Aggressive Tax Planning in EU Law and in the Light of BEPS: The EC Recommendation on Aggressive Tax Planning and BEPS Actions 2 and 6

Abstract

The purpose of this article is to critically assess the meaning of aggressive tax planning and its scope in the current international move to fight against base erosion and profit shifting (BEPS). In the context of the BEPS initiative, aggressive tax planning has been broadly used in several Organization for Economic Cooperation and Development (OECD) and EU soft law instruments. However, it is not clear what new features aggressive tax planning does bring to the settled legal concepts of tax avoidance and tax evasion, and whether it is a legal or merely a tax policy concept. In order to find the meaning of aggressive tax planning in the BEPS context, some of the recommendations put forward in BEPS actions 2 and 6 and in the EC Recommendation on Aggressive Tax planning are analysed and compared in this article. The article also aims to illustrate some of the reciprocal influences and interaction between EU law and OECD recommendations and tax treaties. For example, the EC Recommendation on ATP, proposing the introduction of a General Anti-Abuse Rules (GAAR) in the Member States' legislation, and the BEPS Action 6 proposal to introduce a GAAR (a Principal Purposes Test Rule or PPT Rule) in tax treaties illustrate the same spirit and a holistic approach. Moreover, a PPT Rule in tax treaties concluded by EU Member States will have to be compatible with the EU fundamental freedoms and the principle of abuse in EU law. The GAAR amending the EU Parent-Subsidiary Directive and approved by the Economic and Financial Affairs Council (ECOFIN) on 9 December 2014 illustrates how EU Member States could introduce a GAAR in their treaties compatible with EU law. These reciprocal influences among domestic, international and EU law and practices lead to an acquis communautaire and to international standards which may be justified as products of global identity and related to a global sense of fairness and unfairness and ultimately of a global tax morale calling for global solutions and global tax standards.