17DEC ESP TAX DISCRIM

21DEC

BAS

This report provides a professional balancing act and analysis for the current judicial review opportunities regarding Spanish tax discrimination as of December 2025. Based on the provided COCOO framework and search data, all identified opportunities are within the required legal timeframes for challenge.

General legal framework for judicial review

Judicial review is a specialized form of litigation against the government that allows for the quashing of unlawful actions and serves as the rule of law in action. To be admissible, a claimant must typically demonstrate standing by showing that a decision is of direct and individual concern to them. Individual concern requires the applicant to possess specific attributes or face circumstances that distinguish them in the same manner as the addressee of a decision. In the context of tax law, challenges generally seek the annulment of discriminatory measures that violate fundamental principles.

Opportunity one: judicial review of the proposed 100 percent state complementary tax on non-EU property buyers

The Spanish government has proposed a state complementary tax that would impose a 100 percent surcharge on property acquisitions by residents outside the European Union and European Economic Area.

Legal merit and grounds for challenge

A primary ground for judicial review is that this tax constitutes a restriction on the free movement of capital prohibited by Article 63 of the Treaty on the Functioning of the European Union. Furthermore, it may violate Article 14 of the Spanish Constitution, which protects the principle of equality and prohibits discrimination based on nationality or residence. Experts have also characterized the measure as confiscatory in nature, which is a significant legal flaw in tax legislation.

The balancing act

The strengths of this judicial review include strong precedents from the Court of Justice of the European Union and the Spanish National Court, which have recently struck down similar discriminatory practices against non-EU residents. The primary risk is the government’s justification that the tax addresses social inequality and discourages speculative investment, which may be argued as a valid public interest goal. However, courts are willing to scrutinize whether such evidence is reliable and capable of supporting the conclusions drawn.

Opportunity two: claims and review regarding discriminatory wealth tax caps for non-residents

Recent Supreme Court rulings in October and November 2025 have confirmed that non-resident taxpayers must be allowed to apply the joint income-wealth limit cap established in Article 31 of the Wealth Tax Law.

Legal merit and grounds for challenge

The exclusion of non-residents from this 60 percent cap was found to be contrary to the principle of equality. The court emphasized that residence cannot be a justifiable obstacle to applying anti-confiscation protections. This creates an opportunity to challenge existing assessments and seek refunds for tax years that are not yet time-barred.

The balancing act

The opportunity is highly favorable for applicants because the legal doctrine is now settled by the highest court. Potential recovery can include a reduction in liability of up to 80 percent. The main challenge for applicants will be the administrative burden of proving worldwide income to calculate the cap correctly. However, the Supreme Court has noted that international treaties provide sufficient mechanisms for such verification.

Opportunity three: judicial review for non-resident companies regarding Spanish withholding tax recovery

The Central Economic-Administrative Tribunal (TEAC) issued a landmark resolution in December 2025 allowing non-resident companies to recover Spanish withholding tax (IRNR) when they are unable to utilize foreign tax credits due to losses.

Legal merit and grounds for challenge

The grounds are based on the CJEU judgment in Case C-601/23, which establishes that denying a refund to a non-resident when a resident in an equivalent situation would not bear the tax cost is discriminatory. This restriction violates the free movement of capital under the TFEU.

The balancing act

The pro-investor nature of this development reduces the risk of irreversible double taxation for international groups. However, the ruling is partial, and disputes may still arise over the documentation required to prove that the foreign tax credit could not be used. Applicants must ensure they meet the specific comparability requirements set by the TEAC.

Opportunity four: judicial review of rental expense deductions for non-EU residents

A National Court judgment from July 2025 recognized the right of non-EU residents to deduct property-related expenses from their Spanish rental income, an advantage previously limited to EU residents.

Legal merit and grounds for challenge

The court ruled that Article 24.6 of the Non-Resident Income Tax Law must be interpreted to include third-country residents to avoid violating the free movement of capital. This prohibits less favorable treatment based solely on residence.

The balancing act

This is a clear win for non-EU property owners, potentially reducing their effective tax burden significantly. The risk remains that the State Attorney’s Office may lodge an appeal before the Supreme Court, meaning the ruling might not be final yet. Applicants should proceed with refund claims for the past four years while monitoring the status of any appeals.

Procedural considerations for all opportunities

Potential applicants must act within the time limit of two months and ten days for annulment actions to avoid being time-barred . If an action is brought on the grounds of procedural violations, such as a lack of reasoning or failure to respect the right to be heard, the applicant must show that this error affected the outcome of the case . While waiting for a full judgment can take several years, a fast-track procedure may be available for urgent cases that do not involve extreme complexity . Additionally, claimants may seek interim measures to suspend the challenged tax payment while the main action is pending, provided they can demonstrate urgency and serious harm .

