The member states plan to maintain confidentiality over the list of third countries they will assess in 2017 in the framework of the European blacklist of tax havens they plan to draw up. The finance ministers will moreover discuss certain controversial criteria which could not be defined at expert or ambassador level, despite the best attempts of the Slovak Presidency of the Council of the EU over the weekend.
In its latest working document dated 7 November, of which EUROPE has had sight, the Presidency states that only the results of the assessments of the third countries – in other words, the final blacklist – will be made public. The list of countries to be assessed will therefore remain outside the public domain.
On the criteria, a number of points are still under discussion. As regards transparency (exchange of information), will meeting only two out of the three criteria allow a country to avoid being put on the list? The OECD's approach states that filling two of these criteria will be enough. According to several sources, the United Kingdom has expressed concern at the fact that if all three criteria had to be met, the United States would end up on the list as a matter of course, which would be "unacceptable".
The Presidency's compromise aims to provide a transitional period, to run until 1 January 2020, during which a country would need to meet only two of the three criteria. Jurisdictions not deemed largely compliant by the Global Forum on the exchange of information upon request by 2018 will not be granted this transitional period.
A second point of discussion relates to the raft of criteria on taxation fairness. The original idea was to target jurisdictions which facilitate offshore structures aiming to attract profits that do not reflect real economic activity, by applying a rate of zero, or close to zero, in corporate tax, or which do not apply corporate taxation. Several delegations argue that a tax rate cannot be considered a harmful taxation practice criterion. Germany, in the opposite corner, insists that this criterion be kept in place. According to the Presidency, the most delicate point is the precise wording of 'a rate close to zero', whilst the reference to a taxation system and a rate of 0% appears less controversial. This criterion has been placed within brackets in its entirety, meaning that the ministers will have to provide guidelines on this point.
The third raft of criteria relates to the inplementation of the 'BEPS' action plan of the OECD to fight aggressive corporate tax optimisation.
It is also worth noting that in the transparency criteria, a criterion on the exchange of information on beneficial owners of trusts and shell companies is expected to be added in the future. (Original version in French by Élodie Lamer)