La doctrina del TJUE sobre la compatibilidad de las medidas tributarias anti-abuso con el ordenamiento de la UE y el control jurisdiccional de la práctica administrativa a la luz de la misma

Abstract

In recent times, the Supreme Court’s cassation doctrine has intensified the objective of specifying both conceptually and applicably the different reaction mechanisms to elusive, unlawful or allusive behaviour by taxpayers, in contrast to an initial case law that considered this conceptual delimitation to be less irrelevant, given the need to provide the tax administration with effective regulatory mechanisms of reaction to such behaviour by taxpayers. The doctrine of the non-interchangeability of the powers of classification, conflict and simulation, regulated in articles 13, 15 and 16 of the General Tax Law, respectively, allows the correct exercise of the administrative regularising function to be specified in terms of the identification of the elements that define each of the reaction institutes against abusive, illicit or evasive behaviour and their necessary specification with the evidence, proofs and verifications carried out by the administrative action. In this order of considerations, it is interesting, convenient and necessary to relate Spanish administrative practice and case law doctrine with the abundant and consolidated, although not necessarily sufficient, case law of the CJEU, which has delimited and weighed up the scope of the exercise of administrative powers of reaction against abusive behaviour in cases of the exercise of fundamental freedoms. From this perspective, the role of the Supreme Court’s cassation doctrine and its role as the last national judge of EU law is key to ensuring the correct reception and application of the requirements derived from EU law.