Financial Services – 21 November 2017

The Council of the Union took the decision to transfer the European Banking Authority from London to Paris – where the European Securities and Markets Authority is already based – in the context of the UK’s withdrawal from the EU. The European Insurance and Occupational Pensions Authority remains in Frankfurt .

Health – 21 November 2017

The Council of the Union took the decision to transfer the European Medicine Agency from London to Amsterdam in the context of the UK’s withdrawal from the EU.

Social Affairs – 14 November 2017

End October, the Employment, Social Policy, Health and Consumer Affairs Council expressed its unanimous endorsement of the European Pillar of Social Rights, which the Commission presented in April 2107.

In 2018 the Commission will launch a European Labour Authority, in line with President Juncker’s 2017 State of the Union and Letter of Intent. The aim is to strengthen cooperation between labour market authorities at all levels and better manage cross-border situations.

The Commission will also propose other initiatives in support of fair mobility, including a European Social Security Number, to make social security rights more visible and digitally accessible.

Social Affairs – 24 October 2017

The Council reached an agreement on its position on the posting of workers directive. The new proposal revises certain elements of the original 1996 directive. Poland, Hungary, Lithuania, and Latvia voted against, United Kingdom, Ireland and Croatia abstained. The majority represents 20 member States (16 required) representing 73% of the EU population (65% required). Transport will be adressed separately.

The Estonian Presidency of the Council needs to negotiate in trilogue with the European Parliament rapporteurs (Elizabeth Morin-Chartier and Agnes Jongerius) and the shadow rapporteurs to align their respective positions. In the Employment and social affairs committee, the majority is broad: 32 votes in favour, 8 against and 13 abstentions.

The Council ‘s version of the new directive provides for:

  • remuneration of posted workers in accordance with host member state law and practices
  • long-term posting of 12 months that can be extended to 6 months (18 months in total) on the basis of a motivated notification by the service provider
  • application of universally applicable collective agreements to posted workers across all sectors
  • equal treatment of temporary agency workers and local workers
  • as regards the transport sector, the provisions of the amending directive will apply from the date of entry into force of the forthcoming sector-specific legislation
  • 3 years transposition period plus 1 more year before the application of the directive.

All rules on remuneration which apply to local workers will also have to apply to posted workers. Remuneration will not only include the minimum rates of pay, but also other elements such as bonuses or allowances.

The Platform against undeclared work will be used to fight fraud and abuses and to improve the exchange of information and administrative cooperation between member states.

Taxation – 11 October 2017

The ECOFIN Council reached an agreement which will ensure that businesses and citizens can resolve disputes related to the interpretation of tax treaties more swiftly and effectively. It will also cover issues related to double taxation – a major obstacle for businesses, creating uncertainty, unnecessary costs and cash-flow problems.

This agreement will ensure that taxpayers faced with tax treaty disputes can initiate a procedure whereby the Member States in question must try to resolve the dispute amicably within two years. If at the end of this period, no solution has been found, the Member States must set up an Advisory Commission to arbitrate. If Member States fail to do this, the taxpayer can bring an action before the national court to do so. This Advisory Commission will be comprised of 3 independent members and representatives of the competent authorities in question. It will have 6 months to deliver a final, binding decision. This decision will be immediately enforceable and must resolve the dispute.

Estimates show that there are currently around 900 double taxation disputes in the EU today, estimated to be worth €10.5 billion. The new rules formally adopted today will better meet the needs of businesses and citizens and any double taxation will be removed.

Taxation – 4 October 2017

The European Commission launched plans for the biggest reform of EU VAT rules “in a quarter of a century”. The Commission proposes to tax sales of goods from one EU country to another in the same way as goods are sold within individual Member States.

  • VAT would be charged on cross-border trade between businesses. Currently, this type of trade is exempt from VAT, providing an easy loophole for unscrupulous companies to collect VAT and then vanish without remitting the money to the government;
  • It would be simpler for companies that sell cross-border to deal with their VAT obligations thanks to a ‘One Stop Shop'; Member States would then pay the VAT to each other directly, as is already the case for all sales of e-services;
  • There would be a move to the principle of ‘destination’ whereby the final amount of VAT is always paid to the Member State of the final consumer and charged at the rate of that Member State;
  • There would be some simplification of invoicing rules, allowing sellers to prepare invoices according to the rules of their own country even when trading across borders. Companies would no longer have to prepare a list of cross-border transactions for their tax authority (the so-called ‘recapitulative statement’).

Digital Economy –  23 September 2017

The Commission proposed a new set of rules to govern the free flow of non-personal data in the EU.

  1. The principle of free flow of non-personal data across borders: Member States can no longer oblige organisations to locate the storage or processing of data within their borders. Restrictions will only be justified for reasons of public security. Member States will have to notify the Commission of new or existing data localisation requirements. The free flow of non-personal data will make it easier and cheaper for businesses to operate across borders without having to duplicate IT systems or to save the same data in different places.
  2. The principle of data availability for regulatory control: Competent authorities will be able to exercise their rights of access to data wherever it is stored or processed in the EU. The free flow of non-personal data will not affect the obligations for businesses and other organisations to provide certain data for regulatory control purposes.
  3. The development of EU codes of conduct to remove obstacles to switching between service providers of cloud storage and to porting data back to users’ own IT systems.

Financial Markets – 23 September 2017

The Commission proposed to make ESMA the direct supervisor over certain sectors of capital markets across the EU:

  • Capital market data: ESMA will authorise and supervise the EU’s critical benchmarks and endorse non-EU benchmarks for use in the EU. This will improve the reliability and harmonisation of supervision of benchmarks, which are the indices or indicators used to price financial instruments and financial contracts or to measure the performance of an investment fund.
  • Capital market entry: In a bid to streamline procedures for companies to tap into EU capital markets and attract investment from across the EU, ESMA will now be in charge of approving certain EU prospectuses and all non-EU prospectuses drawn up under EU rules. Prospectuses are documents that contain the information an investor needs before making a decision whether to invest in a company.
  • Capital market actors: ESMA will authorise and supervise certain investment funds with an EU label with the aim of creating a genuine single market for these funds (European Venture Capital Funds, European Social Entrepreneurship Funds and European Long-Term Investment Funds).
  • Market abuse cases: ESMA will have a greater role in coordinating market abuse investigations. It will have the right to act where certain orders, transactions or behaviours give rise to well-founded suspicion and have cross-border implications or effects for the integrity of financial markets or financial stability in the EU.

The ESAs (markets, banks, insurance) will take decisions more independently from national interests. Under the new governance system, newly-created Executive Boards with permanent members will lead to quicker, more streamlined and EU-oriented decisions. Moreover, interested parties will be able to ask the Commission to intervene if the majority consider that the ESAs have exceeded their competences when issuing guidelines or recommendations. The reform will also make the funding of the ESAs independent from national supervisors. This will guarantee that the ESAs have improved autonomy and independence. While the EU budget will continue to contribute a share of the ESAs’ funding, the rest will be funded by contributions from the financial sector.

As the EU steps up efforts to complete the Capital Markets Union, supervision has to keep pace with new market developments, notably:

  • The ESAs will promote sustainable finance, while ensuring financial stability. They will take account of environmental, social and governance-related factors and risks in all the tasks they perform.
  • The ESAs will prioritise FinTech and will coordinate national initiatives to promote innovation and strengthen cybersecurity. They will take account of technological innovation in all the tasks they perform.

Digital Economy –  23 September 2017

The European Commission launched a new EU agenda to ensure that the digital economy is taxed. A Communication adopted by the Commission sets out the challenges Member States currently face when it comes to acting on this pressing issue and outlines possible solutions to be explored.

The aim is to ensure a coherent EU approach to taxing the digital economy that supports the Commission’s key priorities of completing the Digital Single Market and ensuring the fair and effective taxation of all companies. The Communication paves the way for a legislative proposal on EU rules for the taxation of profits in the digital economy, as confirmed by President Juncker in the 2017 State of the Union. Those rules could be set out as early as spring 2018.

