Non-harmonized Implementation of a GloBE Minimum Tax: How EU Member States Could Proceed

Abstract

Since July 2021, more than 130 member countries of the G20/OECD Inclusive Framework (IF) have committed themselves to pursuing a ‘common approach’ on an international effective minimum tax regime. This political agreement implies that member countries who wish to implement such a tax regime have to streamline its design by modelling it after the so-called Global Anti-Base Erosion Proposal (‘GloBE’) that the IF has developed as ‘Pillar 2’ of its work program on tax challenges arising from the digitalization of the economy. This article explores how individual EU Member States could implement this agreement in conformity with EU fundamental freedoms also absent – or ahead of – harmonizing EU legislation to this effect. It is demonstrated that design alternatives to the often proposed extension of the carve-out for ‘substance-based’ activities exist and should be pursued. In particular, EU Member States could extend the minimum top-up tax approach to domestic entities of in-scope multinational enterprises (MNEs). Alternatively, they could also convert GloBE into a form of unitary minimum taxation. minimum taxation, GloBE, Pillar 2, fundamental freedoms, de facto discrimination