ALLIES

Based on the strategy outlined in the provided URL regarding the Modelo 720 case and the identified judicial review opportunities against HMRC and the EU Commission, here is a list of organizations that would likely benefit from a successful judicial review. These entities could gain from follow-on compensation claims, positive externalities from clarified law, or restored reputation.

### Potential Beneficiary Organizations & Contact Information

**1. The Association of British Expats in Spain (ABES)**
* **Official Email**: info@abexspain.org
* **Address**: Typically a correspondence address in Marbella or a virtual office; specific street address not publicly listed for privacy.
* **Reason for Benefit**: Their members are the primary, diffuse victims. A successful JR establishing HMRC’s wrongful data transfer would directly support their members’ claims for compensation for distress, advisory costs, and any unresolved fines, strengthening their advocacy position.

**2. UK Finance**
* **Official Email**: contact@ukfinance.org.uk
* **Address**: Pinners Hall, 105-108 Old Broad Street, London, EC2N 1EX, United Kingdom.
* **Reason for Benefit**: Its member banks and financial institutions were the mandatory data furnishers under the CRS. A finding that HMRC acted unlawfully in its data transfer policies would protect them from future complaints or litigation from clients, restore their reputation as trusted intermediaries, and provide clarity for future compliance.

**3. The Chartered Institute of Taxation (CIOT)**
* **Official Email**: post@ciot.org.uk
* **Address**: 1st Floor, Artillery House, 11-19 Artillery Row, London, SW1P 1RT, United Kingdom.
* **Reason for Benefit**: Many of its members advised clients on Modelo 720. A judicial finding that the underlying framework was illegally supported by HMRC validates the complex position advisors were in and helps restore professional reputation. It also creates a clearer, more principled landscape for future cross-border tax advice.

**4. International Chamber of Commerce (ICC) United Kingdom**
* **Official Email**: icc@iccuk.uk
* **Address**: 12 Grosvenor Place, London, SW1X 7HH, United Kingdom.
* **Reason for Benefit**: A successful JR would be seen as a victory for the rule of law and fair treatment in cross-border business. It would create positive externalities by setting a precedent against administrative overreach that deters investment and free movement within the Single Market, which aligns with the ICC’s core mission.

**5. Transparency International EU (TI EU)**
* **Official Email**: brussels@transparency.org
* **Address**: Avenue des Arts 56, 1000 Brussels, Belgium.
* **Reason for Benefit**: A key part of the strategy is uncovering the failure to initiate *Acción de Regreso* (clawback) against Spanish officials. A successful JR highlighting systemic accountability failures would powerfully support TI EU’s work on good governance, public integrity, and holding powerful actors to account for maladministration.

### Strategic Next Steps for Engagement

When contacting these organizations, frame the proposed judicial review not just as a narrow legal challenge, but as a strategic opportunity to:
* **Establish a Protective Precedent**: For financial institutions and advisors, it’s about preventing a repeat of being caught between conflicting state obligations.
* **Secure Systemic Accountability**: For governance NGOs, it’s about using the finding to push for broader reform and personal accountability in public administrations.
* **Amplify Collective Voice**: For expatriate associations, a successful JR finding provides powerful, court-approved leverage for individual compensation claims that are currently fragmented and difficult to pursue.

A successful judicial review would create a formal “Finding of Infringement” (FOIG) against HMRC and/or the EU Commission. This finding would serve as a powerful catalyst, enabling these groups to pursue wider redress, advocate for policy change, or defend their members’ interests with significantly greater authority.

JR

Based on the materials provided, this analysis addresses the ESP TAX DISCRIM case concerning the Spanish Modelo 720 penalty regime. A judicial review has conclusively occurred at the supranational level, resulting in the Court of Justice of the European Union (CJEU) declaring the core Spanish DORCAP illegal. However, fresh judicial review opportunities exist against other public bodies for their ancillary roles, and these are not time-barred.

### 1. Analysis of Judicial Review Opportunities and Causes of Action

The primary illegal DORCAP—Spain’s Modelo 720 penalty regime under Law 7/2012—has already been the subject of a definitive judicial review by the CJEU (Case C-788/19). Any domestic UK judicial review of that specific Spanish law would be time-barred and substantively moot given the CJEU’s ruling.

However, viable, non-time-barred judicial review opportunities exist concerning the conduct of other public bodies, notably HM Revenue & Customs (HMRC) and the European Commission. Their DORCAPs constitute ongoing harms or active policies.