European Union – 16 September 2017

In his speech on the state of the Union on 15 September, Commission President Juncker gave details on important initiatives from the Commission, including:

  • proposals to reduce the carbon emissions of our transport sector;
  • a European Cybersecurity Agency;
  • a European Social Standards Union,
  • a common Labour Authority;
  • encouraging the Council to move to qualified majority voting for decisions on the common consolidated corporate tax base, on VAT, on fair taxes for the digital industry and on the financial transaction tax;encouraging Member States to join the Banking Union;
  • incentives for Member States to join the Economic and Monetary Union.

Trade – 16 September 2017

In his speech on the state of the Union on 15 September, President Juncker unveiled an ambitious package of trade and investment proposals for a progressive and balanced trade agenda. Trade is the n°1 priority in the 2018 work programme of the Commission. A communication 􏰐􏰀􏰖􏰔 was published at the same time.

Proposals include a European screening framework to ensure that foreign direct investment does not compromise the EU’s strategic interests, as well as 3 draft negotiating mandates for trade agreements with Australia and New Zealand, and for a multilateral agreement to create an investment court.

The Commission also steps up further the inclusiveness and transparency of its trade policy by setting up an Advisory Group on EU trade agreements and deciding to publish any new proposals for negotiating mandates.

Competition – 10 July 2017

The European Commission has fined Google €2.42 billion for breaching EU antitrust rules. Google has abused its market dominance as a search engine by giving an illegal advantage to another Google product, its comparison shopping service.

Taxation – 22 June 2017

The European Commission proposed new transparency rules for intermediaries – such as tax advisors, accountants, banks and lawyers – who design and promote tax planning schemes for their clients.

Cross-border tax planning schemes bearing certain characteristics or ‘hallmarks’ which can result in losses for governments will now have to be automatically reported to the tax authorities before they are used. The Commission has identified key hallmarks, including the use of losses to reduce tax liability, the use of special beneficial tax regimes, or arrangements through countries that do not meet international good governance standards.

Digital Economy – 9 June 2017

The Council of the Union has adopted one important part of the e-commerce package proposed by the European Commission in May 2016, that is to say a legislative proposal on cross-border parcel delivery services to increase the transparency of prices and improve regulatory oversight.

The Regulation will foster competition by introducing greater price transparency. The Commission did not propose a cap on delivery prices. The Regulation will give national postal regulators the data they need to monitor cross-border markets and check the affordability and cost-orientation of prices. It will also encourage competition by requiring transparent and non-discriminatory third-party access to cross-border parcel delivery services and infrastructure. The Commission will publish public listed prices of universal service providers to increase peer competition and tariff transparency.
The other elements of the package are:

  • A legislative proposal to address unjustified geoblocking and other forms of discrimination on the grounds of nationality, residence or establishment;
  • A legislative proposal to strengthen enforcement of consumers’ rights and guidance to clarify, among others, what qualifies as an unfair commercial practice in the digital world.

United Kingdom – 4 May 2017

The European Council has adopted by unanimity guidelines on the negotiations with the United Kingdom. As a follow up, the European Commission has presented to the European Council a Recommendation regarding the way such negotiations should develop.

Social Affairs – 26 April 2017

The European Commission presented the European Pillar of Social Rights setting  out 20 key principles and rights to support fair and well-functioning labour markets and welfare systems.

The Pillar is presented both as a Commission Recommendation and as a proposal for a joint proclamation by the Parliament, the Council and the Commission.

The Commission will now enter into discussions with the European Parliament and all the Member States in the Council to work towards broad political support and high-level endorsement of the Pillar.

Already today, the European Commission flanks the European Pillar of Social Rights with a number of further concrete legislative and non-legislative initiatives such as on the work-life balance of parents and carers, on the information of workers, and on access to social protection and on working time. These initiatives illustrate both the nature of the issues covered by the Pillar as well as the way in which its principles and rights can be implemented.

A social scoreboard is also established to track trends and performances across EU countries in 12 areas and to assess progress towards a social “triple A” for the EU as a whole. This analysis will feed into the European Semester of economic policy coordination.

Company Law – 20 March 2017

The European Parliament adopted the revised Shareholders’ rights directive. The final adoption step will take place in the Council shortly. The directive will enter into force two years after its publication in the official journal.

The main changes include:

  • Stronger shareholders ‘rights and facilitation of cross-border voting.
  • Long-term engagement of institutional investors and asset managers: the Directive encourages these investors to adopt more-long-term focus in the investment strategies and to consider social and environmental issues. These new rules will be based on a ‘comply or explain’ approach. There is no requirement to reveal any confidential information.
  • More transparency of proxy advisors’ preparation of recommendation, advice and  application of the code of conduct they apply.
  • Shareholders’ vote on the remuneration policy will in principle be binding. Member States will however have the possibility to opt for an advisory vote.
  • Related party transactions that are most likely to create risks for minority shareholders will also have to be submited for approval of the general meeting of shareholders or of the board.

European Union – 6 March 2017

The European Commission presented a White Paper on the Future of Europe, which forms the Commission’s contribution to the Rome Summit of 25 March 2017. It  sets out five scenarios.

  • Scenario 1: Carrying On – The EU27 focuses on delivering its positive reform agenda in the spirit of the Commission’s New Start for Europe from 2014 and of the Bratislava Declaration agreed by all 27 Member States in 2016. By 2025 this could mean:
    • Europeans can drive automated and connected cars but can encounter problems when crossing borders as some legal and technical obstacles persist.
    • Europeans mostly travel across borders without having to stop for checks. Reinforced security controls mean having to arrive at airports and train stations well in advance of departure.
  • Scenario 2: Nothing but the Single Market – The EU27 is gradually re-centred on the single market as the 27 Member States are not able to find common ground on an increasing number of policy areas. By 2025 this could mean:
    • Crossing borders for business or tourism becomes difficult due to regular checks. Finding a job abroad is harder and the transfer of pension rights to another country not guaranteed. Those falling ill abroad face expensive medical bills.
    • Europeans are reluctant to use connected cars due to the absence of EU-wide rules and technical standards.
  • Scenario 3: Those Who Want More Do More – The EU27 proceeds as today but allows willing Member States to do more together in specific areas such as defence, internal security or social matters. One or several “coalitions of the willing” emerge. By 2025 this could mean that:
    • 15 Member States set up a police and magistrates corps to tackle cross-border criminal activities. Security information is immediately exchanged as national databases are fully interconnected.
    • Connected cars are used widely in 12 Member States which have agreed to harmonise their liability rules and technical standards.
  • Scenario 4: Doing Less More Efficiently – The EU27 focuses on delivering more and faster in selected policy areas, while doing less where it is perceived not to have an added value. Attention and limited resources are focused on selected policy areas. By 2025 this could mean
    • A European Telecoms Authority will have the power to free up frequencies for cross-border communication services, such as the ones used by connected cars. It will also protect the rights of mobile and Internet users wherever they are in the EU.
    • A new European Counter-terrorism Agency helps to deter and prevent serious attacks through a systematic tracking and flagging of suspects.
  • Scenario 5: Doing Much More Together – Member States decide to share more power, resources and decision-making across the board. Decisions are agreed faster at European level and rapidly enforced. By 2025 this could mean:
    • Europeans who want to complain about a proposed EU-funded wind turbine project in their local area cannot reach the responsible authority as they are told to contact the competent European authorities.
    • Connected cars drive seamlessly across Europe as clear EU-wide rules exist. Drivers can rely on an EU agency to enforce the rules.

Digital Economy – 22 February 2017

The European Parliament adopted a Resolution for the Commission on robotics and artificial intelligence by 396 votes to 123, with 85 abstentions. It rejected, against the opinon of the Socialist Rapporteur Mady Delvaux by 368 against 286, the idea of a universal basic income to compensate for the impact of robots on the labour market.

The Parliament stresses that draft legislation is urgently needed to clarify liability issues, especially for self-driving cars. They call for a mandatory insurance scheme and a supplementary fund to ensure that victims of accidents involving driverless cars are fully compensated.

The Parliament also asks the Commission to consider creating a specific legal status for robots in the long run, in order to establish who is liable if they cause damage.

The rapid development of robots might result in changes in the labour market through the creation, displacement and loss of certain jobs. The Parliament urges the Commission to follow these trends closely.

