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ZCVRLA
Reports of Cases
OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 1 October 2019'
Case C-274/14
Banco de Santander SA
(Request for a preliminary ruling from the Tribunal-Econ6mico Administrativo Central (Central Tax
Tribunal, Spain))
(Reference for a preliminary ruling - State aid - Tax system - Corporation tax - Deduction -
Amortisation of goodwill resulting from acquisitions by undertakings resident for tax purposes in Spain
of shareholdings of at least 5% in undertakings resident for tax purposes outside Spain - Article 267
TFEU - Admissibility of preliminary reference - Definition of 'a court or tribunal' -
Independence - Lack of jurisdiction of the Court)
I. Introduction
1. In his Opinion delivered on 7 October 1999 in Joined Cases Gabalfrisa and Others (C-110/98
to C-147/98, EU:C:1999:489), Advocate General Saggio concluded that a Spanish tax tribunal, the
Tribunal Econ6mico-Administrativo Regional de Catalufia (Regional Tax Tribunal of Catalonia,
Spain), was not a court or tribunal for the purposes of Article 177 of the EC Treaty (now Article 267
TFEU).2 As he was not convinced that the Regional Tax Tribunal of Catalonia could be regarded as
sufficiently independent to satisfy the requirements stipulated by the Court, he concluded that it
could not properly be regarded as a court or tribunal for the purposes of what is now Article 267
TFEU.
1 Original language: English.
2 See also Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (C-17/00, EU:C:2001:366, point 26), in which he referred to the
gradual relaxation of the requirement of independence, which culminated in the judgment of 21 March 2000, Gabalfrisa and Others (C-110/98
to C-147/98, EU:C:2000:145). Advocate General Ruiz-Jarabo Colomer agreed with the assessment of Advocate General Saggio in his Opinion
delivered on 7 October 1999 in Joined Cases Gabalfrisa and Others (C-110/98 to C-147/98, EU:C:1999:489) and stated in his Opinion in De
Coster (C-17/00, EU:C:2001:366, point 28) that 'the members of the [tax tribunal] are employed by the administration and appointed by the
minister, who has the power to dismiss them without abiding by conditions clearly and categorically laid down by law. It cannot be said,
therefore, that the body's rules of operation guarantee the irremovability of its members and, consequently, it seems doubtful that it has a
degree of independence which allows it to resist possible undue intervention and pressure from the executive'. Advocate General Ruiz-Jarabo
Colomer concluded that the [tax tribunals] cannot be described as 'judicial'.
ECLJ:EU:C:2019:8021
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