Gibraltar should not wait for the exchange of information treaty with Spain
Let’s be consistent with EU legislation and ask for an immediate removal of Gibraltar from the Spanish list of tax havens (RD 1080/1991). According to Spanish legislation, a jurisdiction will be removed from this list if there is a treaty signed including a clause for the exchange of tax information.
We, supported by some tax professors specialized in international and European Law, defend that the existing EU Directives on exchange of information and cooperation for tax collection and administrative matters are applicable to Gibraltar. Therefore, Gibraltar must be removed from the list of Tax Havens by Spain.
The main arguments to support our thesis
1. Gibraltar is a jurisdiction, part of the EU as a territory of the United Kingdom in accordance with the EC Treaty.
2. EU Tax directives are fully applicable to Gibraltar, with the only exclusion of VAT and customs matters. Sentence TJCE 21/7/2005 KOSCHITZI C-30/04.
3. Gibraltar Government has an independent constitutional and administrative status from the UK. Gibraltar has got full legislative powers to regulate on tax matters as sanctioned in Cases T 211/04 and T 215/04 Government of Gibraltar and United Kingdom of Great Britain and Northern Ireland vs Commission of the European Communities.
4. There are two main European Directives to be invoked in support of our thesis of the efficacy of exchange of tax information in the European Union Council Council
- a) Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums.
- b) Directive 2010/24/EC of 16 March 2010 concerning mutual assistance for the recovery of claims Relating to taxes, duties and other measures.
5. Gibraltar complies with the main OECD regulations and directive and in particular those related to cooperative territories.
The argument to avoid the signing of a Treaty with Gibraltar continues to be the reference to the Treaty of Utrecht of 13 July 1713, and the claims from the Spanish Government of Gibraltar as part of the Spanish territory, once the UK had released its sovereignty.
Without entering into the emotions or political reasons behind this position, without invoking the universal acceptance of the UN decisions on decolonization and the rights to self government of independent territories, the fact that we all are part of the EU should be a definitive argument to remove Gibraltar from the list.
León Fernando del Canto
Abogado and Barrister
From Conference in the LLM of Taxation in Cadiz University