The Supreme Court and the preliminary question

A commentary on the Order of 25 January 2010

Abstract

The Order of the Spanish Supreme Court of 25 January 2010 entails the first preliminary question before the ECJ ever submitted by a Spanish court in the field of direct taxes. In essence, the Supreme Court asks whether the freedom of capital movements implies the existence of an tax sparing clause in all double tax conventions among the EU Member States, whereby a resident of a State may credit the tax that he should have paid in another State but has not, due to an exemption or tax incentive.