Brussels, 25 October 2007
Direct taxation: Commission requests Spain to amend discriminatory tax rules applied to non-residents recruited to work in Spanish diplomatic or consular offices
The European Commission has sent Spain a formal request to amend its legislation according to which persons resident in a Member State other than Spain when recruited to work in a Spanish diplomatic or consular office cannot benefit from any personal or family allowances. The Commission considers that this tax provision as contrary to the free movement of persons guaranteed by the EC Treaty given that persons being Spanish residents before recruitment can benefit from these allowances. The request is in the form of a ‘reasoned opinion’, the second stage of the infringement proceedings provided for in Article 226 of the Treaty. If Spain does not respond satisfactorily to the reasoned opinion within two months, the Commission may refer the matters to the European Court of Justice
Under the Spanish legislation, a person who is recruited from a Member State other than Spain to work abroad in a diplomatic mission or in any other similar institution continues to be treated as a non-resident for tax purposes. This leads to restricted availability of certain tax advantages. By contrast, those persons who were residents in Spain before being recruited to work abroad are treated as residents.
The Commission therefore has taken the view that the Spanish tax law provision contravenes the free movement of workers and self-employed persons guaranteed by Articles 39 and 43 of the EC Treaty and the corresponding provisions of the EEA Agreement.
The Commission's case reference number is 2006/2081.