28.4.2012

EN

Official Journal of the European Union

C 126/9

(Case C-127/12)

2012/C 126/18

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: W. Roels and F. Jimeno Fernández, Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court should:

—declare that, by applying different tax treatment to donations and successions between beneficiaries and donees resident in Spain and those not resident in Spain, between bequeathers resident in Spain and those not resident in Spain, and between donations and similar transfers of immovable property situated within and outside of Spain, the Kingdom of Spain has failed to fulfil its obligations under Articles 21 and 63 of the Treaty on the Functioning of the European Union (TFEU) and Articles 28 and 40 of the Agreement on the European Economic Area (EEA);

—order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

1.In Spain, the Impuesto sobre Sucesiones y Donaciones (succession and donation tax) is a national tax, the basic provisions for which are laid down in Ley 29/87 (Law 29/87) of 18 December 1987, and in the regulation adopted by Real Decreto (Royal Decree) 1629/1991 of 8 November 1991. The management and collection of the tax was granted to the Autonomous Communities, although national legislation applies in the cases laid down therein, that is, primarily in cases in which there is no personal or real connection with an Autonomous Community.

2.In all of the Autonomous Communities which have adopted succession and donation tax legislation, the tax burden born by the tax payer is considerably lower than that imposed under national legislation, which leads to a difference in tax treatment of donations and successions between beneficiaries and donees resident in Spain and those not resident in Spain, between bequeathers resident in Spain and those not resident in Spain, and between donations and similar transfers of immovable property situated within and outside of Spain.

3.The Spanish national legislation at issue infringes Articles 21 and 63 TFEU and Articles 28 and 40 EEA.