* **Ongoing Harm & Fresh Decisions by HMRC**: HMRC’s policy of automatically exchanging financial data with Spain under the Common Reporting Standard (CRS) is a continuing operation. The critical fact is that this data exchange persisted *after* the CJEU’s ruling in January 2022, which established that Spain was using the data to enforce an illegal penalty regime. This continuation is a susceptible ongoing policy. Your proposed strategy of writing a “letter before claim” to HMRC is not a “trick” but a standard pre-action protocol step. Demanding that HMRC suspend data flows to Spain until compliance with EU law is verified, and then challenging a refusal, would create a fresh, justiciable decision. Seeking this decision would strengthen your *locus standi*, as you would be directly challenging a refusal to a request you made.

* **Omission by the European Commission**: The European Commission’s management of Infringement Proceeding 2015/4212 represents a susceptible series of decisions and omissions. While the Commission ultimately succeeded before the CJEU, a judicial review could allege that its delayed referral of the case allowed years of foreseeable harm to accumulate. This is a justiciable allegation of maladministration.

**Identified Causes of Action (COAs)**:

* **Against HMRC**:
* **Illegality/Ultra Vires**: For acting outside its statutory powers by operating the CRS data exchange in a manner that facilitated breaches of fundamental EU rights, contrary to the purpose of the enabling legislation.
* **Irrationality (*Wednesbury* Unreasonableness)**: For continuing automatic data transfer to a jurisdiction known to be applying illegal and disproportionate penalties, despite the foreseeable harm to data subjects, in a way no reasonable authority would.
* **Misfeasance in Public Office**: If evidence from FOI requests shows officials knew of the illegal use of the data but continued transfers regardless, this tort could be engaged. The harm is to a diffuse class of UK taxpayers/residents.
* **Breach of Statutory Duty**: Arguing that the data-sharing powers under the CRS incorporate an implied duty to ensure transfers do not facilitate foreign illegal acts.

* **Against the European Commission**:
* **Irrationality and Procedural Impropriety**: For unreasonable delay in pursuing the infringement case against Spain, despite the clear and ongoing harm to EU citizens.

**Standing (*Locus Standi*) for “No Particular Victim” Applicant**: Your organization, as a consumer and competition advocacy body, can claim a “sufficient interest” under section 31 of the Senior Courts Act 1981. The key is framing the issue as one of systemic regulatory failure affecting a broad, unidentifiable class (all UK residents with Spanish assets). Analogous to the “Lordhope model” of public interest standing, the court is likely to grant standing where there is a “public ill” requiring redress, the applicant is a responsible body, and no other equally effective challenger exists. The diffuse nature of the victim class, where individuals may lack resources to challenge HMRC, directly supports your standing as a representative body.

### 2. Ultra Vires & Irrational DORCAPs (Ranked)

1. **HMRC’s Continued Data Transfer Post-CJEU Ruling (January 2022-Present)**: This is the highest-ranked, most susceptible DORCAP. A court is highly likely to find this *ultra vires* and irrational. The statutory power to exchange data cannot reasonably be interpreted as authorizing cooperation with a regime actively applying penalties declared illegal under EU law. Continuing this policy after the CJEU judgment is manifestly unreasonable.
2. **HMRC’s Failure to Conduct a Post-Judgment Risk Assessment**: The omission to formally reassess the risks of data transfer following the CJEU ruling is a strong candidate for an irrationality finding. A reasonable regulator, faced with a landmark court judgment condemning the foreign regime, would proactively review its cooperation.
3. **The European Commission’s Delay in Referring Spain to the CJEU**: This is susceptible but fact-dependent. If internal documents show officials flagged “high risk of irreversible harm” yet proceedings stalled, a finding of irrational delay is possible. The counter-argument is the Commission’s wide discretion in managing infringement proceedings.
4. **Spanish Authorities’ Failure to Initiate *Acción de Regreso***: While not directly justiciable in a UK court, this Spanish DORCAP (omission) is highly susceptible to criticism. The legal obligation to recover public funds from negligent officials appears clear under Spanish law (Art. 36 LRJSP), and the failure to act is arguably irrational given the scale of the state’s liability.

### 3. Suspended Quashing Orders

A suspended quashing order is the optimal remedy against HMRC. The court should quash the decision or policy that authorizes automatic data transfers to the Spanish Tax Agency (AEAT) concerning information that could be used for Modelo 720 enforcement. The order must be suspended for a period of **6 months**. This suspension is critical to avoid administrative chaos in international tax cooperation. The condition for the suspension should be that HMRC uses this period to: (a) formally renegotiate the terms of data exchange with Spain to include binding safeguards preventing use for illegal penalties, or (b) establish a robust, lawful mechanism for UK taxpayers to object to the transfer of their data to Spain.

