If the penalty imposed, almost two million euros, is compared with that established, of 200 euros, in article 198 of the General Tax Law for any other tax other than VAT, in cases in which they are not presented within the deadline self-assessments without harm to the Administration, the disproportion is evident . Therefore, the TS considers that the lower court ruling is correct and that “it is possible to determine by a Court of Justice that the Administration has not observed the principle of proportionality in a case such as the one examined, even complying with the literal nature of the criminal law.” . And he adds that "EU law prevails over national law, so that it can remain inapplicable with or without raising a preliminary ruling."
The magistrates add that the raising of the question of unconstitutionality that the State's lawyer claimed as mandatory is not appropriate because " we do Whatsapp Database not appreciate doubts of constitutionality in the provision and because the TC itself has repeated" that said question would only proceed when the unknown of if it complies with EU Law, because “only in such a case would we be faced with a legal norm applicable to the case.” If the CJEU determines otherwise, it becomes unnecessary to resort to the Constitutional Court .
Regarding the question of unconstitutionality, the Supreme Court clarifies that “it is not necessary to raise a question of unconstitutionality, in matters of a similar nature to the one prosecuted here: either when the sentencing Court sees no doubt that the norm with the rank of Law applicable to the case and on whose validity the ruling depends may be contrary to the Constitution, as in this case are arts. 170 and 171 of the VAT Law, in the applied sections – art. 35 LOTC-; well when, even though it appreciates them, it considers at the same time that the norm with the rank of law applicable to the matter could, in addition, be contrary to European Union Law .