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6.5 Work is ongoing in the OECD to address profit shifting by multi-national companies and erosion of the corporate tax base and the OECD will be presenting a comprehensive action plan for tackling these issues to the G20 in July 2013.

6.6 The EU will also have an important role in taking forward the recommendations from the action plan, particularly with regard to issues where they have already carried out work through bodies such as the EU Code of Conduct group.

52 Review of the Balance of Competences between the United Kingdom and the European Union: Taxation 6.7 In addition to tax avoidance, offshore tax evasion is also a global problem and is therefore most effectively tackled through a global solution. Recent developments in international tax transparency provide a real opportunity to secure a single global standard in exchanging tax information. The Government’s approach has therefore been to press for a global standard in tax transparency through the G8 and the G20, with the EU fully supporting this process, before looking to implement this new standard in the EU. This approach is reflected in the recent May 2013 European Council conclusions.

Upholding unanimity voting on tax 6.8 Unlike many other policy areas, taxation is still subject to unanimity voting and is the preserve of Member States, with the European Parliament not having any decision making authority.

6.9 Having evaluated the pros and cons of unanimity voting and of the alternatives, respondents favoured the retention of unanimity voting on taxation. One area where respondents noted with concern that unanimity, and thus Member State control, could be undermined was where tax measures are contained in primarily non-tax dossiers which are subject to QMV.

6.10 To move from unanimity voting to QMV for measures which are primarily about taxation would require Treaty change that all Member States must agree. As such, the greater risk for respondents was on the potential loss of unanimity voting, and the inclusion of ancillary tax or fiscal measures in non-tax EU dossiers and so on a non-tax legal base.

6.11 For example, the European Emissions Trading Scheme Directive1 was amended on an environment legal base2 and the Eurovignette Directive3 was updated on a transport legal base4, but both contained fiscal elements.

6.12 During the course of discussions stakeholders expressed concern at the inclusion of tax or fiscal measures in non-tax dossiers. For example, in evidence the Institute of Directors argued that “it is absolutely wrong to slide from unanimity to qualified majority, when a tax measure is incidental to a non-tax measure”.

Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme 1 for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/ EC.

Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community.

Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy 3 goods vehicles for the use of certain infrastructures.

Directive 2006/38/EC of The European Parliament and of the Council of 17 May 2006 amending Directive 4

–  –  –

Enhanced co-operation 6.13 The Treaties provide for “enhanced cooperation”. Where Member States cannot agree to adopt a proposal, the enhanced co-operation procedure allows nine or more Member States wishing to take forward the proposal to apply to do so5, providing the requirements set out in the Treaties are met6. This includes respecting the competences, rights and obligations of those Member States which do not participate in it.

6.14 In light of the process underway to strengthen the Economic and Monetary Union through closer financial, fiscal and economic integration (which will be the subject of a separate report in Semester 4 of the review), several respondents raised concerns about the use of enhanced co-operation on taxation. Respondents questioned the appropriateness of using enhanced co-operation on taxation and whether there were appropriate safeguards in place to protect non participating Member States. One respondent noted that enhanced

co-operation on tax:

“could well become the main competence concern the UK will have to face: having only a limited possibility of intervening in the process of enhanced cooperation, which undermines the value of unanimity” 7.

6.15 All respondents broadly concluded that they would like greater clarity of how the safeguards in the Treaty can be enforced. Some respondents went further and favoured reforms to the process of authorising enhanced co-operation with additional safeguards to protect the interests of non-participating Member States. A number of respondents noted that the Treaty provisions on enhanced co-operation had been rarely used and there was relatively little experience on the process and how the safeguards would operate in practice.

The appropriateness of using enhanced co-operation on tax 6.16 The TFEU does not exclude any area of taxation from the use of the enhanced co­ operation procedure8. However, a number of stakeholders felt that tax at the EU level was “too close” to the functioning of the internal market for a subset of Member States to take forward a proposal without causing damage to the internal market. Comparisons were drawn between the two previous proposals on which enhanced co-operation has been used: on EU patents and on divorce law, both of which respondents identified as less fundamental to the functioning of the internal market.

Respecting the competences of non-participating Member States 6.17 During the course of discussions stakeholders also questioned the process of approving enhanced co-operation. It was noted that once Member States make a request to take forward a proposal under enhanced co-operation the voting by all 28 Member States to authorise enhanced co-operation is done under QMV rather than unanimity. Some stakeholders felt this undermined the veto on taxation measures and left non-participating Member States open to the possibility of being affected by taxation measures with extra territorial effect.

