The mandate of the European Parliament's Panama Papers committee of investigation is not detailed enough for the member states and Council of the EU to be able to judge whether they are obliged to respond to its requests, according to the Council legal service in an opinion issued in July, of which EUROPE has had sight.
If individual requests sent to the states are not more specific, the states may refuse to cooperate, the Council experts add. The mandate of the committee of investigation is described in "very general terms", referring to money laundering, tax evasion and tax avoidance, and does not specify which member state is concerned, they note (see EUROPE 11548 and 11579). Furthermore, the context surrounding the creation of the committee of investigation, the Panama Papers scandal, concerns an enormous number of operations and transactions, making a sufficiently detailed ex ante identification of the object of the investigation impossible.
The committee's mandate defined by the European Parliament also fails to show how breaches of European law may have arisen. The legal service also refers to the very many directives, covering almost all areas, listed by the Parliament, but failing to connect these legislative texts to any specific violation. Moreover, some of these directives are not even linked to relations between taxpayers and the tax authorities. The experts go on to stress that a number of facts invoked by the Panama Papers scandal do not fall within the scope of application of European law, but come under national legislation and relations between the member states and third countries.
The Council legal service fails to understand why the Panama Papers scandal shows that there has been any misapplication by the member states of the European state aid rules. It also takes the view that the Parliament's decision to create this committee of investigation institutes a general power of control of the Parliament over the application by the member states of their national legislations and could change the institutional balance laid down in the Treaties (which confers powers to harmonise policies in the field of taxation upon the Council alone).
Reasoned requests, on which individual member states or the Council may be called to contribute to the work of the Parliament's committee of investigation, should identify in sufficiently clear, precise and unequivocal terms the factual and legal elements that form the object of the investigation. If this is not the case, the states and Council may legitimately refuse to participate in order to safeguard their rights and interests, the Council's legal service goes on to conclude. (Original version in French by Elodie Lamer)