First legal blow to entities due to the banking tax. The National Court has rejected the precautionary measures requested by Bankinter, Sabadell and Cajasur, to suspend the banking tax, which has been applied since January of this year, until the Chamber began to study the merits of the appeal.
As confirmed by Sabadell himself as well as other banking sources, the judicial body has rejected both the precautionary measures and the request to send the matter to the Court of Justice of the European Union (CJEU) to evaluate its legality in the European regulatory framework. Both the sector's employers and other entities are also going to fight the legal battle to try to stop the tax, considering that it could endanger the smooth transmission of monetary policy measures. Among other points, they argue that the amount of the tax could not be proportional to the profitability of the entities and could end up affecting clients.
The tax was approved at the end of 2022 with the objective of taxing the main income that the bank has obtained in the last year and beginning to collect in 2023. The Government's objective is to collect 3,000 million euros between 2023 and 2024, 1,500 million euros every year. This new temporary banking tax is levied at 4.8% on the interest and commissions of all entities that invoice more than 800 million in 2019 and is limited to the activity that the entities carry out in Spain. The royal decree-law prohibits transferring the tax to consumers, but banks and the European Central Bank (ECB) have doubts that this imposition can be established. Until the lawsuit is resolved in the National Court, with an appeal to the Supreme Court, the affected entities will not be able to go to the Constitutional Court to enter into the merits of their constitutionality.
A few months ago, the Administrative Litigation Chamber of the National Court already rejected the precautionary measures requested by Repsol against the order of the Ministry of Finance that develops the law that collects temporary taxes for energy companies and banks.
In this case, the court already explained that the requested precautionary measure could not be accepted because the rule does not entail irreparable harm to the energy company, since if the appeal were finally upheld it would be a perfectly reversible situation through the return of what was paid. with the payment of the mandatory interest.
In that resolution it was argued that "the damages derived from the non-suspension will only mean submitting to the obligation to make the declaration in the manner provided for by the ministerial order." The justification of the National Court is that if the order and with it the law were suspended, “serious damage to the general interest would be caused by making it impossible to collect the tax.”
