Is the EU Contribution on Windfall Profits Based on the Right Treaty Provision?

Abstract

In the aftermath of the debate instigated by the ‘windfall profits’ generated by the inflation in the energy sector, the EU introduced a temporary ‘solidarity contribution’ in October 2022 acting as a redistributing mechanism to finance support measures for energy consumers. The rapidity of its adoption is directly linked to its legal basis as it is founded on an emergency clause (Article 122 TFEU) that does not require unanimity in the EU Council. This contribution argues that this legal basis is appropriate even though the EU solidarity contribution has to be classified as a direct tax. Indeed, it can be deduced from settled CJEU case law that such a measure has to be based on only this clause and not on the usual Article 115 TFEU used for the approximation of laws in the field of direct taxation as its purpose is to react to an economic situation through a temporary solidarity measure. That stated, the consequences on the debate on qualified majority voting (QMV) in taxation should not be overestimated; Article 115 TFEU cannot be circumvented for measures aiming at harmonizing direct tax legislations of Member States in order to improve the functioning of the internal market. TFEU, legal basis, windfall profit, energy prices, solidarity contribution