10.3.2012

EN

Official Journal of the European Union

C 73/20

(Case C-678/11)

2012/C 73/35

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 the Kingdom of Spain has failed to meet its obligations under Article 56 TFEU (formerly Article 49 TEC) and Article 36 of the EEA Agreement by adopting and maintaining in force Article 46(c) of the consolidated version of the Ley de Regulación de los Planes y Fondos de Pensiones, Article 86 of Real Decreto Legislativo 6/2004 of 29 October 2004 approving the consolidated version of the Ley de ordenación y supervisión de los seguros privados, Article 10 of Real Decreto Legislativo 5/2004 approving the consolidated version of the Ley del Impuesto sobre la renta de los no residentes, and Article 47 of Ley 58/2003 (General Tributaria) of 17 December 2003, pursuant to which foreign pension funds based in other Member States and which offer occupational pension schemes in Spain, and insurance companies which operate in Spain under the freedom to provide services, inter alia, are required to designate a tax representative who is resident in Spain.

—order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

1.The Spanish tax law provisions referred to above require tax payers who are not resident in Spain to designate a tax representative who is resident in Spain. In particular, that requirement is imposed on foreign pension funds based in other Member States and which offer occupational pension schemes in Spain, and insurance bodies which operate in Spain under the freedom to provide services.

2.The Commission considers that the requirement to designate a tax representative resident in Spain in the cases referred to constitutes an obstacle to the free movement of services in so far as it imposes an additional burden on the entities and physical persons mentioned, who are required to solicit the services of a representative. In addition, that requirement constitutes an obstacle to the free movement of services for persons resident, and undertakings established, in a Member State other than Spain wishing to provide tax representation services to entities or physical persons operating in Spain.

3.The provisions in question infringe Article 56 TFEU (formerly Article 49 TEC) and Article 36 of the EEA Agreement.