The growing use of robotics also raises ethical issues, for example to do with privacy and safety. The Parliament proposes a voluntary ethical code of conduct on robotics for researchers and designers to ensure that they operate in accordance with legal and ethical standards and that robot design and use respect human dignity.

It also asks the Commission to consider creating a European agency for robotics and artificial intelligence, to supply public authorities with technical, ethical and regulatory expertise.

Agriculture – 6 February 2017

The Commission launched a public consultation on “a modernised and simplified Common Agricultural Policy” that will take place until 2 May 2017. Results will be presented in July.

For the Commission, challenges regarding increased market uncertainty and falling prices, new international commitments on climate change and sustainable development justify the modernisation and simplification of the CAP to reduce even further the administrative burden and made even more coherent with other EU policies to maximise its contribution to the 10 political priorities of the Commission, the Sustainable Development Goals and the Paris climate change agreement.

Environment – 27 January 2017

One year after adopting its Circular Economy Package, the Commission reported on the delivery and progress of key initiatives.

The Commission also took further measures by establishing a Circular Economy Finance Support Platform with the European Investment Bank (EIB) bringing together investors and innovators. Furthermore, the Commission issued guidance to Member States on converting waste to energy and proposed a targeted improvement of legislation on certain hazardous substances in electrical and electronic equipment.

Services – 13 January 2017

The Commission presented an action plan in favour of services in the European Internal market, which includes four initiatives:

  1. A new European Services e-card: A simplified electronic procedure will make it easier for providers of business services (e.g. engineering firms, IT consultants, organisers of trade shows) and construction services to complete the administrative formalities required to provide services abroad. Services providers will simply have to liaise with a single interlocutor in their home country, who will verify the necessary data and transmit it to the host Member State;
  2. Clarification of the way Member States check access to professions conditional to the possession of specific qualifications;
  3. Evaluation of rospects for reforming regulation of professional services with high growth and jobs potential: architects, engineers, lawyers, accountants, patent agents, real estate agents and tourist guides;
  4. Improvement of notification to the Commission of changes to national rules on services.

Taxation – 3 January 2017

As of 1 January 2017, Member States are obliged to automatically exchange information on all new cross-border tax rulings that they issue. This will be done through a central depository, accessible to all EU countries.

Every six months national tax authorities will send a report to the depository, listing all the cross-border tax rulings that they have issued. Other Member States will then be able to check those lists and to ask the issuing Member State for more detailed information on a particular ruling. This first exchange should take place by 1 September 2017 at the latest.

By 1 January 2018, Member States will also have to provide the same information for all cross-border rulings issued since the beginning of 2012.

Taxation – 1st December 2016

The European Commission unveiled a series of measures to improve the Value Added Tax (VAT) environment for e-commerce businesses in the EU. These include:

  • New rules allowing companies that sell goods online to deal easily with all their EU VAT obligations in one place;
  • To simplify VAT rules for startups and micro-businesses selling online, VAT on cross-border sales under €10,000 will be handled domestically. SMEs will benefit from simpler procedures for cross-border sales of up to €100,000 to make life easier;
  • Action against VAT fraud from outside the EU, which can distort the market and create unfair competition;
  • To enable Member States to reduce VAT rates for e-publications such as e-books and online newspapers.

Defence – 30 November 2016

The European Commission proposes a European Defence Fund and other actions to support Member States’ more efficient spending in joint defence capabilities, strengthen European citizens’ security and foster a competitive and innovative industrial base.

Under the European Defence Action Plan, the Commission proposes to:

1 – Set up a European Defence Fund to support investment in joint research and the joint development of defence equipment and technologies: the proposed Fund would include two “windows” which are complementary but different in their legal structure and budget sourcing.

  • A “research window” to fund collaborative research in innovative defence technologies such as electronics, metamaterials, encrypted software or robotics. The Commission has already proposed EUR 25 million for defence research as part of the 2017 EU budget, and expects that this budget allocation could grow to a total of EUR 90 million until 2020. Under the post-2020 EU multiannual financial framework, the Commission intends to propose a dedicated defence research programme with an estimated amount of EUR 500 million per year.
  • A “capability window” which would act as a financial tool allowing participating Member States to purchase certain assets together to reduce their costs. The capabilities would be agreed by the Member States, who would own the technology and equipment. For example, Member States may jointly invest in drone technology or bulk buy helicopters to reduce costs. As an order of magnitude, this window should be able to mobilise about EUR 5 billion per year. The Commission will launch a scoping study to refine this estimate.

2 – Foster investments in SMEs, start-ups, mid-caps and other suppliers to the defence industry: The European Structural and Investment Funds and European Investment Bank (EIB) group already provide financial support for the development of a number of dual-use activities. The Commission will support EIB efforts to improve access to funding by the defence supply chains. It will promote EU co-financing of productive investment projects and the modernisation of the defence supply chains. Under the ‘Blueprint for Sectoral Co-operation on Skills‘ the Commission will support cooperation in the defence sector to ensure people have the right skills and technological ability to generate innovation.

3 – Strengthen the Single Market for defence: The Commissionwill strengthen the conditions for an open and competitive defence market in Europe to help companies operate across borders and help Member States get best value for money in their defence procurement. To do so, the Commission will push ahead with the effective application of the two Directives on defence and security procurement and on EU transfers, facilitate the cross-border participation in defence procurement, support the development of industry standards, and promote the contribution of sectoral policies, such as EU space programmes, to common security and defence priorities.

Financial Markets – 28 November 2016

The European Commission proposed new rules for systemic derivatives market infrastructures, known as Central Counterparties (CCPs).

The proposed rules for CCPs set out provisions comparable to those in the recovery and resolution rules for banks (Bank Recovery and Resolution Directive– BRRD) and are based on international standards. However, as CCPs are very different businesses to banks, this proposal contains CCP-specific tools that better align with CCPs’ default management procedures and operating rules, especially to determine how losses would be shared.

  • The proposed rules require CCPs to draw up recovery plans. This should include scenarios involving defaults by clearing members of the CCP as well as the materialisation of other risks and losses for the CCP itself, such as fraud or cyberattacks. Recovery plans are to be reviewed by the CCP’s supervisor.
  • Authorities responsible for resolving CCPs (i.e. resolution authorities) are required to prepare resolution plans for how CCPs would be restructured and their critical functions maintained in the unlikely event of their failure.
  • Early intervention will ensure that financial difficulties are addressed as soon as they arise and problems can be averted. CCP supervisors are granted specific powers to intervene. Supervisors could also require the CCP to undertake specific actions in its recovery plan or to make changes to its business strategy or legal or operational structure.
  • In line with the guidance of the Financial Stability Board, a CCP will be placed in resolution when it is failing or likely to fail, when no private sector alternative can avert failure, and when its failure would jeopardise the public interest and financial stability. In addition, it could be placed into resolution where the use of further recovery measures could compromise financial stability even when the conditions above are not met.
  • The proposal establishes so-called resolution colleges for each CCP containing all the relevant authorities including the European Securities and Markets Authority (ESMA) and the European banking Authority (EBA).
  • The existing colleges under EMIR and the newly set-up resolution colleges should jointly undertake the specific tasks allocated to them under this Regulation. ESMA will facilitate joint actions and act as a binding mediator if necessary.

Company Law – 22 November 2016 

The European Commission for the first time presented a set of European rules on business insolvency.

  1. Common principles on the use of early restructuring frameworks.
  2. Rules to allow entrepreneurs to benefit from a second chance, as they will be fully discharged of their debt aftera maximum period of 3 years.
  3. Targeted measures for Member States to increase the efficiency of insolvency, restructuring and discharge procedures.

Companies in financial difficulties, especially SMEs, will have access to early warning tools. Flexible preventive restructuring frameworks will simplify lengthy, complex and costly court proceedings. The debtor will benefit from a time-limited ”breathing space” of a maximum of four months from enforcement action in order to facilitate negotiations and successful restructuring. Dissenting minority creditors and shareholders will not be able to block restructuring plans but their legitimate interests will be safeguarded. New financing will be specifically protected increasing the chances of a successful restructuring

Taxation – 27 October 2016

In the pipeline since almost 15 years, the proposal on a Common Consolidated Corporate Tax Base (CCCTB) has been tabled by the Commission; it was re‑calibrated as part of a broader package of corporate tax reforms. To encourage swift progress, the CCCTB has been broken down into a more manageable, two-step process.

