Tax Treaty Case Law around the Globe 2024

36.1. Introduction

On 22 May 2023, the Spanish Supreme Court rendered its decision in the Laurate Netherlands BV (formerly, Iniciativas Culturales de España) case on access to an MAP when the Spanish GAAR was applied. The judgment is directly connected with a previous one already discussed in this collection, the Supreme Court judgment of 22 September 2021, SGL Carbon Holding, rec. 6429/2019. In fact, this case represents a reaffirmation and clarification of the judgment in the Carbon Holding case, with a few new nuances that justify dedicating a new commentary to Iniciativas Culturales.

Carbon Holding referred to the DTC between Spain and Germany (2011), which in article 28 allows the contracting states to apply their domestic anti-avoidance rules, somehow limiting access to the MAP since, in its paragraph 2, it explicitly mentioned that in such cases, if there is double taxation, the competent authorities of one country may consult the competent authorities of the other country in the context of the legislative MAP provisions of the DTC. Iniciativas Culturales, however, involves two DTCs (Spain-Luxembourg (1986), Spain-Netherlands (1971)) that do not have any specific provision sim...