### 4. Ongoing Harm & Injunctive Relief

The ongoing harm is the continued, real-time flow of UK taxpayer financial data to an authority (AEAT) that has operated an illegal penalty regime and has not demonstrated systemic reform. This creates a live risk of further punitive actions, even if under a different legal guise, and constitutes a continuing breach of data subjects’ rights.

**Key Elements for an Interim Injunction Application**:
* **The Cause of Action**: A strong prima facie case that HMRC’s continued data transfer is ultra vires and irrational.
* **The Balance of Convenience**: Weighs heavily in favor of an injunction. The irreparable harm is the ongoing violation of fundamental rights and exposure to financial risk for a diffuse class. The harm to HMRC (a temporary pause in one data stream) is administrative and outweighed.
* **Undertaking in Damages**: Your client should be prepared to give an undertaking, though its impact on the public purse will be a factor the court considers.
* **The Relief Sought**: An order prohibiting HMRC from transmitting financial account data of UK residents to the Spanish AEAT under the CRS, pending the substantive hearing or the implementation of court-approved safeguards.

### 5. Statement of Legal Principle Declaration

“It is hereby declared that HM Revenue & Customs acted ultra vires and in breach of its duties under the Common Reporting Standard by automatically exchanging taxpayer data with the Spanish Tax Agency after the Court of Justice of the European Union, in Case C-788/19, had declared the Spanish penalty regime for which that data was a primary enforcement tool to be disproportionate and contrary to EU law, and in the absence of any verified safeguards to prevent the continued use of said data for unlawful purposes.”

### 6. Risk Disclosure Statement Court Order

The court should order that HMRC, within 28 days of the order, publish a clear “Risk Disclosure Statement” on the homepage of its website dedicated to international data exchange, and write to all UK financial institutions participating in the CRS. The statement must contain: (i) a summary of the court’s finding of unlawfulness; (ii) an acknowledgment that this created a foreseeable risk of financial harm to UK residents with assets in Spain; (iii) a description of the specific data flows affected; and (iv) a clear explanation of the steps now taken to remediate the risk, including how taxpayers can inquire if their data was transferred and seek redress. This publication must remain active for a minimum of 12 months.

### 7. Assessment & Publicity of Risk

The core strategy of your FOI requests is to uncover this. Presently, there is no public evidence that HMRC conducted a specific, documented internal risk assessment on the legality of continuing CRS transfers to Spain *after* the CJEU’s January 2022 ruling. The failure to conduct such an assessment, or to do so and ignore its conclusions, is a powerful additional ground for criticism. It demonstrates a lack of due diligence, a failure to exercise a duty of care towards data subjects, and supports an argument of systemic operational failure. If the FOI requests confirm no such assessment exists, this becomes a central pillar of the claim.

### 8. Responsible Parties & Individual Liability

* **HMRC**: The responsible unit is the **International Data Exchange team** within HMRC’s Centre for Exchange of Intelligence. The Director of that unit is the most responsible named official for the ongoing policy.
* **Spanish Ministry of Hacienda**: Responsibility lies with the **technical secretaries and legal advisors** who drafted Law 7/2012, and the **senior officials within AEAT** who enforced its penalty regime despite early warnings.

**(a) Contributorily liable in tort?** No. There is no evidence of any individual in either HMRC or the Spanish administration being held personally liable in tort for these failures.
**(b) Disciplinary proceedings?** No public record exists for either jurisdiction.
**(c) Dismissed or fined?** No.

This universal lack of personal accountability is a profound failure and must be a central line of inquiry and demand. The FOI requests directly target this. In litigation, you should seek a court declaration that the failure to pursue *acción de regreso* (in Spain) or disciplinary action (in the UK) is itself unlawful, or an order mandating that HMRC initiate an investigation into potential misfeasance by its officials.

### 9. Tort Damages & Remediation Project

* **Estimated Aggregate Tort Damages**: A precise figure is impossible without state disclosure, but a reasoned estimate can be framed. The CJEU ruling forced Spain to refund fines, which reportedly amounted to hundreds of millions of euros. The aggregate tort damages from the *ancillary* failures of HMRC and the Commission would cover distinct heads of loss: the costs of defensive tax advice, legal fees for reclaiming fines, and non-material damages for distress and invasion of privacy for the entire class exposed to risk. A conservative notional estimate, based on a class of tens of thousands of affected individuals, would be in the range of **£50-100 million** for the UK cohort alone.