54 Review of the Balance of Competences between the United Kingdom and the European Union: Taxation 6.18 Although the Treaty requires that “any enhanced cooperation shall respect the competences, rights and obligations of those Member States which do not participate in it” 9, respondents questioned whether and to what extent the process of enhanced cooperation does fulfil this requirement and the mechanisms available for ensuring this requirement is met.

6.19 Using the enhanced cooperation on the FTT proposal as a case study, respondents questioned whether the process of enhanced cooperation satisfactorily protected the rights of non-participating Member States. A number of respondents including the British Bankers Association, the Institute of Directors, the Northern Ireland Finance Ministry and City UK felt that although the UK was not a participating Member State, the FTT may still have negative impacts on the UK (see Chapter 5).

6.20 One respondent concluded of the protections in the Treaty that “their interpretation and practical implementation, as well as the scope of their judicial review, needs clarification” 10.

6.21 Other respondents went further, suggesting that additional safeguards were needed to the process. For example, the Institute of Directors suggested that: “the enhanced cooperation requirement to ‘respect the competences, rights and obligations of those Member States which do not participate in it’ needs to be strengthened to give any non-participating state a right to block an enhanced cooperation measure if it would have any but the most trivial effect on its interests”.

6.22 Another respondent noted that “whilst this alignment of taxation systems may be entirely reasonable there should be a requirement for Member States agreeing joint taxation measures to fully evaluate the impact on all other Member States” 11.

6.23 This respondent felt that where measures were found to create distortions to the internal market then the measure must be challenged.

6.24 On 18 April 2013 the UK submitted a legal challenge to the CJEU against the decision authorising enhanced cooperation on a FTT. The case focuses on the extraterritorial aspects of the proposed tax.  

Annex A:

Submissions received to the Call for Evidence

The following formal responses to the call for evidence were received:

• Anzhela Yevgenyeva, Oxford University Centre for Business Taxation (OUCBT) • British Bankers Association • Charity Finance Group and the National Council of Voluntary Organisations • Chartered Institute of Taxation (CIOT) • Department for Finance and Personnel, Northern Ireland Executive • HM Government of Gibraltar • Imperial Tobacco • Institute of Chartered Accountants of England and Wales (ICAEW) • Institute of Directors • Investment Management Association • James Lynch-Staunton – individual • National Farmers Union (NFU) • PricewaterhouseCoopers (PWC) • Scotch Whisky Association • The Law Society of England and Wales • The Wine and Spirit Trade Association • UK Music 58 Review of the Balance of Competences between the United Kingdom and the European Union: Single Market: Synopsis In addition to the formal submissions to the taxation Call for Evidence, the following response to

other reviews have been considered:

• City of London Corporation – submitted to the Single Synoptic Review.

The following interested parties also asked for their relevant existing work to be considered:

• Dr Christiana HJI Panayi, Centre for Commercial Law Studies, Queen Mary, University of London – “The Common Consolidated Corporate Tax Base and the UK”, Institute for Fiscal Studies, 2011.

• City of London – “A financial transaction tax – review of impact assessment”.

• City of London Corporation and the City UK, Report prepared for the International Regulatory Strategy Group by London Economics “The Impact of a Financial Transactions Tax on Corporate and Sovereign Debt”.

• Dr Tom O’Shea, Centre for Commercial Law Studies, Queen Mary, University of London – “Balance of Competences on Taxation” (presentation), first presented at the Avoir Fiscal EU Tax Conference 2013.

Annex B: Engagement Events 59

Annex B:

Engagement Events To help inform the Taxation Report a number of meetings were held with interested parties to explore the issues raised in the Call for Evidence document.

These meetings included:

1 February 2013 – Balance of Competence Taxation Seminar at HM Treasury

External attendees:

Barclays British Bankers Association British Petroleum (BP) Centre for Business Taxation, Said Business School, Oxford University Centre for Commercial Law Studies, Queen Mary University of London Chartered Institute of Taxation (CIOT)


Ernst and Young Institute of Chartered Accountants of England and Wales (ICAEW) National Farmers Union (NFU) PricewaterhouseCoopers (PWC) Schroders The Law Society of England and Wales Tax Law Review Tax Payers Alliance 15 February – Meeting with Dr Tom O’Shea The Centre for Commercial Law Studies, Queen Mary, University of London 60 Review of the Balance of Competences between the United Kingdom and the European Union: Single Market: Synopsis 7 March – Meeting with Confederation of British Industry 25 March – Meeting with officials from Jersey and Guernsey During the course of the Call for Evidence period the Balance of Competences Review was also discussed with interested parties including businesses, academic institutions, the Devolved Administrations, other Member States, and the European Commission as part of pre-standing meetings.

Annex C: Other sources used to inform the Taxation Report 61

Annex C:Other sources used to informthe Taxation Report

10, Issue 3, 2010, pp. 71-80.

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