hitzaldia 2011 idaho

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The Basque Economic Agreement

and New Governance Possibilities

(or impossibilities)

Dr. Susana SERRANO GAZTELUURRUTIAProfessor of Financial and Tax Law

University of the Basque Country

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I. Presentation• Where are we?- European Union- Spain- Basque Country

• Starting, in a few clicks• The Economic Agreement- Origin of the Economic Agreement- What is the Economic Agreement nowadays?- What does it aim to?

- What is the Quota or Cupo?

- General regulations- General principles applicable to tax and financial relations

- Committees• The Economic Agreement and / in Europe- The Economic Agreement conflicts

• Conclusion

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3. WHERE ARE WE?

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3.1. EUROPEAN UNION

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3.2.

SP

AI

N

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3.3. State of Autonomies

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3.4. BASQUE COUNTRY EUSKADI

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4. Starting, in few clicks

Spain: 5 co-taxation powers, or entities with tax capacity (to create, and manage, collect, administer, etc tax rules): 1. The State 2. The Foral Community of Navarre 3. The Historical Territory of Álava 4. The Historical Territory of Bizkaia 5. The Historical Territory of Gipuzkoa

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In Spain, the State collects and distributes in function of each one needs.

The Basque Territories have a special power in taxation and finance. It is an autonomous state with its own.

Alava, Bizkaia and Gipuzkoa, each one of them, collects and manages their system.

Starting, in few clicks

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WHY THIS DIFFERENCE? Spain is not a federal state It is an “autonomic” state, where:

- The State has great power, specially in fiscal and tax themes.

- In general, it is fear; fear to autonomy, fear to the different, fear to someone that does not want to remain into the State.

In few clicks…

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In few clicks…- Because of this, some peripheral

autonomies appeal to Historical Territories rules (fiscal rules).

- In Spain rule system, Historical Territories rules are only regulations , no proper laws .

- Everyone (with legitimate right) can appeal foral rules.

- And everyone appealed them.

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- Appeals make that rules from Alava, Bizkaia and Gipuzkoa were insecure and the situation was unstable (in an economic context).

- The solution: protecting foral rules.

- How?

Putting the foral rules in the same range or level that state laws governing

financial matters.

In few clicks…

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II. THE ECONOMIC

AGREEMENT

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5. THE ECONOMIC AGREEMENT

http://www.adconcordiam.net

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Computer animation

http://www.adconcordiam.net/en/

resources/computer-animations

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II. The Economic

Agreement and / in Europe

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Since Spain joined the European Union (1986) it interiorized what “being

European” means.

This means respecting community principles, complying with European

regulations and applying the necessary procedures in the event of infringement.

6. The Economic Agrement and/in Europe

6. 1. In short

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The Economic Agrement and/in Europe

Furthermore, joining the European Union also means integrating all its internal administrations both State and substate.

In this sense, we should have in mind the fact that the Spanish State is a decentralized one, comprising 17 Autonomous Communities, each one with its own functions and competences.

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The Autonomous Basque Country and Chartered Navarre Communities stand out among them, with their constitutionally acknowledged competences in tax matters, which the rest of Autonomous Communities lack.

The instrument, which constitutionally, statutorily and legally regulates tax and financial relationships between the Basque Autonomy (Euskadi) and the State is the Economic Agreement.


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Historically speaking it is a deeply rooted tool and a key institution in the current self-governing Basque Autonomy.

Nevertheless, it should be clarified that it is the Historical Territories comprising the same (Araba, Bizkaia and Gipuzkoa), which really hold this taxation competence as a Historical Right.


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The Historical Territories have been regulating different taxes differently from the rest of the State using this taxation

competence, resulting in complaints and claims from neighbouring Autonomies

and a series of social agents.


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Furthermore, the Foral rules have formal regulatory status within the regulation framework of the State of Provincial Regulations, despite the fact that Provincial Tax Regulations should be regulated by regulations with law status.


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Jurisdictionally speaking this fact meant (until the reform introduced by Organic Law 1/2010) that the Provincial Tax Regulations could be appealed against in ordinary courts (i.e. administrative law jurisdiction) by anyone who felt violated by the same.

Thus active legitimisation was extensive with the resulting litigation in relation to the Foral Tax Regulations and Economic Agreement in general.