1. With the CCCTB, companies will for the first time have a single rulebook for calculating their taxable profits throughout the EU. Compared to the previous proposal in 2011, the new corporate taxation system will:

– Be mandatory for large multinational groups which have the greatest capacity for aggressive tax planning, making certain that companies with global revenues exceeding EUR 750 million a year will be taxed where they really make their profits.

– Tackle loopholes currently associated with profit-shifting for tax purposes.

– Encourage companies to finance their activities through equity and by tapping into markets rather than turning to debt.

– Support innovation through tax incentives for Research and Development (R&D) activities which are linked to real economic activity.

Corporate tax rates are not covered by the CCCTB, as these remain an area of national sovereignty.

2. The Commission has also proposed an improved system to resolve double taxation disputes in the EU. There are currently around 900 double taxation disputes in the EU today, estimated to be worth €10.5 billion. The Commission has proposed that current dispute resolution mechanisms should be adjusted to better meet the needs of businesses.

A third proposal contains new measures to stop companies from exploiting loopholes, known as hybrid mismatches, between Member States’ and non-EU countries’ tax systems to escape taxation. The Anti-Tax Avoidance Directive, agreed in July, already addresses mismatches within the EU. The October proposal completes the picture by tackling mismatches with non-EU countries and is being made at the request of the Member States themselves.

Trade – 20 October 2016

The Commission proposed to provide the European Union with “updated, strengthened and more robust” trade defence instruments.

The current EU legislation caps the levels of anti-dumping duties, hampering the Commission’s efforts to address the challenges facing industries – such as the steel sector – which are suffering as a result of huge increases in import volume of dumped products.

This is due to the systematic application of the so called Lesser Duty Rule (LDR). To impose anti-dumping measures, there needs to be proven dumping from a third country and proven injury for EU industry with a causal link between them. The level of anti-dumping duties is then imposed at the level of the dumping margin or the level that removes injury, whichever is lower (the ‘lesser duty’). On cold rolled flat steel products from China, the average EU anti-dumping duty is 21%, while in the US, where the LDR is not applied, the average anti-dumping duty is 265%.

The new framework will not grant ‘market economy status’ to any country but ensure that the EU’s trade defence instruments are adapted to face the new challenges and legal and economic realities, while maintaining an equivalent level of protection.

The European Commission will propose by the end of 2016 a new method for calculating dumping on imports from countries where there are market distortions, or where the state has a pervasive influence on the economy.

Digital Economy – 21 September 2016

The European Commission revised its proposal regarding the end of roaming in the mobile phone sector. All travellers using a SIM card of a Member State in which they reside or with which they have stable links to use their mobile device in any other EU country, just as they would at home. Europeans will pay domestic prices when they call, text or go online from their mobile devices and will have full access to other parts of their mobile subscription (e.g. monthly data package).

The new draft allows operators to check usage patterns to avoid the “Roam like at Home” mechanism is abused. A non-exhaustive list of criteria includes:

  • insignificant domestic traffic compared to roaming traffic;
  • long inactivity of a given SIM card associated with use mostly, if not exclusively, while roaming;
  • subscription and sequential use of multiple SIM cards by the same customer while roaming.

In such cases, operators will have to alert their users. Only if these conditions are met, operators will be able to apply small surcharges (the Commission proposed a maximum of €0.04/min per call, €0.01/SMS and €0.0085/MB). In case of disagreement, complaints procedures must be put in place by the operator. If the dispute persists the customer may complain to the national regulatory authority which will settle the case.

Abuses could also be related to the mass purchase and resale of SIM cards for permanent use outside the country of the operator issuing them. In such cases, the operator will be allowed to take immediate and proportionate measures while informing the national regulator.

The Commission will adopt the final proposal by 15 December 2016, following feedback from the Body of European Regulators in Electronic Communications, Member States and all interested parties.

Social Affairs – 25 July 2016

The European Commission adopted a Communication re-examining its proposal for a revision of the Posting of Workers Directive in the context of the subsidiarity control mechanism that several national parliaments triggered in May. After careful consideration of their views, the Commission concludes that the proposal for a revision of the Directive does not constitute a breach of the subsidiarity principle.

The Commission reaffirms that it is appropriate to define at EU level the rules applicable to the posting of workers, as it has been the case since 1996. The proposal seeks to ensure that workers carrying out work at the same location are protected by the same mandatory rules, irrespective of whether they are local workers or posted workers. The obligation for all Member States to apply the rules in all sectors of the economy cannot be established at national level but must be laid down at Union level. The proposal furthermore fully and explicitly respects the competence of Member States to set wages in accordance with national practices.

On 8 March 2016, the Commission presented a proposal (COM(2016) 128 final) for a targeted revision of the Posting of Workers Directive (Directive 96/71/EC), defining a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers. It provides that the principle of equal treatment with local workers will also cover posted temporary agency workers, thereby aligning the current legislation on temporary agency work.

In each Member State, due to two-chamber systems in a number of countries, the Parliament has two votes in the framework of the subsidiarity control mechanism. Fourteen chambers of national Parliaments from eleven Member States (Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) sent reasoned opinions claiming that the proposal was in breach of the principle of subsidiarity. This triggered the subsidiarity control mechanism (the so-called ‘yellow card’ procedure). In addition, national parliaments from five Member States (France, Italy, Portugal, Spain and United Kingdom) submitted opinions that the Commission’s proposal was indeed compatible with the principle of subsidiarity.

Financial Markets – 10 June 2016

La Commission opened the European Investment Project Portal (EIPP), an online platform bringing together European project promoters and investors from the EU and beyond. The Portal will increase the visibility of projects to invest in across Europe.

The European Fund for Strategic Investments (EFSI) is at the heart of the Commission’s Investment Plan. Managed by the EIB Group, it should deliver on mobilising at least EUR 315 billion in additional investments in the real economy by mid-2018. The EFSI provides a first loss guarantee, so that the EIB has been able to invest in more projects, sometimes riskier projects, and to invest sooner than without the EFSI. Overall, the EFSI is already active in 26 Member States and is expected to trigger EUR 100 billion in investment with the approvals given so far. Small and medium-sized enterprises (SMEs) have benefited particularly from the EFSI so far. To encourage more EFSI activity in the Member States lagging behind so far, the EIB and the Commission will increase their local outreach.

The European Investment Advisory Hub (EIAH) provides technical assistance and tailored advice to private and public project promoters.

In February, the Commission issued guidance on how European Structural and Investment Funds (ESI Funds) can be combined with the EFSI to enable as much investment as possible.

Finally, the Commission has already taken a number of steps to improve the business environment and financing conditions as part of the Investment Plan’s third pillar. Initiatives include lowering capital charges for insurance and reinsurance companies.

Building on these positive results, the Commission proposes the following way forward.

  • To facilitate venture capital investment in Europe, the Commission will also propose some changes to the venture capital regulatory framework.
  • Together with Eurostat, the Commission will provide further clarity and review, where appropriate, relevant guidance as regards accounting aspects of public-private partnerships. To offer further legal certainty to investors as regards the financing of infrastructure, the Commission has provided practical guidance on what constitutes State aid, in the form of a Communication on the Notion of State aid.
  • Reflecting on its success so far, a reinforced EFSI will continue beyond the initial three-year period. The Commission will present legislative proposals in the autumn to extend the duration of the EFSI, bearing in mind the scarcity of budgetary resources.
  • One of the biggest success stories of the EFSI has been the strong interest and participation by intermediary banks across the EU to provide finance to SMEs, the so-called EFSI SME-window. This will be scaled up quickly, under the current framework, for the benefit of SMEs and mid-cap companies in all Member States. The Commission will work with the EFSI Steering Board to use all the existing possibilities under the EFSI Regulation to reinforce the SME window.
  • The Commission will explore the possibility of using an EFSI-type model for investments in developing third countries.
  • The combination of EFSI support and ESI Funds will be further simplified and legislative and other obstacles to such combinations removed.
  • The Advisory Hub will be enhanced to be able to work more locally and to enhance its work with National Promotional Banks.
  • Establishing Investment Platforms will be further encouraged, with strong engagement from the Commission, the EIB Group, National Promotional Banks and other relevant actors. This is particularly important for small projects to reach scale.
  • Energy efficiency is undoubtedly one of the most successful sectors under the EFSI. The EFSI will continue to contribute to the development of the market for sustainable/green projects, by encouraging the development of a green bond market in Europe and improved coordination of existing efforts.

