Article: ‘Provisions Primarily of a Fiscal Nature’: Time to Dispel Doubts

Abstract

The concept of ‘provisions primarily of a fiscal nature’ is not defined in the EU Treaties. Despite the absence of an exact definition, such expression has been so far understood as including the adoption of all types of environmental taxes. But is this interpretation correct? And is it the only possible one? This article aims at answering the question of whether environmentally driven fiscal measures that have primarily regulatory goals can be introduced via the ordinary legislative procedure as per Article 192(1) Treaty on the Functioning of the European Union (TFEU). In doing so, this contribution firstly describes why Article 192(2)(a) TFEU was introduced as an exception to paragraph 1. Secondly, it analyses the concepts of ‘primarily’ and ‘fiscal nature’ and assesses whether the different language versions of the TFEU dispel doubts about their meanings or increase the level of uncertainty. In light of this scrutiny, the author proposes a potential new interpretation that would bring the adoption of environmentally driven taxes under the umbrella of Article 192(1) TFEU. Environmental taxes, fiscal nature, unanimity, qualified majority voting, special legislature procedure, ordinary legislative procedure, passerelle clause