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6.2. Basque institutional framework:

EUSKADIBasque Country

Spanish state

La Rioja

Castle & Lion

Catalunya …

Ara

ba

Biz

kaia

Gip

uzk

oa

Local govermments

… … …

…

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6.2. Basque institutional framework:

EUSKADI Basque Country

Historical Territory ofAraba

Historical Territory of

Bizkaia

Historical Territory of Gipuzkoa

Legislative:Gener

al Meetings

Executive:Foral

Deputations

Competences : tax and financial system; education, health, police…

Legislative:Gener

al Meetings

Executive:Foral

Deputations

Legislative:Gener

al Meetings

Executive:Foral

Deputations

Legislative:Legebiltzarra

Executive:Jaurlaritza

6.3. Conflict over the Economic Agreement

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Internal conflicts

Economic Agreement

vs. State law

Historical Territories rules

problem

External conflicts

Economic Agreement as a fiscal system in

EU law

HHTT rules application as

State aids

Joint Committee on the Economic

Agreement

Law Coordination and Evaluation

Committee

Board of Arbitration of the

Economic Agreement

Appeals

Rules Laws

Recurrent legitimating is limited

Recurrent legitimating

is wide:“legitimate interest”

AZORES case

AG Kokott conclusions

STJUE 2008

“Fiscal vacancies”

SSTJUE

EU Commission

6.3.1. Conflict over the Economic

Agreement

Internal conflicts

Economic Agreement vs.

State law

Historical Territories foral rules problem

Joint Committee on the Economic Agreement

Law Coordination and Evaluation Committee

Board of Arbitration of the Economic Agreement

Appeals

Rules Laws

Recurrent legitimating is

limited

Recurrent legitimating

wide:“legitimate interest”

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6.3.1. Conflict over the Economic

Agreement

Internal conflicts

Historical Territories foral rules problem

Rules

Laws Recurrent s legitimating is

limited:

Recurrent legitimating wide:

“legitimate interest”Legislative: General

Assemblies

- Prime Minister- Ombudsman- 50 Deputies - 50 Senators

- Executive body - Legislative Assemblies of the Autonomous Communities

® rules have a very broad legitimacy of a regulatory nature, ®which allows anyone with a legitimate interest to appeal.

Regulated ALL tax system !!!

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It means that anyone who feels minimally affected or damaged by a foral rule may appeal.

What are the legal arguments?

Because the Foral Rules, the Economic Agreement fits into the Spanish state and its laws.

That these Foral Rules fit in Spain, but not fit into the European Union.

Conflict over the Economic

Agreement

Internal conflicts

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"shield“ of economic Agreement:

the legal protection of foral rules.

That is, have sought ways that are not "that easy" actionable.


Agreement

Internal conflicts

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Organic Law 1/2010 of 19th February : amending two organic laws:

OL of the Constitutional Court OL of Judiciary Power

▪ known as “shielding” ▪ understood as the Economic Agreement ‘shield’ in relation to ordinary jurisdiction to prevent its continuous ‘litigation’


Agreement

Internal conflicts

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Thus, today it is the Constitutional Court which should be aware of appeals lodged against the Foral rules Tax Regulations, with the reduction of active legitimisation this implies.

Therefore, jurisdictionally, at the moment foral tax rules are protected from the internal point of view.


Agreement

Internal conflicts

The Economic Agreement and /in

European Union

External conflicts (1)

1. EU’s only relations are with STATES

2. Before EU, the representation is Spain

3. If Historical Territories do not carry out, Spain answer s for it, EU demand to Spain (not interference principle)

First, some ideas:

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- Although the Agreement came about and is exercised within an internal or state regulation context, nevertheless today, the fact of Spain being a European Union member is also affecting it legally.

- The conflicts arising in recent times as to whether the contents are legitimate from the point of view of European Law demonstrate this.

- These conflicts have been going on and settled at the judiciary headquarters.


European Union


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European Union Law neither intervenes nor pronounces on how competences should be distributed for tax legislation in Member States, since it responds to the community principle of internal institutional, procedural and procedure autonomy.

And likewise, this Law ends up affecting the specific use of internally established taxation regulations, regarding their legal contents.


European Union


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For this reason, the influence of European Union Law on the exercising of Basques Historical Territories regulatory competence on taxation is inevitable today:

1.This influence is determined in that the European Commission and Court of Justice of the European Union directly exercise the function of enforcing respect for community principles on the matte, each one in their respective spheres.

2.European Union Law is the origin and/or derived from European institutional decisions, conditioning the interpretative and applicable task of national courts.

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The law of the European Union is above the law of the Member States.

Means that all the rights of states are below the European Union law.

Also the Spanish law, and of course the Law of the Autonomous Communities and of the Territories.


European Union


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Thus, before the breach (or alleged breach) of a foral rule, anyone who is aggrieved can appeal to the courts of justice.

These courts are those of a member state that can then be national and European judges (first instance).