Digital Economy – 27 May 2016

The European Commission has proposed a package to boost and stabilise the European Digital Single Market.

  • A legislative proposal to address unjustified geoblocking and other forms of discrimination on the grounds of nationality, residence or establishment. It would ensure that consumers seeking to buy products and services in another EU country, be it online or in person, are not discriminated against in terms of access to prices, sales or payment conditions, unless this is objectively justified for reasons such as VAT or certain public interest legal provisions. It would exempt small businesses that fall under a national VAT threshold from certain provisions.
  • A legislative proposal on cross-border parcel delivery services to increase the transparency of prices and improve regulatory oversight. It is not proposing a cap on delivery prices, but will take stock of progress made in 2019 and assess if further measures are necessary.
  • A legislative proposal to strengthen enforcement of consumers’ rights and guidance to clarify, among others, what qualifies as an unfair commercial practice in the digital world. National authorities would be able to check if websites geo-block consumers or offer after-sales conditions not respecting EU rules; order the immediate take-down of websites hosting scams; request information from domain registrars and banks to detect the identity of the responsible trader.

A proposal on VAT simplification is planned for autumn 2016.

Digital Economy – 20 April 2016

The Commission presented an action plan that tends to:

  • help coordinate national and regional initiatives on digitising industry by maintaining a continuous EU-wide dialogue with all actors involved. A governance framework will be set up with Member States and industry.
  • focus investments in EU’s public-private partnerships and strongly encourage the use of the opportunities offered by the EU Investment Plan and European Structural and Investment Funds.
  • invest €500 million in a pan-EU network of digital innovation hubs (centres of excellence in technology) where businesses can obtain advice and test digital innovations.
  • set up large-scale pilot projects to strengthen internet of things, advanced manufacturing and technologies in smart cities and homes, connected cars or mobile health services.
  • adopt future-proof legislation that will support the free flow of data and clarify ownership of data generated by sensors and smart devices. The Commission will also review rules on safety and liability of autonomous systems.
  • present an EU skills agenda that will help give people the skills needed for jobs in the digital age.

The European Cloud initiative (press release) also forms part of this package and will help Europe lead in the data-driven economy.

The Commission also proposes measures to speed up the standard setting process by:

  • focusing on five priority areas, when asking industry and standardisation bodies to work on standards. These areas are: 5G, cloud computing, internet of things, data technologies and cybersecurity.
  • co-financing the testing and experimentation of technologies to accelerate standards setting including in relevant public-private partnerships.

As regards, digital public services, the Commission puts forward 20 measures to be launched by the end of 2017. The Commission will notably:

  • set up a digital single gateway enabling users to obtain all information, assistance and problem-solving services needed to operate efficiently across borders.
  • interconnect all business registries and insolvency registers and connect them to the e-justice portal, which will become a one-stop shop.
  • set up a pilot project with administrations that will apply the “once-only” principle for businesses across borders. This means companies will only need to provide paperwork to public authorities in one EU country, even if they operate in other EU Member States.
  • help EU Member States develop cross-border e-health services such as e-prescriptions and patient summaries.
  • accelerate the transition to e-procurement, e-signatures and implementation of the “once-only” principle in public procurement.

Taxation – 14 April 2016

The Commission has proposed a directive to require multinationals operating in the EU with global revenues exceeding EUR 750 million a year to publish key information on where they make their profits and where they pay their tax in the EU on a country-by-country basis.

The same rules would apply to non-European multinationals doing business in Europe. In addition, companies would have to publish an aggregate figure for total taxes paid outside the EU.

The proposal builds on the Commission’s work to tackle corporate tax avoidance in Europe. It will amend Directive 2013/34/EU.

Financial Markets – 7 April 2016

As a result of one of the first measures in the Capital Markets Union Action Plan, insurers will find it more attractive and cheaper to invest in infrastructure projects of the Investment Plan for Europe from 2 April 2016 onwards.

The European Commission proposed an amendment to EU prudential rules, known as Solvency II directive. The insurance industry is well-equipped to provide long-term finance by investing in equity shares as well as loans of infrastructure projects, but currently less than 1% of their total assets are allocated for this purpose. As a result of this change to Solvency II, insurers will have to allocate less capital and find it more attractive to increase investment and play a bigger role in European infrastructure projects.

Based on expert advice from the European Insurance and Occupational Pensions Authority (EIOPA), the delegated act lowers certain requirements for investing in so–called qualifying infrastructure projects. In particular, it lowers the risk charges for insurers’ equity and debt investments in these projects, under the standard formula for calculating capital requirements in Solvency II. The risk calibration for investment in unlisted equity shares of such projects has been reduced from 49% to 30%. Risk charges for investments in infrastructure debt were also reduced by up to 40%.

Taxation – 7 April 2016

The European Commission has presented an Action Plan setting out ways to reboot the current EU VAT system to make it simpler, more fraud-proof and business-friendly.

The current VAT rules urgently need to be updated so they can better support the Single Market, facilitate cross-border trade and keep pace with today’s digital and mobile economy.

The ‘VAT gap’, which is the difference between the expected VAT revenue and VAT actually collected in Member States, was almost €170 billion in 2013. Cross-border fraud itself is estimated to be responsible for a VAT revenue loss of around €50 billion a year in the European Union. At the same time, the current VAT system remains fragmented and creates significant administrative burdens, especially for SMEs and online companies.

The Action Plan sets out a pathway to modernise the current EU VAT rules, including:

  • key principles for a future single European VAT system;
  • short term measures to tackle VAT fraud;
  • update the framework for VAT rates and set out options to grant Member States greater flexibility in setting them;
  • plans to simplify VAT rules for e-commerce in the context of the Digital Single Market (DSM) Strategy and for a comprehensive VAT package to   make life easier for SMEs.

Digital Economy – 22 March 2016

The European Commission has published initial findings on geo-blocking.

The information was gathered by the Commission as part of its ongoing antitrust sector inquiry into the e-commerce sector, launched in May 2015. In particular, the replies from more than 1400 retailers and digital content providers from all 28 EU Member States show that geo-blocking is common in the EU for both consumer goods and digital content.

More and more goods and services are traded over the internet but cross-border online sales within the EU are only growing slowly. The Commission’s initial findings from the sector inquiry published address a practice, so-called geo-blocking, whereby retailers and digital content providers prevent online shoppers from purchasing consumer goods or accessing digital content services because of the shopper’s location or country of residence.

In some cases, geo-blocking appears to be linked to agreements between suppliers and distributors. Such agreements may restrict competition in the Single Market in breach of EU antitrust rules. In contrast, if geo-blocking is based on unilateral business decisions by a company not to sell abroad, such behaviour by a non-dominant company falls clearly outside the scope of EU competition law.

There are a number of reasons for retailers and service providers not to sell cross-border and the freedom to choose one’s trading partner remains the basic principle. Against that background, it is a key priority of the Commission to address unjustified barriers to cross-border e-commerce with legislative actions as part of its Digital Single Market Strategy and it will come forward with further legislative proposals in May. The common objective of competition enforcement and the Commission’s legislative initiatives is to create an area where European citizens and businesses can seamlessly access and exercise online activities, irrespective of their place of residence.

The sector inquiry has found that 38% of the responding retailers selling consumer goods, such as clothes, shoes, sports articles and consumer electronics online use geo-blocking. For these products, geo-blocking mainly takes the form of a refusal to deliver abroad. Refusals to accept foreign payment methods, and, to a lesser extent, re-routing and website access blocks are also used. While a majority of such geo-blocking results from unilateral business decisions of retailers, 12% of retailers report contractual restrictions to sell cross-border for at least one product category they offer.

