“Are the existing mechanisms and instruments available to the institutions of the EU sufficient to achieve effective harmonisation of Member States’ direct tax regimes?” A thesis submitted for the degree of Master in Letters (M.Litt.) September 2017 Jeremy N F Norman, MA, LLM, ADIT, Solicitor School of Law University of Dublin, Trinity College DECLARATION I declare that this thesis has not been submitted as an exercise for a degree at this or any other university and it is entirely my own work. I agree to deposit this thesis in the University’s open access institutional repository or allow the Library to do so on my behalf, subject to Irish Copyright Legislation and Trinity College Library conditions of use and acknowledgment. Signed by Jeremy N F Norman………………………………………………. Date.......................................... SUMMARY This thesis addresses the question of whether the existing mechanisms and instruments available to the institutions of the EU are sufficient to achieve the effective harmonisation of Member States’ direct tax regimes. In addressing this question I have examined a number of distinct areas. Competence in direct tax matters As the treaties do not confer competence in matters of direct tax on the EU, either on an exclusive or a shared basis, it follows that, in principle, Member States are free to frame their direct tax rules as they see fit. EU policy on direct taxes The desirability of a convergence or harmonisation of Member States’ direct tax systems has been recognised since the earliest days of the Community. I consider a wide range of material to illustrate the evolution of the Commission’s thinking in this area and its aims and goals. Despite changes in the terminology used, evidence suggests that harmonisation is still very much the Commission’s goal. ‘Hard’ law With the exception of the Anti-Tax Avoidance Directive, the directives implemented on direct tax matters thus far deal with specific and relatively uncontroversial matters. The Commission’s current ‘flagship’ proposal on direct taxes is the draft Common Consolidated Corporate Tax Base Directive (‘CCCTB’), which if implemented would represent a major piece of ‘positive’ integration and a substantial step towards tax harmonisation. ‘Soft’ law Though there has been much soft law on direct tax matters, the most important of which has been the Code of Conduct on Business Taxation, its non-binding nature means that compliance on the part of Member States is effectively voluntary. The case law of the Court of Justice In the mid-1980s the Court established the principle that Member States had to exercise their competence in direct tax matters consistently with EU law, and in particular with the four fundamental Treaty freedoms and the principle of non-discrimination. I examine the evolution of the Court’s jurisprudence in direct tax matters, its methodology, its self-imposed limitations on its competence and the range of ‘unwritten’ justifications it has developed in addition to the derogations expressly set out in the Treaty. Article 116 The EU’s ability to legislate on direct tax matters has been severely handicapped by its use of Article 115 of the Treaty as the legal basis for such legislation, as this requires Member State unanimity. There seems to be no legal reason why Article 116, which requires only qualified majority voting, should not be used as an alternative basis for direct tax legislation where the measures address to a significant extent distortions in the conditions of competition. The reason the use of Article 116 has not been seriously considered by the Commission thus far is likely be more political than a matter of legal principle. EU law and anti-tax avoidance Various soft law initiatives in this area have been launched by the Commission over the years. Matters took concrete form with the implementation of an Anti-Tax Avoidance Directive in 2016 as part of the EU’s response to the G20/OECD Base Erosion and Profit Shifting (‘BEPS’) project. This directive is more wide-ranging than previous direct tax directives and in part represents positive as opposed to negative integration. State aid The Commission’s use of its State aid powers to challenge tax-favoured schemes available to, or in practice only utilised by, a limited group of taxpayers have been relatively uncontroversial. Its use of these powers in the last three years to challenge Member States’ tax policies and administrative procedures in relation to a number of household name multinationals, on the other hand, has been extremely controversial. Ireland has lodged an appeal against the Commission’s ruling in the Apple case, though this is unlikely to be heard for some considerable time. EU VAT system as a model? The EU VAT system was introduced in the form of directives, which Member States were left to implement with a considerable discretion as to tax rates and exemptions, etc. I consider whether in the light of the experience