THE DIFFICULTY IN RECOVERING MISAPPLIED TAXES IN THE DISPUTE OVER THE ONE-CENT HEALTH SURCHARGE IN SPAIN

After some preliminary issues raised by the Catalan Superior Court of Justice, on February 27, 2014, the European Union Court of Justice issued a preliminary ruling declaring that the tax on the retail sale of certain hydrocarbons, more popularly known as the centimo sanitario (the one-cent health surcharge), was contrary to European community law. This special tax allowed the autonomous communities to collect more than 13 billion euros while it was in effect between 2002 and 2012. In this analysis, we examine the possibilities for getting the amounts paid toward the centimo sanitario by purchasers of the products taxed during that period returned. Our analysis is based on the requirements of legal regulations and Spanish administrative practice in this domain, in particular, the procedure that must be followed and the documentation that must be produced. Our conclusion is that the degree of proof required in Spain is excessively difficult, not to say impossible, for the final consumer in too many cases, and that this affects individuals in particular. This situation may be contrary to European Community case law regarding the return of misapplied taxes, and for this reason, the internal actions that may be brought to remedy this state of affairs are laid out. Included are some recent judgements handed down in the Spanish dispute on the centimo sanitario, such as the judgement of the trial court judge in the Transportes Jordi Besora matter, who raised the preliminary issues.