EUROPEAN UNION: Judgment of the Court of Justice dated June 28, 2022.

Tax Form 720, Informative declaration of assets and rights abroad.

The CJEU analyzes and rules on the adequacy to EU law of the patrimonial responsibility procedures of Spain and the limitation that was being issued on the refunds of the sanctions imposed in terms of Tax Form 720.

Of course, this is an important resolution that completes the results already obtained in the previous judgment in terms of sanctions for non-compliance derived from form 720 and that opens the way to other assumptions in terms of patrimonial responsibility derived from actions of the Tax Office.

The judgment of the Court of Justice of the European Union (CJEU) puts an end to an infringement procedure initiated in 2016.

The European Commission argued that certain requirements of the Spanish law (established in 2015) so that individuals could claim compensation for damages arising from the application of rules with the force of law contrary to the Law of the European Union (EU) made it excessively difficult to obtaining such compensation (which contravened the general principle of effectiveness) and that, moreover, were stricter than those required in cases of patrimonial responsibility, for damage caused by the application of rules contrary to Spanish law (violating the principle of equivalence).

In the Judgment of June 28, 2022, issued in case C-278/20, the Court concludes that conditioning the exercise of the liability action to the concurrence of the following assumptions and requirements unjustifiably hinders the exercise of said regime of liability, patrimonial responsibility of the State:

That the CJEU has previously declared that national law is incompatible with EU law, and,

That an appeal has been filed, also previously, alleging said infraction against the administrative action that materializes it.

Said conflict is also patent when there has been no prior administrative act and the infringement of EU Law derives directly from the law. In this way, CJEU concludes that the Spanish rule thus violates the principle of effectiveness.

In other words, the CJEU understands that it is not compatible with the principle of effectiveness, the implicit requirement in the Spanish regulations currently in force, that there be a CJEU ruling declaring non-compliance with Union Law by the Member State that in question or which results in the incompatibility with Union Law of the act or omission that caused the damage since, in accordance with its constant jurisprudence, the right to reparation cannot be made subject to the existence of a judgment of the CJEU . As an indirect consequence of this, it is also considered contrary to EU law that the limitation period of one year is computed from the date of publication in the Official Journal of the European Union of the judgment declaring the infringement. The latter, without prejudice to the fact that the CJEU makes it clear that it is perfectly admissible for national legislation to establish a reasonable limitation period for the liability action.

In the same way, although it is recognized that it is lawful to demand that the injured party demonstrate that he/she has acted with sufficient diligence to avoid the occurrence of the damage, and therefore it is necessary to impose the need to have brought legal actions aimed at that objective; The CJEU considers that the requirement of having obtained a final judgment in any instance in an appeal against the administrative action is not admissible when the damage derives from an act or omission of the legislator without there being an administrative action that the individual can challenge.

It is, therefore, a judgment that obliges to modify the current regime of patrimonial responsibility of the State for the damages caused by legislative provisions contrary to EU Law, although it must be considered that many of the aspects now questioned by the CJEU have already been nuanced by the jurisprudence of the Supreme Court.

This is, without a doubt, a pronouncement of enormous relevance that must be taken into account when analyzing the assumptions of responsibility not only for infringement of EU law, but also for legislative provisions contrary to the Constitution.