* **Distribution Mechanism & Remediation Project**: Given the diffuse, unidentifiable class, a cy-près or collective redress mechanism is required. Damages should be paid into a specially constituted **”Cross-Border Taxpayer Rights Trust Fund”**. This fund would not make individual payments but would finance:
1. A permanent **specialist legal advice unit** to assist EU citizens facing disproportionate or discriminatory tax penalties in any member state.
2. An **annual litigation grant** to support strategic test cases before national and EU courts on similar issues.
3. A **public awareness campaign** on taxpayer rights under the EU Charter related to data sharing and penalties.

This project directly benefits the harmed class (mobile EU citizens/UK residents with foreign assets) by systemically reducing future risk. It creates positive externalities by strengthening the enforcement of EU law, educating the public, and deterring other member states from similar unlawful conduct, thereby providing meaningful remediation for the widespread harm suffered.

 

17DEC

FOIS

Here are the customized Freedom of Information requests drafted for the three key public bodies involved in the Hacienda (Modelo 720) case.

Each letter has been adapted to cite the correct legal jurisdiction for that specific body (UK Act for HMRC, EU Regulation for the Commission, and Transparency Law for Spain), while strictly maintaining your Model Request structure and strategic objectives.

1. TARGET: HM Revenue & Customs (HMRC) – UK

Relevance: HMRC collects data on UK residents and automatically shares it with Spain (under CRS/DAC). This data exchange facilitated the Spanish authorities in applying the illegal Modelo 720 fines. This request probes whether HMRC risk-assessed sending data to a jurisdiction operating an illegal penalty regime.

Sent via email to: foi.request@hmrc.gov.uk

Date: [Insert Date]

Re: Freedom of Information Request – Evidence of Ultra Vires Risk Reports, Investigations into Officials’ Torts, and Liability for Facilitating Disproportionate Penalties Relating to [Automatic Exchange of Information (AEOI/CRS) Transfers to Spain] by [HMRC]

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk), 23 Village Way, Beckenham, Kent BR3 3NA, Companies House Registration: 15466919, EU Transparency Register: 177568392007-84. Email: contact@cocoo.uk.

This request is submitted under the Freedom of Information Act 2000 to gather evidence establishing tort liabilities for misfeasance, abuse of power, failure to notify or assess ultra vires risks and foreseeable harms, and reckless conduct by the regulator or public body responsible for the DORCAP (Decision/Omission/Regulation/Conduct/Action/Policy). Specifically, this refers to HMRC’s conduct in automatically transferring financial data to the Spanish Tax Agency (AEAT) under the Common Reporting Standard (CRS), despite the foreseeable risk that this data would be used to impose penalties declared contrary to EU Law (CJEU Case C-788/19).

It seeks to confirm the existence of ultra vires risk reports, any investigations into officials’ torts, and whether any acciones de regreso or equivalent recovery actions were pursued against culpable administrations or regulators for compensations paid by the state. If no such actions were taken, provide the reasons. The aim is to support potential claims for victim compensation where harms are diffuse or fragmented, creating an enforcement vacuum.

Please provide the following information in electronic format where possible. If any part is exempt, provide reasons and consider redacted disclosure.

Part 1: Establishing Enforcement Vacuum and Locus Standi

  • Provide a breakdown of complaints or representations received regarding data sharing with Spain (AEAT) in the last 3 years, specifically referencing “Modelo 720”, “disproportionate penalties”, or “human rights breaches”, categorised by complainant type (e.g., individual, small business, large corporate).

  • Disclose any impact assessment or economic analysis estimating potential financial loss to UK taxpayers/residents resulting from HMRC sharing data with non-compliant EU jurisdictions.

  • Confirm if any judicial review, civil litigation, or formal challenges have been commenced against HMRC regarding the safeguards on CRS data transfers to Spain in the last 3 years.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

  • Confirm the existence of any risk register entry, board paper, or compliance document related to International Data Exchange (CRS/DAC) that flagged risks regarding “receiving jurisdictions’ non-compliance with EU rights” or “disproportionate penalties abroad” as medium or high.

  • Provide the movement of risk scores (inherent vs. residual) for any such entry over the last 24 months, including the risk owner and title.

  • Confirm if an impact assessment exists for the continuation of data exchange with Spain following the CJEU Judgment C-788/19: provide date created, date finalized, and job title of the approver.