with the VAT system it would be a good model to follow if an EU-wide direct tax system were to be introduced. Conclusions The Court’s case law and the application by the Commission of the State aid provisions has made some significant contribution towards tax harmonisation but it has necessarily been piecemeal, uncoordinated and ‘negative’ in nature. Soft law, being non-binding, is of only limited value. In my opinion the obstacles to the functioning of the internal market and distortions to the conditions of competition that result from the existence of 28 uncoordinated national tax systems can only be substantially eliminated through the introduction of a comprehensive EU-wide common tax system. Such a system would involve a common tax base (to eliminate tax base competition) and a limitation on the range of permissible tax rates (to ensure that tax rate competition was kept within reasonable boundaries). Whilst Member States might be allowed some latitude in the tax base, too much latitude can result in serious distortions as has been the case under the VAT regime. The CCCTB incorporates the principle of a common tax base, but it is apparent that its proposed consolidation of profits and their formulary apportionment between Member States is too much of a leap for most Member States at the present time. If it continues to be impossible to obtain the unanimity needed to pass legislation under Article 115, serious consideration should be given to using Article 116 as an alternative basis. CONTENTS ABBREVIATIONS Chapter 1 INTRODUCTION 1 Chapter 2 SCOPE AND OVERVIEW 4 Chapter 3 COMPETENCE AND DIRECT TAXES 11 Chapter 4 THE EU’S POLICY ON DIRECT TAX HARMONISATION AND SOURCES OF EU LAW - EU policy on tax harmonisation 17 - ‘Hard’ law 36 - ‘Soft’ law 54 - The Court’s case law 61 Chapter 5 AN ALTERNATIVE TO THE NEED FOR UNANIMITY – ARTICLE 116? 113 Chapter 6 EU LAW AND ANTI-TAX AVOIDANCE 118 Chapter 7 STATE AID AND DIRECT TAXES 130 Chapter 8 THE EU VAT REGIME – A MODEL OR A WARNING? 143 Chapter 9 CONCLUSIONS 152 BIBLIOGRAPHY 177 ABBREVIATIONS AG Advocate General BEPS Base Erosion and Profit Shifting CCCTB Common Consolidated Corporate Tax Base CJEU Court of Justice of the European Union, consisting of the Court of Justice and the European General Court (formerly the Court of First Instance) Commission European Commission Council Council of the European Union (commonly referred to as the Council of Ministers) Court/ECJ Court of Justice (informally referred to as the European Court of Justice) EC European Community ECOFIN Council Economic and Financial Affairs Council EEA European Economic Area EEC European Economic Community EGC European General Court (formerly the Court of First Instance) EU/Union European Union G20 Group of Twenty IBFD International Bureau of Fiscal Documentation OECD Organisation for Economic Co-operation and Development TEU Treaty on European Union (concluded in Maastricht in 1992) as amended by the Treaty on the European Union (concluded in Amsterdam in 1997) and the Treaty Amending the Treaty on European Union and the Treaty Establishing the European Union (signed at Lisbon in 2007). Treaty/TFEU Treaty on the Functioning of the European Union, being the Treaty Establishing the European Community (concluded in Rome in 1957) as amended by the Treaty on the European Union (concluded in Maastricht in 1992), the Treaty on the European Union (concluded in Amsterdam in 1997) and the Treaty Amending the Treaty on European Union and the Treaty Establishing the European Union (signed at Lisbon in 2007). The name of the 1957 Rome Treaty was changed by the 1992 Maastricht Treaty to the Treaty Establishing the European Community and by the 2007 Lisbon Treaty to the Treaty for the Functioning of the European Union. VAT Value Added Tax (and its equivalents) Note Unless otherwise stated, references to Articles are to Articles of the TFEU as amended. Chapter 1 INTRODUCTION In marked contrast to indirect taxes such as value added tax, direct taxes such as income tax, corporation tax and capital gains tax do not lie within the exclusive legislative competence of the EU. The reasons for this are explained in chapter 3. In the absence of EU competence, Member States are in principle free to operate their direct tax systems as they see fit, albeit this freedom is subject to a number of important caveats which are examined in the body of this work. The principle that Member States have legislative competence over their direct tax systems has resulted in a number of features that the Commission finds objectionable on the grounds that they represent impediments to the operation of the single market and the exercise of the four fundamental treaty freedoms. Again, these are examined in the body of this work. Since almost the earliest days of the Community there has been an ongoing debate as to whether a Community-wide harmonisation of direct taxes was (a) desirable, and (b) practicable.