Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 24 September 2019 — Novo Banco S.A. v Junta de Andalucía
Article in the EU VAT Directive
135(1)(d) and 401 of the EU VAT Directive 2006/112/EU
Article 401
Without prejudice to other provisions of Community law, this Directive shall not prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties or, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided that the collecting of those taxes, duties or charges does not give rise, in trade between Member States, to formalities connected with the crossing of frontiers.
Article 135
1. Member States shall exempt the following transactions:
(d) transactions, including negotiation, concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments, but excluding debt collection;
Facts
- The present case is a dispute between Novo Banco SA (claimant) and the Junta de Andalucía (defendant).
- Plaintiff is of the opinion that the defendant’s IDECA tax is not compatible with EU law. This tax provides tax benefits to banks if their head office is located in the autonomous region of Andalusia, or depending on the number of bank branches that the banks have established in that autonomous region or on the loans and investments that these banks make for projects in this autonomous region.
- By the first question, the referring court asks whether the IDECA tax is compatible with the freedom of establishment, the freedom to provide services and the free movement of capital. He has doubts about this, because the IDECA tax seems to amount to de facto taxing banks that do not have their headquarters in the autonomous region of Andalusia.
- By the second question, the referring court asks the Court a question concerning the nature of the IDECA tax. In particular, he wishes to know whether this tax should be classified as an indirect tax. And if so, whether this is compatible with the VAT Directive, taking into account the provisions of Articles 401 and 135 (1) (d) of that Directive.
Questions
Must Articles 49, 56 and 63 TFEU, which guarantee the freedom of establishment, the freedom to provide services and the free movement of capital, respectively, be interpreted as precluding, inter alia, a system of deductions like that laid down for the IDECA in points 2 and 3 of Article 6(7) of Andalusian Law 11/2010 of 3 December on fiscal measures for the reduction of the government deficit and for sustainability?
Must the tax on customer deposits in credit institutions in Andalusia (IDECA) be categorised as an indirect tax despite the fact that Article 6(2) of Andalusian Law 11/2010 classifies it as a direct tax, and, in that case, are its existence and chargeability compatible with VAT, in the light of the provisions of Articles 401 and 135(1)(d) of the VAT Directive.
Source
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