Part 3: Investigations into Officials’ Torts and Recovery Actions

  • Confirm if any internal investigation has been initiated to determine if officials responsible for International Data Exchange policy acted with misfeasance, gross negligence, or failure to assess ultra vires risks by continuing to supply data to a regime (Spain) known to be infringing EU fundamental freedoms.

  • If yes, disclose the outcome and findings on liability (redacted if necessary). If no, disclose the recorded rationale for not initiating one.

  • If HMRC has paid settlements or legal costs related to data sharing disputes, confirm if contribution or indemnity was sought from the responsible officials under relevant Civil Service codes.

Part 4: Systemic Aspects

  • Provide the percentage of staff in the International Data Exchange teams trained on “Human Rights in Data Sharing” or “Risks of Foreign Non-Compliance” in the last 2 years.

  • List titles of internal audit reports commissioned in the last 2 years relevant to CRS/DAC compliance or similar cross-border data issues.

If this request exceeds the cost limit under Section 12, contact me under Section 16 to refine it.

Sincerely,

Oscar Moya

Director, COCOO.uk

2. TARGET: Ministerio de Hacienda / AEAT (Spain)

Relevance: The primary author and enforcer of the illegal law. This request uses Spanish Law 19/2013 but maintains your specific demands regarding the Acción de Regreso (the obligation to claw back money from negligent officials).

Sent via Transparency Portal / Email: unidad.transparencia@hacienda.gob.es

Date: [Insert Date]

Re: Solicitud de Acceso a la Información – Evidencia de Riesgos Ultra Vires, Responsabilidad Patrimonial y Acción de Regreso en relación con el [Modelo 720 y Régimen Sancionador] por [Ministerio de Hacienda / AEAT]

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk), 23 Village Way, Beckenham, Kent BR3 3NA, Companies House Registration: 15466919. Email: contact@cocoo.uk.

This request is submitted under Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno to gather evidence establishing tort liabilities for misfeasance (mala fe), abuse of power, failure to notify or assess ultra vires risks and foreseeable harms, and reckless conduct by the regulator or public body responsible for the DORCAP (Decision/Omission/Regulation/Conduct/Action/Policy). Specifically, this refers to the drafting, approval, and enforcement of the penalty regime of Modelo 720 (Law 7/2012), declared illegal by the CJEU (Case C-788/19).

It seeks to confirm the existence of ultra vires risk reports, any investigations into officials’ torts, and whether any Acciones de Regreso (under Art. 36 LRJSP) were pursued against culpable officials for compensations paid by the state.

Please provide the following information in electronic format.

Part 1: Establishing Enforcement Vacuum and Locus Standi

  • Provide a breakdown of Reclamaciones de Responsabilidad Patrimonial (State Liability Claims) received regarding Modelo 720 in the last 3 years, categorised by complainant type.

  • Confirm the total amount of public funds paid out (or estimated provision) for refunds and interest regarding Modelo 720 following the CJEU ruling.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

  • Confirm the existence of any internal legal opinion (informe jurídico), risk register entry, or board paper created prior to or during the enforcement of Law 7/2012 that flagged risks of “incompatibility with EU Law” or “disproportionality of penalties” (specifically regarding imprescriptibility).

  • Disclose the risk assessment documents related to the European Commission Infringement Proceeding 2015/4212 prior to the final judgment. Did the Ministry assess the risk of losing as “High”?

Part 3: Investigations into Officials’ Torts and Recovery Actions

  • Confirm if any Procedimiento de exigencia de responsabilidad a autoridades y personal (Acción de Regreso under Art. 36 of Law 40/2015) has been initiated against the officials, technical secretaries, or ministers responsible for drafting or enforcing the illegal articles of Law 7/2012.

  • If yes, disclose the outcome.

  • If no, disclose the recorded rationale (informe justificativo) for not initiating an investigation, given the definitive finding of illegality by the CJEU and the financial damage caused to the Spanish Treasury (Erario Público) via refunds and interest.

Part 4: Systemic Aspects

  • List titles of internal audit reports (Intervención General) commissioned in the last 2 years relevant to the legislative failure of Modelo 720.

Sincerely,

Oscar Moya

Director, COCOO.uk

3. TARGET: European Commission (DG TAXUD)

Relevance: The “Guardian of the Treaties.” They eventually sued Spain, but the delay allowed years of damages to accumulate. This request probes whether they failed to act fast enough (omission).

Sent via email to: taxud-access-documents@ec.europa.eu

Date: [Insert Date]

Re: Access to Documents Request – Evidence of Ultra Vires Risk Reports, Investigations into Omissions, and Delays Relating to [Infringement Proceeding 2015/4212 against Spain] by [DG TAXUD]

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk), 23 Village Way, Beckenham, Kent BR3 3NA, Companies House Registration: 15466919. Email: contact@cocoo.uk.

