By Isaac Ibáñez García
In accordance with the Normal Tax Legislation (LGT), the attraction for reversal towards all acts inclined to economic-administrative declare is non-obligatory. The economic-administrative declare is necessary and with out exhausting it, you can not go to the contentious course of (requirement of procedural). The time period to resolve the non-obligatory attraction for reinstatement is brief, (one month based on artwork. 225 LGT). Nonetheless, the time period to resolve the economic-administrative declare is lengthy (one yr, artwork. 240 LGT and, usually, it’s far exceeded).
The Courtroom of Justice of the European Union (CJEU) in its Judgment of January 21, 2020 (Case C? 274/14. Banco de Santander, S. A.) has acknowledged that economic-administrative courts (TEAs) don’t adjust to the requirement of independence, in its inside side, which characterizes the jurisdictional our bodies, in order that they can’t refer inquiries to the CJEU for a preliminary ruling. Nonetheless, previous to stated Judgment, the CJEU had acknowledged the economic-administrative courts legitimacy to lift stated points (Judgment of March 21, 2000, Gabalfrisa and others (C?110/98 a C?147/98), jurisprudence that has now been revised. In Spain, the TEAs can not increase questions of unconstitutionality earlier than the Constitutional Courtroom and now, neither, preliminary questions earlier than the Courtroom of Justice of the EU.
In accordance with the jurisprudence of the CJEU, the equivalence precept it imposes that inside procedures that have an effect on European regulation can’t be much less favorable than those who regulate comparable inside conditions; and based on precept of effectiveness They need to not make the train of the rights conferred by the Union authorized order not possible in apply or excessively troublesome.
Following a latest ruling by the Supreme Courtroom, (STS Might 21, 2018 STS 2054/2018 – ECLI:ES:TS:2018:2054), the executive route and, by extension, the economic-administrative route (which can be administrative route) is just not necessary (and the jurisdictional our bodies of the Judiciary could be accessed straight) when completely discussing the unconstitutionality of the authorized protection provisions because of the uselessness of stated route, provided that the executive our bodies (together with the TEAs) should not competent both to declare the unconstitutionality of a regulation or to lift the query of unconstitutionality to the Constitutional Courtroom. The STS quoted says:
“Articles 108 LBRL, 14.2 LRHL and 25.1 LJCA , in relation to articles 24.1 and 106.1 CE, have to be interpreted within the sense that: «When the unconstitutionality of the authorized provisions that cowl the acts of software of taxes and different revenue of Public Legislation of the native entities, a matter on which they lack the competence to pronounce or suggest it to whoever has competence to take action, being constrained to use the authorized norm in query, it isn’t necessary to file, as a procedural presupposition of the following contentious appeal- administrative, the corresponding administrative attraction supplied as necessary “.
Though this jurisprudence expressly refers back to the native tax sphere, it’s evident that it’s of normal software when what’s being mentioned is a matter of unconstitutionality; In the identical approach because the Judgment of the Courtroom of Justice of January 21, 2020, though it refers back to the Central Financial-Administrative Courtroom, it’s relevant to all TEAs, that’s, additionally to regional, native ones.
Nicely, by software of the precept of EU regulation of Equivalence shouldn’t be necessary both the economic-administrative route, when what’s mentioned is completely, the compatibility of the nationwide norm with the neighborhood norm, because the administrative our bodies (together with the TEAs) should not competent to refer the query for a preliminary ruling to the Courtroom of Justice of the EU.
Additionally affected is the EU precept of effectivenessSubsequently, provided that the executive our bodies and the TEAs should not competent to lift the query for a preliminary ruling, the long-term Deliberate to resolve economic-administrative claims (ONE YEAR) complicates the decision of claims of taxpayers with respect to taxes whose laws is harmonized throughout the scope of the European Union, delaying entry to the courts of Justice and, due to this fact , to the chance that they could increase a preliminary ruling earlier than the CJEU. Within the Member States there aren’t any obligatory administrative appeals with such an extended decision interval.
The equivalence or similarity between the query of unconstitutionality and the query referred, When making use of the precept of equivalence, the CJEU acknowledged it in its Judgment of January 26, 2010 (Case C-118/08. Urban Transport and General Services, SAL), by which he acknowledged that
“Union regulation opposes the applying of a rule of a Member State by advantage of which una declare of patrimonial duty of the State primarily based on an infringement of stated Proper by a nationwide regulation declared by a judgment of the Courtroom of Justice of the European Communities issued in accordance with Article 226 EC it will possibly solely be upheld if the plaintiff has beforehand exhausted all home treatments aimed toward difficult the validity of the dangerous administrative act issued on the premise of stated regulation, whereas Such rule doesn’t apply to a declare of patrimonial duty of the State primarily based on the infraction of the Structure by the identical regulation declared by the competent court docket ”.
Subsequently, the rules of equivalence and effectiveness may very well be violated when the duty of the economic-administrative route is established by the Normal Tax Legislation within the decision of appeals that have an effect on the laws of the European Union and the time period of decision of the identical is ONE YEAR, because the TEAs should not empowered to lift the query for a preliminary ruling.
Photograph: Miguel Rodrigo. Dublin