Cristóbal Montoro, a minister without a duty of secrecy

The Montoro case has opened a complex debate about whether a finance minister has the right to access confidential taxpayer data handled by the Tax Agency (AEAT), reports prepared by court order, or whether he can issue orders for specific inspections. The Tarragona judge investigating former minister Cristóbal Montoro for allegedly being part of a criminal plot within the Ministry of Finance, Rubén Rus, has relied on the opinion of the chief anti-corruption prosecutor, Alejandro Luzón, to state that the minister, as the hierarchical superior of the director of the AEAT, has full authority to access this type of information.

However, the prosecutor in the case, overruled by her superior, maintains that up to five crimes may have been committed due to the transfer of classified and confidential information from the Agency to Montoro's team at the Treasury. Several victims who learned that their data ended up on the minister's desk maintain the same theory. One of them, former vice president Rodrigo Rato, has filed an appeal against the judge's decision not to investigate Montoro on this matter, in which he lays down in black and white how, by whom, and to what extent a person's private data can be accessed. The Treasury technicians' union, Gestha, supports this view.

An appeal states that tax data can only be accessed by those involved in the tax file.

The judge now has the option of reconsidering his decision. Otherwise, it will be the Tarragona Provincial Court that will ultimately decide whether there is grounds to investigate the then-president of the Agency, Santiago Menéndez, Montoro, and his chief of staff, Felipe Martínez Rico, for revealing secrets. Menéndez received more than 100 emails containing this type of information from the AEAT, which he handed over to the minister.

The doctrinal question is whether Montoro, as Minister of Finance, had the right, by law, to know the tax details of politicians, journalists, athletes, and artists, regardless of their profession or origin. The chief prosecutor for Anti-Corruption delivered a harsh report to prosecutor Carmen García Cerdá in 2023, to which La Vanguardia has had access, in which he prohibits her from further investigating the emails seized in this case and detected by the AEAT inspector assisting him in this investigation. Luzón reproaches him for saying that "what he considers to be allegedly criminal actions by members of the Tax Agency are, in my opinion, nothing more than a reflection of the ordinary conduct of this public entity in its communications and accountability system." His thesis is that the president of the AEAT is also Secretary of State for Finance, and therefore, there can be no disclosure of data to his hierarchical superior, who would be the minister. Furthermore, he maintains that for disclosure to have occurred, Montoro would have had to have used that information or provided it to third parties, something that, in his opinion, did not happen. Finally, he clarifies that the reports sent to Montoro's team on legal cases, such as those related to the Gürtel case or the Pujol case, were prepared by the judicial assistance and not by experts, and therefore do not require such a duty of confidentiality.

"It is striking that both the reporting to superiors and the requests from these to their subordinates are always carried out through the corresponding official emails, which does not seem to reflect any intention of concealment." In that letter, by the way, Luzón takes the opportunity to express his concern about the "limited" evidence in the case, which revolves around the Treasury's modification of legislative reforms in favor of companies after payment to the Economic Team firm, founded by the minister himself.

Luzón's position, adopted by Judge Rubén Rus, has been challenged in several appeals that must now be resolved. The first argument is that the General Tax Law establishes that only those "called to intervene in the tax file" may access a taxpayer's data. Neither the minister nor his chief of staff were authorized to do so. "The existence and circulation of such information outside the strict legal channels constitutes a violation of the duty of functional confidentiality and the principle of tax confidentiality," Rato's appeal states. Regarding the AEAT's dependence on the ministry, he emphasizes that "it has nothing to do with the scope of personal data protection and secrecy." Furthermore, he points out that under no circumstances is the "political authority" empowered to directly access individual files, "under the risk of engaging in illegitimate use of tax information."

A leak about Rato ended up in the office of the Treasury Secretary.

In the case investigating former minister Cristóbal Montoro, more than a hundred emails containing confidential matters handled by the Tax Agency (AEAT) have surfaced. This information reached the head of the Treasury. One of the emails included in the case is the communication to Montoro's team that the Tax Agency had opened a "reserved investigation" into an alleged leak by Margarita García-Valdecasas, then head of the National Fraud Investigation Office (ONIF), to her husband. Following a news report published in La Vanguardia, the AEAT management discovered that García Valdecasas had sent a report on former Vice President Rodrigo Rato to her husband, Alejandro Pérez Calzada, the former president of the Swiss bank Mirabaud in Spain. The AEAT informed those close to Montoro that an internal investigation had been opened to determine what happened. The ongoing debate is whether the Agency could have provided this type of information to the minister. It turns out that among all the communications sent to Montoro's people, the details of the tax file on Rato and the preparation of an entry and search against him were also detailed.