National legislation requiring Spanish tax residents to declare their overseas assets or rights is contrary to EU law

ECLI:EU:C:2022:55

curia.europa.eu - Failure of Spain to fulfill obligations – Article 258 TFEU – Free movement of capital

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,

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

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the Court (First Chamber) hereby:

1.      Declares that, by providing that the failure to comply with or the partial or late compliance with the obligation to provide information concerning assets and rights located abroad entails the taxation of undeclared income corresponding to the value of those assets as ‘unjustified capital gains’, with no possibility, in practice, of benefiting from limitation;

by subjecting the failure to comply with or the partial or late compliance with the obligation to provide information concerning assets or rights located abroad to a proportional fine of 150% of the tax calculated on amounts corresponding to the value of those assets or those rights, which may be applied concurrently with flat-rate fines, and

by subjecting the failure to comply with or the partial or late compliance with the obligation to provide information concerning assets or rights located abroad to flat-rate fines the amount of which is disproportionate to the penalties imposed in respect of similar infringements in a purely national context and the total amount of which is not capped,

the Kingdom of Spain has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the Agreement on the European Economic Area.

2.      Orders the Kingdom of Spain to pay the costs.