The Constitutional Court has recently issued a ruling declaring several points of Royal Decree-Law 3/2016 unconstitutional. This decision is the result of research conducted at UIC Barcelona led by Jordi de Juan, lecturer of the Faculty of Law and director of the Bosch i Aymerich Family Business Chair, whose studies have provided the foundation for arguments now accepted by the Constitutional Court. The practical application of this legal research was assumed by the lecturer himself through the legal defence of this subject before the Constitutional Court.
The Court considered that the tax measures adopted, including the limitation to loss compensation or double taxation deduction, and the impaired portfolio tax reversal in Corporate Tax, violate Article 86 of the Constitution, to the extent that its regulation by decree-law affects the duty to contribute to the maintenance of public expenditure. “This decision is a stumbling block for the public coffers, which the specialists estimate as being over €5,000 billion in tax savings and refunds,” said de Juan.
The systematic study of the fiscal problem which led to the ruling is due to several scientific articles published in academic journals. Among them stands out "The Waterproofing of Corporate Tax to the Decree-Law: The dubious constitutionality of Royal Decree-Law 3/2016, of December 2", published in the journal Nueva Fiscalidad, and "The controversial use of Decree Law in tax matters", published in the Revista Española de Derecho Constitucional.
Given the decision, Dr de Juan expressed his satisfaction with the ruling, being critical of the abusive use of the Royal Decree-Law, which “perverts the principle of tax legality”. He also expressed his rejection of the limitation of effects set in the judgement, considering that “it lacks legal basis in our constitutional jurisdiction.”
“This judicial resolution is a good paradigm of the collaboration and dialogue that must exist between the universities and civil society, between basic research and applied research, in which the university researches and society applies this research,” concluded the expert.
