The conservative wing of the TC says that the tax on large fortunes has "ventilated" the "democratic rule of law"

They consider that the tax is a "frontal attack" on the financial and political autonomy of the autonomous communities

The four magistrates of the conservative wing of the Constitutional Court (TC) consider that the tax on large fortunes, which taxes the net worth of individuals with an amount greater than 3 million euros, is a "frontal attack on financial autonomy and policy of the autonomous communities" and, consequently, has "aired" the "very validity of the democratic rule of law."

This is how Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel and César Tolosa have spoken in a private opinion - to which Europa Press has had access - that they have signed against the decision of the progressive majority of the court to endorse the tax on large fortunes and reject the appeal presented by the Government of the Community of Madrid chaired by Isabel Díaz Ayuso.

The four accuse the other seven of having "tiptoed through the doctrine of the TC" and assure that the "lack of argumentation" of the sentence approved by the majority is "so evident that their response is in itself present in their eloquent statements." silences."

In his opinion, the "latent lack of reasons" to reject the appeal "is made up for" with "apodictic statements" that "must be assumed without further ado," when "the only truly verifiable fact" is that the tax on large fortunes " "has given birth to a 'new and different' reality that is in no way contracted (...) neither to the subject or material sector to which the initiative belonged, nor to the object of the amended text."

The magistrates assure that said tax represents a "frontal attack" on the financial and political autonomy of the autonomous communities. And they consider, in turn, that it represents a "contempt for the democratic principle, the rights of political representation of minorities and the principle of tax legality" due to the way in which the legislative initiative was approved.

On this point, they emphasize that the way of introducing this "innovative" initiative in tax matters has "undermined the essence and purposes of democratic parliamentarism and has degraded, to the point of rendering it void, the principle of financial legality (in this case, in its form of tax legality), so hard won by citizens over time".

In 51 pages, they explain that "what was in question after the approval of the contested tax was something more than the mere exercise of harmonizing powers by the State, something more than the possibility of amending the text of the legislative initiatives being processed or something more than the simple prospective application of a new legal provision after its entry into force".

"What has been aired in this matter has been the very validity of the democratic State of Law, in which the law must be only the expression of the true popular will and in which all public powers must be subject, equally than citizens, to the Constitution and to the rest of the legal system," they add.

For the four signatories, what the Constitutional Court had before it with the appeal of the Government of Díaz Ayuso "was the correct application of the rules of the game of democracy, specifically, respect for the instruments and procedures related to the interference of the State in the financial and political autonomy of the autonomous communities".

In this sense, the dissenters emphasize that if the budget law is "prohibited" from the creation of taxes -- "precisely because of the limitations that its accelerated parliamentary processing causes in the amendment and debate procedures" --, " "On what constitutional basis can the approval of a new tax be admitted by incorporating it into the text of a legislative initiative in progress (on a different subject and with a different purpose), with the greater restriction that this generates in the amendment and debate procedures?" .

However, they emphasize that "the most serious thing" is that the majority's ruling has "allowed" the autonomous communities to become "mere bodies executing state policies, without the possibility of articulating or defending their respective interests, marginalizing them to the role of simple amanuensis of state regulations".

According to what they point out, with the tax on large fortunes the Executive "would have curtailed the possibility of developing their own policies" for the autonomous communities, "which, in the case of the Community of Madrid, would have been an attraction for investment and a source of generation." of wealth, seriously compromised after state intervention", and "would have done so in a clear 'fraud of law'".

In line, they emphasize that "neither the Government is legitimized to adopt unilateral decisions, nor is it possible for the Cortes Generales to impose them, one or the other, outside the previously established channels and instruments."

QUESTION ITS PROCESSING AND ENTRY INTO FORCE

The signatories denounce that the incorporation of the tax was carried out when the year was about to end because there was no "materially useful time period" for the recipients to be able to rearrange their financial situation and not cause them "damage that they had no control over." legal duty to bear".

Likewise, they insist that the tax, due to its "surprising" application, threatens legal certainty and the legitimate trust of citizens in the actions of public powers. They point out that if the legislator had specified the first accrual of the tax in the year 2023, as he had anticipated both to the recipients of the norm and to the rest of the legal operators, "no legitimate expectations would have been broken."

And they maintain that the "hasty" entry into force of the norm was "absolutely unpredictable for the recipients" of the law and that, furthermore, it "lacked the necessary justification to legitimize it."

Enríquez, Arnaldo, Espejel and Tolosa also emphasize that the tax on large fortunes was not part of the content of the bill for the establishment of temporary taxes on energy and credit entities and financial credit establishments admitted by the Board of the Congress in August 2022, but joined "almost three months later."

Thus, they consider that the temporary solidarity tax on large fortunes is "the poisoned fruit of a biased initiative." And they assure that the way in which this legislative initiative was articulated "has prevented, in a representative democracy like ours, the effective participation of minorities in the procedure for approving the law, altering the formation of the will of the Chamber , against the value of political pluralism and the right of political participation of citizens' representatives".

On the sidelines, they accuse the approved sentence of making an "introspective speech" because it has answered something that was not questioned in the appeal -- "the possibility that the State has of harmonizing taxes" -- instead leaving unanswered what For these magistrates it is the most important issue, that said harmonization was carried out "outside the instruments and procedures established for it."