As regards online digital content, the majority (68%) of providers replied that they geo-block users located in other EU Member States. This is mainly done on the basis of the user’s internet protocol (IP) address that identifies and gives the location of a computer/smartphone. 59% of the responding content providers indicated that they are contractually required by suppliers to geo-block. There are significant differences as regards the prevalence of geo-blocking between different digital content categories and EU Member States.

A more detailed analysis of all findings from the on-going e-commerce sector inquiry will be presented in a Preliminary Report due to be published for public consultation in mid-2016. The Final Report is scheduled for the first quarter of 2017.

Social Affairs – 16 March 2016

The European Commission presented a preliminary outline of the European Pillar of Social Rights announced by President Juncker in September 2015 and launches along and broad public consultation to gather views and feedback from other European institutions, national authorities and parliaments, social partners, stakeholders, civil society, experts from academia and citizens. This initiative is targeted at the euro area, while allowing other EU Member States to join if they want to do so. The online consultation will run until the end of 2016. 

This consultation covers policies regarding skills and life-long learning, social doialogue, integrated social benefits, healthcare, pensions, unemployment benefits, minimum income, disability, lang-term care, childcare, housing, labour contracts, access to essential services, profesional transitions, support to employment, gender equality, equal opportunities, employment conditions, wages, health and safety at work.

Energy Policy – 3 March 2016

The Commission presented its Energy Security Package. It includes :

  • Security of Gas Supply Regulation: the Commission proposes a shift from national approach to a regional approach when designing security of supply measures and a solidarity principle among Member States to ensure the supply of households and essential social services, such as healthcare, in case their supply was affected due to a severe crisis.
  • Intergovernmental Agreements in energy: the EU needs to ensure that intergovernmental agreements signed by its Member States with third countries and relevant to EU gas security are more transparent and fully comply with EU law. To that end it introduces an ex-ante compatibility check by the Commission. This ex-ante assessment makes it possible to check compliance with competition rules and internal energy market legislation before the agreements are negotiated, signed and sealed. The Member States will have to take full account of the Commission’s opinion ahead of signing the agreements.
  • Liquefied natural gas (LNG) and gas storage strategy: significant regional disparities as regards access to LNG remain. The central elements of the EU strategy are building the strategic infrastructure to complete the internal energy market and identifying the necessary projects to end single-source dependency of some of the Member States.
  • Heating and Cooling strategy: the proposed Heating and Cooling strategy focuses on removing barriers to decarbonisation in buildings and industry. It also stresses that increased energy efficiency and use of renewables will have an impact on energy security.

Digital Economy – 3 February 2016

The European Union and America have reached a deal on data protection. The “EU- US Privacy Shield” allows companies to store Europeans’ personal data on American computers. This ends a three-month hiatus since the European Court of Justice struck down the previous agreement, “Safe Harbour”, on the grounds that it gave insufficient protection against snooping by American spy agencies.

Failure to reach a deal could have sparked a damaging legal spat, in which some European national data protection agencies could have ruled illegal all transfers of data across the Atlantic.

Taxation – 3 February 2016

The European Commission  made new proposals to tackle corporate tax avoidance. The Anti Tax Avoidance Package calls on Member States to take a stronger and more coordinated stance against companies that seek to avoid paying their fair share of tax and to implement the international standards against base erosion and profit shifting.

Key features of the new proposals include:

  1. Legally-binding measures to block the most common methods used by companies to avoid paying tax;
  2. A recommendation to Member States on how to prevent tax treaty abuse;
  3. A proposal for Member States to share tax-related information on multinationals operating in the EU;
  4. Actions to promote tax good governance internationally;
  5. A new EU process for listing third countries that refuse to play fair.

The two legislative proposals of the Package will be submitted to the European Parliament for consultation and to the Council for adoption. The Council and Parliament should also endorse the Tax Treaties Recommendation and Member States should follow it when revising their tax treaties. Member States should also formally agree on the new External Strategy and decide on how to take it forward as quickly as possible once it has been endorsed by the European Parliament.

Collectively, these measures are design to hamper aggressive tax planning, boost transparency between Member States and ensure fairer competition for all businesses in the Single Market.

Last October, OECD countries agreed on measures to limit tax base erosion and profit shifting (BEPS). The European Parliament has also developed recommendations on corporate tax avoidance.

Major initiatives put forward by the Commission in 2015 to boost tax transparency and reform corporate taxation are already reaping results: the proposal for transparency on tax rulings was agreed by Member States in only seven months and a number of other substantial corporate tax reforms have been launched. The Commission will continue its campaign for corporate tax reform throughout 2016, with important proposals such as the re-launch of the Common Consolidated Corporate Tax Base (CCCTB).

Digital Economy – 15 December 2015

The European Commission proposed a Regulation on the cross-border portability of online content services.

More will be proposed in spring 2016 to improve the cross-border distribution of television and radio programmes online (via the review of the Satellite and Cable Directive) and to facilitate the granting of licences for cross-border access to content. The Commission will also help give new life to works which are no longer commercialised.

The Commission will assess if the online use of copyright-protected works, resulting from the investment of creators and creative industries, is properly authorised and remunerated through licences. It will look at the role of news aggregation services.

In the future, effective and uniform application of copyright legislation across the EU, by national legislators and the courts alike will be as important as the rules themselves. While today all conditions are not met to consider full alignment of copyright rules across the EU in the form of a single copyright code and single copyright title, this remains an aspiration for the future, according to the Commission.

Digital Economy – 15 December 2015

A trilogue agreement between the European Parliament and the Council of the Union was reached on the EU data protection reform. The Commission’s proposal was published almost four years ago, in January 2012.

The General Data Protection Regulation will enable people to better control their personal data.

According to the Commission:

  • individuals will have more information on how their data is processed and this information should be available in a clear and understandable way ;
  • it will be easier to transfer personal data between service providers ;
  • the « right to be forgotten” has been clarified ;
  • individuals will have the right to know when your data has been hacked

Furthermore, one Data Protection Directive for the police and criminal justice sector will ensure that the data of victims, witnesses, and suspects of crimes, are duly protected in the context of a criminal investigation or a law enforcement action.

Circular Economy – 2 December 2015

The European Commission has adopted an ambitious new Circular Economy. The proposed actions will contribute to “closing the loop” of product lifecycles through greater recycling and re-use, and bring benefits for both the environment and the economy. The plans will extract the maximum value and use from all raw materials, products and waste, fostering energy savings and reducing Green House Gas emissions. The proposals cover the full lifecycle: from production and consumption to waste management and the market for secondary raw materials.

Key actions adopted or to be carried out under the current Commission’s mandate include:

  • Funding of over €650 million under Horizon 2020 and €5.5 billion under the structural funds;
  • Actions to reduce food waste including a common measurement methodology, improved date marking, and tools to meet the global Sustainable Development Goal to halve food waste by 2030;
  • Development of quality standards for secondary raw materials to increase the confidence of operators in the single market;
  • Measures in the Ecodesign working plan for 2015-2017 to promote reparability, durability and recyclability of products, in addition to energy efficiency;
  • A revised Regulation on fertilisers, to facilitate the recognition of organic and waste-based fertilisers in the single market and support the role of bio-nutrients;
  • A strategy on plastics in the circular economy, addressing issues of recyclability, biodegradability, the presence of hazardous substances in plastics, and the Sustainable Development Goals target for significantly reducing marine litter;
  • A series of actions on water reuse including a legislative proposal on minimum requirements for the reuse of wastewater.

A revised legislative proposal on waste sets clear targets for reduction of waste and establishes an ambitious and credible long-term path for waste management and recycling. Key elements of the revised waste proposal include:

  • A common EU target for recycling 65% of municipal waste by 2030;
  • A common EU target for recycling 75% of packaging waste by 2030;
  • A binding landfill target to reduce landfill to maximum of 10% of all waste by 2030;
  • A ban on landfilling of separately collected waste;
  • Promotion of economic instruments to discourage landfilling ;
  • Simplified and improved definitions and harmonised calculation methods for recycling rates throughout the EU;
  • Concrete measures to promote re-use and stimulate industrial symbiosis –turning one industry’s by-product into another industry’s raw material;
  • Economic incentives for producers to put greener products on the market and support recovery and recycling schemes (e.g. for packaging, batteries, electric and electronic equipment, vehicles).