This request is submitted under Regulation (EC) No 1049/2001 to gather evidence establishing liabilities for failure to notify or assess ultra vires risks and foreseeable harms, and reckless conduct by the regulator responsible for the DORCAP. Specifically, this refers to the Commission’s timeline and management of Infringement Proceeding 2015/4212 (Modelo 720), and the delay in referring Spain to the CJEU, which allowed continued enforcement of illegal fines.

Please provide the following information in electronic format.

Part 1: Establishing Enforcement Vacuum and Locus Standi

  • Provide a breakdown of complaints received regarding Spain’s asset declaration regime (Modelo 720) between 2013 and 2019, categorised by complainant type.

  • Confirm if the Commission assessed the “fragmented” nature of the harms to EU citizens during this period.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

  • Confirm the existence of any internal briefing, risk register entry, or note to the Commissioner that flagged the “urgency” or “high risk of irreversible harm” to EU citizens due to Spain’s aggressive enforcement during the pre-litigation phase (2015-2019).

  • Disclose any impact assessment estimating the financial damage suffered by EU citizens due to the Commission’s delay in bringing the case to the CJEU.

Part 3: Investigations into Officials’ Torts and Recovery Actions

  • Confirm if any internal inquiry (e.g., by the Ombudsman or Internal Audit) has been initiated to determine if the delay in processing File 2015/4212 constituted maladministration or failure to act within a reasonable time.

  • If yes, disclose the findings.

  • If no, disclose the rationale for the timeline adopted.

Part 4: Systemic Aspects

  • List titles of internal reports regarding the effectiveness of infringement proceedings in tax matters where Member States use “terror tactics” (disproportionate fines) to deter cross-border movement.

Sincerely,

Oscar Moya

Director, COCOO.uk

As solicitor for Cocoo.uk Charity, I have reviewed the case file “ESP TAX DISCRIMINATION LF” (Hacienda Case) and the associated investigation materials.

Based on the provided URLs and available public records, this case centers on the Spanish Tax Agency’s (Hacienda/AEAT) illegal regulatory framework (specifically regarding the declaration of foreign assets, likely Modelo 720 or discriminatory treatment of non-residents), which was found to breach EU law. The CoCoo strategy involves leveraging these findings to claim damages not just from the State, but potentially from private entities (banks, advisors) that facilitated or enforced these illegal rules.

Here is the legal analysis applied to the specific Causes of Action (COAs).

COA 1: STATE LIABILITY (Responsabilidad Patrimonial del Estado)

Basis: Breach of EU Law by the Spanish State (Legislative/Administrative acts).

  • 1. IDENTIFY PROVEN FOIGS (Findings of Infringement by Private Companies):

    • Result: None. (This COA targets the State, not private companies).

    • Note: The “Infringement” here is by the Kingdom of Spain, not a private entity. The key finding is CJEU Case C-788/19 (Commission v Spain), delivered on 27 January 2022, which ruled that Spain’s penalties and imprescriptibility rules for foreign assets were disproportionate and discriminatory.

  • 2. IDENTIFY POSSIBILITIES THAT THESE FOIGS COULD HAVE BEEN CAUSED BY AN ULTRAVIRES/UNLAWFUL DORCAP:

    • DORCAP Identified: The “Modelo 720” legislation (Law 7/2012) and the subsequent administrative penalties imposed by Hacienda.

    • Causation: The State’s DORCAP was the direct cause of the harm (fines, frozen assets, distress).

    • Judicial Review: YES. The DORCAP was judicially reviewed and declared contrary to EU law by the Court of Justice of the European Union (CJEU) in judgment C-788/19.

  • 3. STATE REDRESS & REGRESO:

    • Has the State Paid? YES. Following the CJEU ruling, Spain has been forced to refund fines explicitly connected to the illegal aspects of Modelo 720. However, “automatic” compensation for broader damages (moral damages, consultant fees) is often resisted, requiring individual litigation.

    • Disciplinary/Regreso: NO. There is no public record of the Spanish State initiating an Acción de Regreso (clawback) against the specific officials, ministers, or civil servants who drafted or enforced the illegal Law 7/2012. This lack of personal accountability is a key element of the Cocoo.uk campaign’s “systemic failure” argument.

  • DATES & TIME LIMITS (CLAIM DEADLINES):

    • Claim Window: Generally 1 year from the date of the definitive judgment (CJEU ruling on 27 Jan 2022).

