (from-to)	304-310
Number of pages	7
Journal	European Taxation
Volume	62
Issue number	7
Publication status	Published - 2022

Keywords

European Tax Law
Disclosure
Exchange of information
Tax shelters
Tax Avoidance
Tax evasion
Free movement of capital

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Kemmeren, E., García Prats, A., Haslehner, W., Heydt, V., Kofler, G., Lang, M., Nogueira, J., Panayi, C. HJI., Raingeard de la Blétière, E., Européene, C., Liège, HEC. . U., Rust, A., & Lovells, H. (2022). CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA. European Taxation, 62(7), 304-310.

Kemmeren, Eric ; García Prats, Alfredo ; Haslehner, Werner et al. / CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA. In: European Taxation. 2022 ; Vol. 62, No. 7. pp. 304-310.

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title = "CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA",

abstract = "This is an Opinion Statement, submitted to the EU institutions in May 2022, of the CFE ECJ Task Force on Commission v. Spain (Case C-788/19) (also cited as the Form 720 case), in which the First Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 27 January 2022. The Court, in its decision, ruled in favour of the action brought by the Commission and did not fully follow the reasoning of Advocate General Saugmandsgaard {\O}e in his Opinion of 15 July 2021, who proposed only partially accepting the action brought by the Commission. The Court held that the Kingdom of Spain had failed to fulfil its obligations under article 63 of the Treaty on the Functioning of the European Union (TFEU) (2007) and article 40 of the EEA Agreement (1992) [4.] by imposing disproportionate measures on the failure to duly comply with the obligation to provide information concerning assets and rights located abroad. The Spanish legislation provided for very serious economic consequences, such as the taxation of the value of not duly declared assets and rights as unjustified capital gains with no limitation period. The legislation also provided for a proportional fine of 150% of the tax calculated on amounts corresponding to the value of those assets or those rights, which could be applied concurrently with flat-rate fines. At the same time, such flat-rate fines were much higher than the penalties imposed in respect of similar infringements in a purely national context, which were not capped. Commission v. Spain is an important case, as it addresses a number of relevant issues regarding the limits that the Member States must respect when implementing measures to counteract international tax avoidance and evasion.",

keywords = "European Tax Law, Disclosure, Exchange of information, Tax shelters, Tax Avoidance, Tax evasion, Free movement of capital",

author = "Eric Kemmeren and {Garc{\'i}a Prats}, Alfredo and Werner Haslehner and Volker Heydt and Georg Kofler and Michael Lang and Jo{\~a}o Nogueira and Panayi, {Christiana HJI} and {Raingeard de la Bl{\'e}ti{\`e}re}, Emmanuel and Confed{\'e}d{\'e}ration Europ{\'e}ene and Li{\`e}ge, {HEC – University} and Alexander Rust and Hogan Lovells",

year = "2022",

language = "English",

volume = "62",

pages = "304--310",

journal = "European Taxation",

issn = "0014-3138",

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Kemmeren, E, García Prats, A, Haslehner, W, Heydt, V, Kofler, G, Lang, M, Nogueira, J, Panayi, CHJI, Raingeard de la Blétière, E, Européene, C, Liège, HECU, Rust, A & Lovells, H 2022, 'CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA', European Taxation, vol. 62, no. 7, pp. 304-310.

CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA. / Kemmeren, Eric; García Prats, Alfredo ; Haslehner, Werner et al.
In: European Taxation, Vol. 62, No. 7, 2022, p. 304-310.

Research output: Contribution to journal › Article › Professional

TY - JOUR

T1 - CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA

AU - Kemmeren, Eric

AU - García Prats, Alfredo

AU - Haslehner, Werner

AU - Heydt, Volker

AU - Kofler, Georg

AU - Lang, Michael

AU - Nogueira, João

AU - Panayi, Christiana HJI

AU - Raingeard de la Blétière, Emmanuel

AU - Européene, Confedédération

AU - Liège, HEC – University

AU - Rust, Alexander

AU - Lovells, Hogan

PY - 2022

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N2 - This is an Opinion Statement, submitted to the EU institutions in May 2022, of the CFE ECJ Task Force on Commission v. Spain (Case C-788/19) (also cited as the Form 720 case), in which the First Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 27 January 2022. The Court, in its decision, ruled in favour of the action brought by the Commission and did not fully follow the reasoning of Advocate General Saugmandsgaard Øe in his Opinion of 15 July 2021, who proposed only partially accepting the action brought by the Commission. The Court held that the Kingdom of Spain had failed to fulfil its obligations under article 63 of the Treaty on the Functioning of the European Union (TFEU) (2007) and article 40 of the EEA Agreement (1992) [4.] by imposing disproportionate measures on the failure to duly comply with the obligation to provide information concerning assets and rights located abroad. The Spanish legislation provided for very serious economic consequences, such as the taxation of the value of not duly declared assets and rights as unjustified capital gains with no limitation period. The legislation also provided for a proportional fine of 150% of the tax calculated on amounts corresponding to the value of those assets or those rights, which could be applied concurrently with flat-rate fines. At the same time, such flat-rate fines were much higher than the penalties imposed in respect of similar infringements in a purely national context, which were not capped. Commission v. Spain is an important case, as it addresses a number of relevant issues regarding the limits that the Member States must respect when implementing measures to counteract international tax avoidance and evasion.

AB - This is an Opinion Statement, submitted to the EU institutions in May 2022, of the CFE ECJ Task Force on Commission v. Spain (Case C-788/19) (also cited as the Form 720 case), in which the First Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 27 January 2022. The Court, in its decision, ruled in favour of the action brought by the Commission and did not fully follow the reasoning of Advocate General Saugmandsgaard Øe in his Opinion of 15 July 2021, who proposed only partially accepting the action brought by the Commission. The Court held that the Kingdom of Spain had failed to fulfil its obligations under article 63 of the Treaty on the Functioning of the European Union (TFEU) (2007) and article 40 of the EEA Agreement (1992) [4.] by imposing disproportionate measures on the failure to duly comply with the obligation to provide information concerning assets and rights located abroad. The Spanish legislation provided for very serious economic consequences, such as the taxation of the value of not duly declared assets and rights as unjustified capital gains with no limitation period. The legislation also provided for a proportional fine of 150% of the tax calculated on amounts corresponding to the value of those assets or those rights, which could be applied concurrently with flat-rate fines. At the same time, such flat-rate fines were much higher than the penalties imposed in respect of similar infringements in a purely national context, which were not capped. Commission v. Spain is an important case, as it addresses a number of relevant issues regarding the limits that the Member States must respect when implementing measures to counteract international tax avoidance and evasion.

KW - European Tax Law

KW - Disclosure

KW - Exchange of information

KW - Tax shelters

KW - Tax Avoidance

KW - Tax evasion

KW - Free movement of capital

M3 - Article

SN - 0014-3138

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SP - 304

EP - 310

JO - European Taxation

JF - European Taxation

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Kemmeren E, García Prats A, Haslehner W, Heydt V, Kofler G, Lang M et al. CFE ECJ Task Force: Opinion Statement ECJ-TF 2/2022 on the CJEU decision of 27 January 2022 in Case C-788/19, European Commission v Kingdom of Spain (Form 720), on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the EEA. European Taxation. 2022;62(7):304-310.

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