Single Market – 2 November 2015

The European Commission presented a roadmap to unleash the full potential of the Single Market. It will address diverging prices, sales conditions, or delivery options, if there are objective and verifiable reasons. Consumer Centres frequently receive consumer complaints involving unjustified differences in treatment on grounds of nationality or residence.

Regarding SMEs and start-ups, the Commission intends to simplify VAT regulation, reduce the cost of company registration, put forward a proposal on business insolvency and make all information on regulatory requirements accessible in a single digital gateway. The Commission will also work on clear and SME-friendly intellectual property rules and take the steps needed for the Unitary Patent to become attractive.

The Commission also intends to improve the recognition of professional qualifications and facilitate the cross-border provision of business services, construction and other services that generate growth.

The Commission also said it will work hand in hand with Member States and market participants to create a real culture of compliance for Single Market rules.

The Commission will strengthen mutual recognition to open up more opportunities to companies that want to expand cross-border. It will propose a market information tool, which will allow the Commission to collect comprehensive, reliable and unbiased information from selected market players with a view to improve the Commission’s ability to monitor and enforce EU rules in priority areas.

Financial Markets – 1st October 2015

Commissioner Jonathan Hill (Financial Stability, Financial Markets and Capital Markets Union) presented a package of proposals and initiatives ss part of the Juncker Commission priority to boost jobs, growth and investment across the EU, the Capital Markets Union (CMU). It aims to tackle investment shortages head-on by increasing and diversifying the funding sources for Europe’s businesses and long-term projects.

Alternative sources of finance, complementary to bank-financing – including capital markets, venture capital, crowdfunding and the asset management industry – are more widely used in other parts of the world, and should play a bigger role in providing financing to companies that struggle to get funding, especially SMEs and start-ups. According to the European Commission, having more diversified sources of financing is good for investment and business but is also essential to financial stability, mitigating the impact of potential problems in the banking sector on companies and their access to finance. For this reason, CMU is also an important part of the work on the completion of the European Economic and Monetary Union.

The Commission also wants to break down barriers that are blocking cross-border investments in the EU to make it easier for companies and infrastructure projects to get the finance they need, regardless of where they are located.

The CMU is a medium-term project but with some important early initiatives. The Commission unveiled a first set of measures to relaunch high-quality securitisation, and to promote long-term investment in infrastructure. In addition, the Commission will announce proposed changes to the Prospectus Directive before the end of the year, with a view to making it easier and less expensive for small and medium-sized companies to raise capital.

In addition, the Commission has started two consultations on Venture Capital Funds and on Covered Bonds.

And in line with the principles of Better Regulation, the Commission is also launching a call for evidence on the cumulative impact of financial legislation — to make sure that it is working as intended without (for example) overlapping reporting requirements or inconsistencies between the various laws.

Trade – 18 September 2015

On 16 September, the European Commission has approved its proposal for a new and transparent system for resolving disputes between investors and states – the Investment Court System (ICS).

This is further to the adoption by the European Parliament, 436 in favour to 241 against,  of a resolution supporting the transatlantic trade deal (TTIP), as Parliament’s support came on the condition that the investor-state dispute settlement (ISDS) mechanism be replaced by another system.

The Investment Court System would replace the existing investor-to-state dispute settlement (ISDS) mechanism in all ongoing and future EU investment negotiations, including the EU-US talks on a Transatlantic Trade and Investment Partnership (TTIP).

The proposal for an Investment Court System builds on the substantial input received from the European Parliament, Member States, national parliaments and stakeholders through the public consultation held on ISDS. It is intended to ensure that all actors can have full trust in the system. Built around the same key elements as domestic and international courts, it enshrines governments’ right to regulate and ensures transparency and accountability.

The proposal for the new court system includes major improvements such as:

  • a public Investment Court System composed of a first instance Tribunal and an Appeal Tribunal would be set up;
  • judgements would be made by publicly appointed judges with high qualifications, comparable to those required for the members of permanent international courts such as the International Court of Justice and the WTO Appellate Body;
  • the new Appeal Tribunal would be operating on similar principles to the WTO Appellate Body;
  • the ability of investors to take a case before the Tribunal would be precisely defined and limited to cases such as targeted discrimination on the base of gender, race or religion, or nationality, expropriation without compensation, or denial of justice;
  • governments’ right to regulate would be enshrined and guaranteed in the provisions of the trade and investment agreements.

This builds on the EU’s existing approach which ensures:

  • proceedings will be transparent, hearings open and comments available on-line, and a right to intervene for parties with an interest in the dispute will be provided;
  • Forum–shopping is not possible;
  • Frivolous claims will be dismissed quickly;
  • A clear distinction between international law and domestic law will be maintained;
  • Multiple and parallel proceedings will be avoided.

The Commission will now have discussions with the Council and the European Parliament. Once the text of the proposal has been discussed, it will be presented as an EU text proposal in the EU-US trade talks and will be used in other ongoing and future negotiations.

Finally, in parallel to the TTIP negotiations, the Commission will start work, together with other countries, on setting up a permanent International Investment Court. The objective is that over time the International Investment Court would replace all investment dispute resolution mechanisms provided in EU agreements, EU Member States’ agreements with third countries and in trade and investment treaties concluded between non-EU countries.

Taxation –  4 September 2015

VAT revenue collection has failed to show significant improvement across EU Member States according to the latest figures released by the European Commission today.

Based on VAT collection figures from 2013, the overall difference between the expected VAT revenue and the amount actually collected (the so-called “VAT Gap”) did not improve on 2012. While 15 Member States including Latvia, Malta and Slovakia saw an improvement in their figures, 11 Member States such as Estonia and Poland saw deterioration.

The total amount of VAT lost across the EU is estimated at €168 billion, according to the report. This equates to 15.2% of revenue loss due to fraud and evasion, tax avoidance, bankruptcies, financial insolvencies and miscalculation in 26 Member States.

As well as setting out detailed data on the difference between the amount of VAT due and the amount actually collected in Member States in 2013, the latest VAT Gap study gives an indication of the effectiveness of VAT enforcement and compliance measures. The main trends in VAT collection are also presented, along with an analysis of the impact of the economic climate and policy decisions on VAT revenues.

In 2013, the estimated VAT gaps of Member States ranged between 4 percent in Finland, the Netherlands and Sweden to 41 percent in Romania.

European Union

The European Commission adopted its Better Regulation Agenda. It will open up its policy making process to further public scrutiny and input, with a web portal where initiatives can be tracked and new public consultations when it is evaluating existing policies or assessing possible new proposals. There will also be new opportunities for stakeholder comments throughout the entire policy lifecycle, from the initial Roadmap to the final Commission proposal. After the Commission has adopted a proposal, any citizen or stakeholder will have 8 weeks to provide feedback or suggestions which will feed into the legislative debate before Parliament and Council.

This transparent approach will also apply to secondary legislation, e.g. delegated acts and implementing acts. Draft measures which amend or supplement existing legislation, or which set out specific technical provisions, will be made public for 4 weeks before adoption. This will allow for stakeholder comments prior to their adoption by the Commission or Member State experts.

The Regulatory Fitness and Performance Programme (REFIT), which assesses the existing stock of EU legislation to make it more effective and efficient without compromising policy objectives, will be strengthened. The Commission will establish a platform with high-level experts from business, civil society, social partners, the Economic and Social Committee, the Committee of Regions and Member States.

The Commission is also strengthening its approach to impact assessment and evaluations. In particular, the Commission’s Impact Assessment Board, operating since 2006, will be transformed into an independent Regulatory Scrutiny Board. Its members will have a more independent status and half of them will be recruited from outside the Commission. The board will have an expanded role in checking the quality of impact assessments of new proposals as well as fitness checks and evaluations of existing legislation.

