|Bob van der Made|
EU member states sent a letter on February 1 2017 to 92 jurisdictions outside the European Union, informing them that they will be "screened" with a view to possible inclusion in a future EU "blacklist" of tax havens. According to the EU's tax policy calendar, the common EU blacklist should be ready by the end of 2017, which, given the task, seems quite ambitious.
The list of the 92 countries or jurisdictions that have been contacted is not public, but it is believed that the US or a couple of individual US states may have received a letter as well. The template for the letter signed by the Chair of the Code of Conduct Group on Business Taxation (the Code Group) was leaked. In the letter, EU member states ask the recipients for main country contacts details and to cooperate with the EU. The letter insists that this first contact does not mean that the 92 countries will also end up on the EU's final list.
EU member states' experts will soon be nominated in the context of the Code of Conduct Group as part of several country case-handling teams that will have to examine the 92 countries. The Code Group will possibly need to engage in a "dialogue" with each of the 92 countries to decide in the coming months whether they should be included in the final blacklist.
The European Commission finalised its work on a draft EU tax haven blacklist on September 14 2016, or "Scoreboard of all third countries and jurisdictions for tax purposes (scoreboard)". The European Commission's scoreboard pre-assessed 160 non-EU jurisdictions against "objective economic, financial, stability and tax good governance indicators". The Commission presented the scoreboard on September 15 2016. It is understood that the EU's 28 member states (Council) were informed of the scoreboard's publication only at a very late stage. However, importantly, the primary and formal responsible EU body for the EU screening process is actually the EU's Code Group, not the EU's Commission. To complicate matters further, the Code Group is not a formal EU body or EU/ECOFIN Council working group as such, but it is an informal, political peer pressure group made up of the EU's member states.
On November 8 2016, the EU's ECOFIN Council (made up of the EU's 28 finance ministers) agreed that to avoid being on the future EU tax haven blacklist, third countries would have to comply with the international tax transparency criteria, fair taxation – including not facilitating offshore structures or arrangements aimed at attracting profits that do not reflect real economic activity in the jurisdiction, and implementation of anti-BEPS measures such as the common reporting standard. The work is being carried out in parallel with the OECD's Global Forum on Transparency and Exchange of Information for Tax Purposes.
Malta's Finance Minister Edward Scicluna, who is the chair of the ECOFIN Council as part of Malta's six-month rotating EU Council Presidency, told a press conference on February 21 2017 after the ECOFIN Council meeting that: "There is no list at present whatsoever. What we have is a number of letters being sent to a number of jurisdictions asking them to engage with the EU in order to start discussions. … Our aim is simple, to promote worldwide good standards that are already applicable in the European Union".
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