Further discrimination of permanent establishments: tax incentive to maintain or create employment in Spain

Abstract

The Spanish 2010 General State Budgets Act contained an important innovation consisting of the incorporation in the Spanish tax system of a new tax incentive to maintain or create employment. The fact that this tax incentive is not applicable to permanent establishments (PE) raises the question of whether it constitutes an infringement of the non-discrimination principle that limits the freedom of establishment. In general, the principle of non-discrimination has had a significant impact on the Spanish tax system, mainly in relation to direct taxes and, in particular, on PE. The case we shall now analyse is an example of this type of discrimination, which is prohibited both under the non-discrimination of PE clause envisaged in double taxation treaties and pursuant to the Community freedom of establishment.