The Commission also proposes that impact assessments are conducted throughout the legislative process, not just when the Commission prepares its proposal. The Commission wishes that the Parliament and the Council of the Union also carry out impact assessments of any substantial amendments they propose during the legislative process. An ad hoc and independent technical panel can be set up upon request of the Parliament, Council or Commission to analyse whether an amended proposal is practical to implement, creates understandable rights and obligations for the interested parties, and avoids disproportionate costs. Its assessment should be finalised and made public.

Taxation

The European Parliament and the Council of the Union have reached a compromise in trilogue on the strengthening of the fight against tax evasion and terrorist financing.

The fourth anti-money laundering directive (AMLD) will for the first time oblige EU member states to keep central registers of information on the ultimate “beneficial” owners of corporate and other legal entities, as well as trusts. These central registers were not envisaged in the European Commission’s initial proposal, but were included by MEPs in negotiations. The text also sets out specific reporting obligations for banks, auditors, lawyers, real estate agents and casinos, among others, on suspicious transactions made by their clients.

The central registers will be accessible to the authorities and their financial intelligence units (without any restriction), to “obliged entities” (such as banks doing their “customer due diligence” duties), and also to the public. To access a register, a person or organisation will in any event have to demonstrate a “legitimate interest” in suspected money laundering, terrorist financing and in “predicate” offences that may help to finance them, such as corruption, tax crimes and fraud. These persons could access information such as the beneficial owner’s name, month and year of birth, nationality, country of residence and details of ownership. Any exemption to the access provided by member states will be possible only “on a case-by-case basis, in exceptional circumstances”.

The text clarifies the rules on “politically-exposed” persons”, such as heads of state, members of government, supreme court judges, and members of parliament, as well as their family members.

Member states will have two years to transpose the anti-money laundering directive into their national laws.

Digital Economy

The European Commission has launched a competition inquiry into the e-commerce sector in the European Union in the context of the Digital Single Market Strategy. The sector inquiry will focus on those goods and services in which e-commerce is most widespread: electronics, clothing and shoes, as well as digital content. It will cover all EU Member States.

Under the Antitrust Regulation (Council Regulation 1/2003), the Commission has the power to conduct inquiries into a particular sector of the economy (or a particular type of agreements across various sectors) where the level of trade between Member States, rigidity of prices or other circumstances suggest that competition may be distorted within the internal market.

In case the Commission identified specific concerns, it can open case investigations to ensure compliance with EU competition rules.

Other antitrust inquiries have been carried out in recent years in fields including pharmaceuticals, energy and financial services.

In the coming weeks, the Commission will send requests for information to a range of stakeholders: manufacturers, wholesalers, e-commerce retailers. The Commission expects to publish a preliminary report for consultation in mid-2016. The final report is expected in the first quarter of 2017.

Single Market

After two years of inter-institutional discussions, the Commission, the European Parliament and the Council have reached a political agreement on the EU Trade Mark reform package, which concerns two legal instruments:

  1. The 1989 Directive (now codified as 2008/95/EC) approximating the laws of the   Member States relating to trade marks;
  2. The 1994 Regulation (now codified as 207/2009/EC) on the Community trade mark

The cornerstones of the trade mark reform are:

  • Significant reductions of the fees for European Union trade marks covering all 28 Member States, up to 37%, in particular beyond an initial period of 10 years;
  • Streamlined, more efficient and harmonised registration procedures across all trade mark offices in the E;
  • Strengthened means to fight against counterfeits in particular of goods in transit through the EU’s territory;
  • Modernised rules and increased legal certainty by adapting trade mark rules to the modern business environment and clarifying trade mark rights and their limitations.

The political agreement requires to be formally confirmed by the European Parliament and the Council in the coming weeks.

Taxation

The Commission has proposed to require Member States to automatically exchange information on their tax rulings. The Commission proposes to set a strict timeline: every three months, national tax authorities will have to send a short report to all other Member States on all cross-border tax rulings that they have issued. Member States will then be able to ask for more detailed information on a particular ruling.

The automatic exchange of information on tax rulings will enable Member States to detect certain abusive tax practices by companies and take the necessary action in response. Moreover, it should also encourage healthier tax competition, as tax authorities will be less likely to offer selective tax treatment to companies once this is open to scrutiny by their peers.

Currently, Member States share very little information with one another about their tax rulings. It is at the discretion of the Member State to decide whether a tax ruling might be relevant to another EU country. As a result, Member States are often unaware of cross-border tax rulings issued elsewhere in the EU which may impact their own tax bases. The lack of transparency on tax rulings is being exploited by certain companies in order to artificially reduce their tax contribution.

However, the Commission has not proposed to make such information exchange public. The Green group, and mybe others, are likely to request such requirement when the legislative proposal will be discussed by the European Parliament  in the coming weeks.

Social Affairs

The European Commission wishes to relaunch the Social Dialogue at European scale, which had been initiated in the 1980s by President Delors to go along with the Single Market. Such dialogue died out with the 2004 enlargement and the 2008 financial crisis.

President Juncker believes that it is necessary today as a contribution to major economic reforms undertaken within the European Semester framework. Vice-President Dombrovskis, in charge of coordinating the Commission’s action regarding the Economic and Monetary Union, was given a portfolio entitled “euro and social dialogue” to this end. BusinessEurope, the European industry organisation, said it would support such initiative to foster European competitiveness.

Energy

Member states’ energy deals with non-EU nations should be scrutinised by the European Commission before they are signed, according to a draft plan for the flagship Energy Union that outlines a strategy to diversify energy suppliers. While some member states may bristle at a perceived Brussels power grab, the drive for “mandatory pre-consultation” stems from a series of IGAs signed by Russia and six EU countries: Bulgaria, Hungary, Greece, Slovenia, Croatia and Austria.

“Active participation” in gas negotiations could avoid “undue pressure or market distortions,” caused by inter-governmental agreements (IGAs) with “countries not respecting European rules”, the draft said. The IGAs would be assessed to ensure they comply with EU energy market and supply security rules in a “mandatory pre-consultation” with the Commission.

EU governments must currently notify the executive of IGAs that affect the internal energy market or supply security. Revisions to these 2012 rules should broaden this scope to other types of contracts, the draft said.

A Commission communication on the Energy Union is scheduled for publication on 25 February.

European Union

The Commission Work Programme adopted sets out the 23 initiatives the Commission is politically committed to delivering in 2015. It notably committed to deliver in 2015:

  1. An Investment Plan for Europe: the legislative follow-up to the Plan announced in November 2014, unlocking public and private investments in the real economy of at least € 315 billion over the next three years.
  2. An Ambitious Digital Single Market Package: creating the conditions for a vibrant digital economy and society by complementing the telecommunications regulatory environment, modernising copyright rules, simplifying rules for consumers making online and digital purchases, enhancing cyber-security and mainstreaming digitalisation.
  3. The first steps towards a European Energy Union: to ensure energy supply security, further integrate national energy markets, reduce European energy demand and decarbonise the energy mix.
  4. A Fairer Approach to Taxation: An Action Plan on efforts to combat tax evasion and tax fraud, including measures at EU level in order to move to a system on the basis of which the country where profits are generated is also the country of taxation; including automatic exchange of information on tax rulings and stabilising corporate tax bases.
  5. A European Agenda on Migration: developing a new approach on legal migration to make the EU an attractive destination for talent and skills and improving the management of migration into the EU through greater cooperation with third countries, solidarity among our Member States and fighting human trafficking.
  6. Deeper Economic and Monetary Union: Continued efforts to promote economic stability and attract investors to Europe.

Taxation

The Council of the Union approved an amendment to an EU directive with the aim of preventing tax avoidance and aggressive tax planning by corporate groups. To this end, it agreed that it would introduce a binding anti-abuse clause as a “de minimis” rule in the EU’s parent-subsidiary directive (16435/14).

The anti-abuse clause is aimed at preventing misuses of the directive and ensuring a greater consistency in its application in different member states. It requires governments to refrain from granting the benefits of the parent-subsidiary directive to an arrangement, or a series of arrangements, that are not “genuine” and have been put in place to obtain a tax advantage, while not reflecting economic reality.