Shortcomings in the European Union Merger Directive: Lessons for Future Harmonization

Abstract

The European Union (EU) has recently demonstrated with the Anti-Tax Avoidance Directive (ATAD) that it can deliver harmonized measures in areas where controversies exist. With even further-reaching measures, such as the common consolidated corporate tax base (CCCTB) and the Financial Transaction Tax (FTT), (re)gaining momentum it is sensible to learn from the experiences with previous harmonization measures. One of them is the EU Merger Directive. This article will address five broad shortcomings that have been identified in this directive and conclusions will be drawn from them. The lessons to be learned from the EU Merger Directive – and those would apply to any future harmonization measure – are, amongst others, that the objective of the measure has to be defined razor sharp, that minimum harmonization measures may still lead to distortions among the Member States, and that it should be crystal clear on which foundations certain demarcations are made.