European Union: Debate on circumventing national vetoes on EU taxation policies gathers steam

December 14, 2017

Every year the European Commission adopts its work programme setting out the list of actions it will take in the year ahead. The work programme informs the public and the EU's co-legislators (Council of the EU and European Parliament) of the Commission's political commitments to present new initiatives, withdraw pending proposals and review existing EU legislation.

The focus of the Commission's work programme for 2018, presented on October 24 2017, is two-fold. First, it sets out a limited number of targeted legislative actions to complete its work in priority policy areas over the coming months. The Commission also stated that it will table all legislative proposals no later than May 2018, this in light of the fact that the Juncker Commission's five-year mandate ends in November 2019, while the present legislature of the European Parliament ends in June 2019.

Secondly, the Commission's work programme presents a number of initiatives that have a more forward-looking perspective up to 2025, and reflect the debate kick-started by Commission President Jean-Claude Juncker's White Paper on the Future of Europe and his September 2017 State of the European Union (SOTEU) address.

"To be stronger, Europe also has to be more efficient. It must be able to act more quickly and decisively in a range of policy areas so that citizens and businesses benefit more immediately from EU law. The Commission will therefore outline how the EU could make use of the so-called 'passerelle clauses' in the current treaties which allow us to move from unanimity to qualified majority voting in certain areas if all Heads of State or government agree to do so. We will do this for internal market matters, as well as for certain foreign policy decisions to ensure the Union is a strong global actor with real weight in the world, while paying particular attention to the consistency and efficiency of these decisions," Juncker said.

As part of the Commission's 2018 work programme's drive towards more efficient EU single market law-making, the Commission will present "with a 2025 perspective" in Q3 of 2018 a communication (non-legislative, strategy outline paper) on the possibility of further enhancing the use of qualified majority voting and the legislative procedure in internal market matters on the basis of Article 47(7) of the Treaty of the Functioning of the EU, i.e. the 'passerelle' to which Juncker referred in his SOTEU.

Sven Giegold, German member of the European Parliament (MEP) for the Greens told EU Tax Commissioner Pierre Moscovici on November 28 2017 at the European Parliament, during the final public hearing of the Panama Papers special committee on the Paradise Papers, that "lots of things are blocked in the Council (…): it's a blockade. So what do we do now? Mr. Juncker – and, you repeated it today – opened the debate on the 'passerelle' clause to majority voting. This is totally unrealistic because it needs unanimity to move to majority voting and the same member states blocking everything will then be blocking that as well." Giegold went on to say: "I think you have one tool in your toolbox which you haven't used yet. Why don't you propose the next steps according to Article 116 TFEU which this Parliament has proposed several times. Then you move taxation into majority voting, and we are waiting for that proposal."

Moscovici responded to Giegold that the Commission is looking at the possibility of this legal base and that it will put forward proposals over the next few months. Moscovici added: "We have talked a lot about enhanced cooperation and in the past maybe it hasn't worked but I think we have to harness our tools and be successful."

Enhanced cooperation is another alternative to the present standard Council unanimity voting on tax matters. A minimum of nine participating EU member states in favour of introducing an EU proposal, only among themselves, can do so through enhanced cooperation. The first experiment with enhanced cooperation in the area of taxation is with the EU financial transaction tax, but this has so far proved to be an extremely difficult process going on for five years without a final agreement in sight. The formal EU law requirements for enhanced cooperation are laid down in Article 20 of the TEU and Article 326-334 of the TFEU.

It remains to be seen whether all the EU member states will be prepared to give up more fiscal sovereignty in the coming years, as part of sweeping EU institutional reforms to facilitate EU tax law-making. MEPs for their part see great opportunity in an enhanced role for the European Parliament as co-legislator for the EU on tax policy. The political parties' group coordinators in the European Parliament agreed unanimously on November 28 2017, before the final public hearing of the PANA special committee, to organise a plenary vote by the end of this Parliament (June 2019) for the creation of a permanent EU Parliamentary investigative committee on tax avoidance, tax evasion and money-laundering, or, an EU Parliamentary standing sub-committee on tax policy, similar to what exists in the US Congress.