    • Critical Note: For “Nullity of full right” (Nulidad de pleno derecho), some arguments allow for imprescriptibility, but standard State Liability claims face the strict 1-year administrative deadline (expired Jan 2023 for many, unless interrupted by a formal claim).

    • Tax Refund: 4 years (statute of limitations for tax earnings).

COA 2: NEGLIGENCE / BREACH OF FIDUCIARY DUTY (Private Sector)

Basis: Claims against Banks, Tax Advisors, and Asset Managers who blindly enforced the illegal DORCAP (e.g., freezing accounts) or failed to advise clients of its illegality.

  • 1. IDENTIFY PROVEN FOIGS (Findings of Infringement by Private Companies):

    • Result: NO DEFINITIVE “PROVEN” FOIGS YET.

    • Analysis: While Cocoo.uk alleges that banks infringed GDPR and Consumer Protection laws by cooperating with the illegal Hacienda framework, there are no widespread, publicly available court judgments (“Proven FOIGs”) specifically condemning private banks solely for complying with Modelo 720 before it was annulled.

    • Potential FOIGs: Sanctions by the AEPD (Spanish Data Protection Agency) against banks for disproportionate data processing related to tax inquiries could be cited as parallel FOIGs, but direct “proven” infringement linked to this specific case is currently an allegation to be litigated.

  • 2. IDENTIFY POSSIBILITIES THAT THESE FOIGS COULD HAVE BEEN CAUSED BY AN ULTRAVIRES/UNLAWFUL DORCAP:

    • Causation: YES. The private companies (Banks) argue they were compelled by the State’s DORCAP (the mandatory tax reporting laws).

    • Legal Argument: If the underlying DORCAP (Modelo 720) is ultra vires (as proven by CJEU), the private companies’ defense of “compliance with law” weakens if they acted disproportionately or without due diligence. The “unlawful DORCAP” is the root cause of the private sector’s alleged infringement.

  • 3. STATE REDRESS & REGRESO:

    • Has the State Paid? NO. The State does not indemnify private companies for their own negligence in applying laws, nor has it paid victims for the banks’ actions.

    • Disciplinary/Regreso: N/A.

  • DATES & TIME LIMITS (CLAIM DEADLINES):

    • Contractual Liability (Advisors/Banks): 5 years (Spanish Civil Code, Art. 1964) from the breach or knowledge of harm.

    • Non-Contractual Liability (Tort): 1 year (Spanish Civil Code, Art. 1968) from the knowledge of the “illegality” (post-CJEU judgment Jan 2022).

COA 3: BREACH OF EU COMPETITION LAW / MARKET DISTORTION

Basis: Allegations that the tax regime created market barriers or that specific entities benefited unfairly.

  • 1. IDENTIFY PROVEN FOIGS (Findings of Infringement by Private Companies):

    • Result: NONE. There are no specific Competition Authority (CNMC) findings against private companies in relation to the Hacienda case specifically.

    • Contrast: This differs from Cocoo’s “Radon” or “Construction” cases where CMA/CNMC cartels are cited.

  • 2. IDENTIFY POSSIBILITIES THAT THESE FOIGS COULD HAVE BEEN CAUSED BY AN ULTRAVIRES/UNLAWFUL DORCAP:

    • Analysis: Any market distortion was caused directly by the State’s DORCAP (tax laws), not by private company collusion. The State created the “barrier to entry” for foreign capital/assets.

  • 3. STATE REDRESS & REGRESO:

    • N/A.

  • DATES & TIME LIMITS:

    • Competition Damages: 5 years (EU Damages Directive).

WWW INFO COMPLEMENT (CASE CONTEXT)

  • The “Hacienda” Case Core: The Modelo 720 required Spanish tax residents to declare overseas assets >€50k. The penalties for non-compliance were up to 150% of the asset value + massive fixed fines (e.g., €5,000 per missing data point).

  • The “Victory”: The CJEU (Case C-788/19) ruled this system illegal because the penalties were disproportionate to the offense and violated the Free Movement of Capital.

  • Current Status: Spain amended the law (creating “Modelo 721” for crypto etc., with lower penalties). The “Battle” now is for full compensation for those who paid fines or suffered distress under the old regime.

  • Cocoo’s Role: Cocoo.uk appears to be positioning itself to:

    1. Represent victims in claiming damages.

    2. Pitch a “Public Contract” to Hacienda to help them “design a compliant system” or “manage the claims process” (The ‘Poacher turned Gamekeeper’ strategy described in your strategy documents).

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