On Tuesday 21 February, the European finance ministers approved the list of criteria to define a tax haven. The matter was agreed upon without discussion, although the British representative insisted on taking the floor.
Readers may recall that discussions at the 'Corporate taxation code conduct' group of the Council had been stumbling for several weeks over the reference to a zero rate as a criterion of a jurisdiction facilitating offshore tax structures (criterion 2.2). This reference to a zero rate, which was initially presented as a criterion in its own right, was removed from the raft of criteria by the finance ministers in November 2016 (see EUROPE 11663). The 'code of conduct' group was then asked to work on keeping a zero rate in as an indicator of another criterion, the criterion that a jurisdiction promoted offshore structures (criterion 2.2).
If a country does not meet criterion 2.1 (harmful tax measures) simply because it has a harmful measure that allows a very low or zero rate of taxation, then the five criteria of the code of conduct will apply (a regime is applicable only to non-resident companies or if an advantage is granted even though there is no economic activity).
Basically: the dependent jurisdictions of certain member states (Jersey, Guernsey, etc.) will escape this criterion, as they are already subject to the five criteria of the code of conduct.
The United Kingdom distributed a written statement to its opposite numbers stressing that the five criteria of the code conduct should not be reinterpreted or the scope of application enlarged. All of the other criteria of the blacklist will, of course, apply to these jurisdictions.
“The intention is not to have a list at all, but to engage those jurisdictions” to adopt standards of the same calibre as the EU, Edward Scicluna, the Maltese finance minister, explained on behalf of the Maltese Presidency.
Readers may recall that the first set of criteria concerns transparency and the third set the implementation of the BEPS action plan of the OECD aiming to put a stop to tax optimisation. (Original version in French by Élodie Lamer)