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Economic Agreement

Foral tax Rules

Spanish law

European Union law

√

x


European Union


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The European Union objective: the free movement of goods, labor and capitals.

That's a fair competition between states (including companies in the States).

That may not help some companies more than others.


European Union


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Economic Agreement as a fiscal system in EU law

The Economic Agreement and

/in European Union

Historical Territories rules application as illegal state aids


CJEU 2099.09.09

CJEU 2011.06.09

EU Commission

CJEU 2011.07.28

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The Economic Agreement and /in European Union



EU law

Historical Territories foral rules application

as state aids

Economic Agreement is recognized in EU

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European Union

External conflicts

(2)


Historical Territories rules application as

state aids

AZORES case


STJUE 2008.09.11


STPI 2099.09.09

STJUE 2011.06.09

EU Commission

“Autonomy triple test”

“Ins

titut

iona

l

“Pro

ceim

enta

l

“Eco

npom

ic

Autonomic system different to state is available in EU


STJUE 2011.07.28

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AZORES case



STJUE 2008.09.11

“Autonomy triple test”

Inst

itutio

nal

Pro

ceim

enta

l

Eco

npom

ic

Autonomic system different to state is recognized in EU

The Economic Agreement and

/in European Union

STJUE

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The Economic Agreement and /in European Union



EU law

Historical Territories foral rules application

as state aids


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Conclusion

The Agreement model has undoubtedly contributed to the development and progress made by the Basque Country since the early 80's.

It served to cope with crises that hit hard before the BAC (at ´80) and should also help to overcome the current crisis.

The model is not an island in the territorial model of the state.

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By contrast, the Agreement regulates its suiting and harmonization and respects the principle of solidarity.

The effects of unilateral risk model in bad times.

The fall in tax revenues is not compensated in the model for increased funding (via lower quota) …

Conclusion

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The Economic Agreement is ours.

No one gives it, is only recognized.

Because is our story. Is our ancients legacy.

It is our legacy for our sons and daughters. Like to be Basque.

In conclusion

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Susana SERRANO [email protected]

ESKERRIK ASKO!

THANK YOU!

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BIBLIOGRAPHY & DOCUMENTATION

- AD CONCORDIAM

- STPI 2099.09.09

- STJUE 2011.06.09

- STJUE 2011.07.28

- SERRANO GAZTELUURRUTIA, Susana: The Basque Economic Agreement before the Community Judge: Using court procedures to deal with Provincial Tax Regulations within the European legal framework. Current situation and future perspectives, doctoral thesis, in process of publication, DFB/BFA.

- ZUBIRI ORIA, Ignacio: The economic Agreement between the Basque Country and Spain; principles, characteristics and economic implications , Ad Concordiam, Bilbao, 2010.

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EU documentation:

- Fiscal Autonomy, Investment Funds and State Aid: a follow-up

- The Gibraltar judgment and the point on selectivity in fiscal aids

- European guidelines for federal member states granting fiscal competences C.Q. tax autonomy to sub-national authorities

- State aid and autonomous regions: the ECJ`s ruling in the Basque Country case

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Links

Juntas Generales de Bizkaia Juntas Generales de Gipuzkoa Juntas Generales de Alava Departamento de Hacienda y Finanzas de la Diputación

Foral de Bizkaia Departamento de Hacienda y Finanzas de la Diputación

Foral de Gipuzkoa Departamento de Hacienda Finanzas y Presupuestos de

la Diputación Foral de Alava Consejería de Economía y Hacienda del Gobierno Vasco Junta Arbitral del Concierto Económico (Gobierno Vasco) Órgano de Coordinación Tributaria de Euskadi (OCTE) Statistics of the Basque Country (EUSTAT) Instituto de Economía Pública (EHU-UPV) Hacienda del Gobierno de Navarra

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Links

Ministerio de Economía y Hacienda (MEH) Junta Arbitral del Concierto Económico (Ministerio de

Economía y Hacienda) Consultas de la Comisión de Coordinación y

Evaluación Normativa (Ministerio de Economía y Hacienda)

Agencia Estatal de Administración Tributaria (AEAT) Base de Datos Económicos del Sector Público Español

(BADESPE) Instituto de Estudios Fiscales (IEF) National Statistics Institute (INE) Barcelona Institute of Economics (IEB) Comisión Nacional del Mercado de Valores (CNMV) The official website of the European Union Statistics Service of the European Union (EUROSTAT) IMF -- International Monetary Fund Organisation for Economic Co-operation and

Development (OCDE) International Bureau of Fiscal Documentation (IBFD)

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