EU: IP regimes under scrutiny in Europe

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

EU: IP regimes under scrutiny in Europe

van-der-made.jpg

Bob van der Made

The EU's Code of Conduct Group for business taxation is reviewing the existing intellectual property (IP) regimes in nine EU member states from a harmful tax practices viewpoint, particularly with regard to the point of substantial economic activity in the member state that grants the relief (the third criterion of the Code Group). At the request of the ECOFIN Council of June 20 2014, the Code Group continues to analyse the third criterion and assess or consider all existing patent boxes in the EU, including those already assessed or considered before, by the end of 2014 "against the background of international developments" including the OECD's BEPS initiative. The European Commission, which assists the work of the Code Group, meanwhile has gathered information already under EU state aid law with respect to one member state and written informally to others. The OECD has started looking into harmful tax practices again under BEPS Action 5 as well, and the Code Group is now looking to fall in behind the OECD work on the same topic, where possible.

The next Code Group meeting will be held on September 16 2014, and will discuss progress on this issue. If no broad consensus can be reached within the Code Group with the European Commission, however, on how to deal with the IP regimes which are considered harmful by the Commission, the issue is likely to be moved up to the ECOFIN Council (EU-28 Finance Ministers). Spurred in particular by strong and unrelenting voices of concern from Germany about the use of IP boxes in the EU, a fierce political debate might ensue in ECOFIN in October or November on the sustainability of IP regimes in Europe altogether. Germany's Minister of Finance, Wolfgang Schäuble, was quoted by Reuters in July 2013 already as saying: "We have to look at this practice and discuss it in Europe (…). That's no European spirit. You could get the idea they are doing it just to attract companies."

The Code Group brings together the 28 directors-general of the national ministries of Finance, national fiscal attachés based in Brussels, and European Commission officials, on a two-monthly basis. Its recommendations are soft law based on broad consensus and are politically binding on the member states. The Code Group has been quite successful ever since its establishment in 2007 owing to its continued opacity and non-transparency. The only real substantial reporting on the Code Group are six-monthly EU presidency progress reports to the ECOFIN Council. No other formal announcements other than meeting agendas are published.

Bob van der Made (bob.van.der.made@nl.pwc.com)

PwC

Tel: +31 88 792 3696

Website: www.pwc.com

more across site & shared bottom lb ros

More from across our site

Tax advisers in Brazil are rising above the country’s notoriously complex tax system to deliver high-quality advisory services, ITR’s exclusive in-house data reveals
ITR’s data has highlighted the US firm’s ambition to become America’s ‘premier’ tax player via a concerted partner recruitment strategy
Jaap Zwaan’s arrival continues a recent streak of A&M Tax investing in the region; in other news, the US and Japan struck a deal that significantly lowered tariff rates
In a world where international tax concepts rely on human activity, Leonard Wagenaar poses existential questions about the future of such ideas when AI is ever-present
France v Axa provides a practical illustration of how the burden of proof is applied in TP matters under French law, ITR also heard
In an exclusive interview with ITR, Ian Gary calls for a central public CbCR database and bemoans the US’s lack of involvement in international tax transparency
Reckitt Benckiser is to divest its Essential Home business, which includes more than 70 brands, to private equity firm Advent International
In the first of a new series of weekly opinion pieces, ITR Editor Tom Baker reflects on the OECD’s attempts to sanitise the US’s brazen pillar two negotiations
The threat of 50% tariffs on Brazilian goods coincides with new Brazilian legal powers to adopt retaliatory economic measures, local experts tell ITR
The country’s chancellor appears to have backtracked from previous pillar two scepticism; in other news, Donald Trump threatened Russia with 100% tariffs
Gift this article