European Union: Public CbCR impasse in EU’s Council and possible impact of President Tusk’s EU reform plans

October 26 2017

The EU Council's working party on company law (CbCR) met again under the chairmanship of Estonia at the level of national attachés and national experts on October 11 2017. The stated aim of the working party meeting was to continue technical-level discussions on the EU's pending public country-by-country reporting (public CbCR) proposal. On the agenda were a discussion on the previous Maltese EU presidency legacy compromise text and a more recent compromise text prepared by the current Estonian presidency.

The Estonian presidency has stepped up the number of technical meetings on public CbCR, but still without a concrete realistic short-term prospect on real progress. This is due, firstly, to the fact that a number of member states are understood to oppose the legal basis of the EU draft Directive on public CbCR. These member states (it is believed at least seven, including a big member state) are believed to be ready to block this proposal if it were to come to qualified majority voting in Council.

In addition, there is not yet a new German government in place following the country's election. Germany is believed to be holding the key to this legislative dossier's fate. The German delegation in the Council cannot take a position until a new government is in place, however, and forming the new government might take until Christmas, at least. Nevertheless, Estonia has pencilled in another Council working party meeting on public CbCR for November 14 2017. It is even understood that Estonia is aiming for political agreement at EU-28 ambassadorial level in Coreper (the committee of permanent representatives in the EU) by the end of November.

Not immediately related to the above, but just possibly impacting on it in the future, is European Council President Donald Tusk's proposed "Leaders' Agenda" issued on October 18 2017, put to EU-28 leaders ahead of the EU summit held during the following two days. Tusk wants the EU-28 heads of state and government to get more actively involved at the highest political level "to break any deadlock" in Council, which would also include creating a short-cut to enhanced cooperation "if that's the only way forward".

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, so far, a final agreement in sight. The formal EU law requirements for enhanced cooperation are laid down in Article 20 of the Treaty on European Union (TEU) and Articles 326 to 334 of the Treaty on the Functioning of the European Union (TFEU).

Tusk's Leaders' Agenda provides an overview of the main issues that he intends to put to EU leaders between now and June 2019. Some will be discussed at formal EU summits, while others will be addressed in an informal format, with 27 or 28 EU leaders, depending on the substance. The Leaders' Agenda includes ongoing work streams and issues that require discussions aimed at resolving deadlocks or finding solutions to key political dossiers. It may be that Tusk's plan if accepted by EU Leaders could also impact deadlocked EU tax-related dossiers in Council.