Offentlig land-för-land-rapportering i EU – en kritisk studie av syfte och rättslig grund

Abstract

On April 12th 2016 the EU proposed new rules regarding mandatory public country-by-country rules for multinational enterprises with an annual turnover exceeding 750 million euro. However, the contradictory views on the correct legal basis for the legislation resulted in that the proposal was put on hold until the beginning of 2021 when changes in the preamble and subsequent acceptance of Article 50.2 (g) TFEU as the legal basis from the opposing member states enabled the process to move forward. The proposal was adopted on November 12th 2021, which means that the rules will be applicable for fiscal years starting on or after June 2024.

The thesis aims to analyze whether Article 50.2 (g) TFEU actually is the correct legal basis for the legislation and consequently if the directive is legitimate. The thesis also aims to describe the consequences of tax legislation being adopted without unanimity among the member states.

The election of a legal basis will depend on the content and the objectives of the measure. Regarding the proposal of mandatory public country-by-country reporting two legal bases have been discussed; the European Commission originally proposed that the rules were to be based on Article 50.2 (g) TFEU and considered as legislation in the area of accounting. The European Council opposed that view and held that the rules were to be considered as tax legislation and therefore should be based on Article 115 TFEU. According to the later provision a unanimous decision by the member states would be needed to adopt the legislation in oppose to only qualified majority voting.

Considering the true aim and the implications for affected enterprises and member states as well as the history of country-by-country-reporting and the special position given to tax law by the treaties, the conclusion of the thesis is that the correct legal basis for the rules are in fact Article 115 TFEU. Legislation with a clear connection to tax enforcement should, in my opinion, be adopted by a unanimous decision in order to guarantee the EU’s member states’ sovereignty and protect against the abuse of power by the EU in the area of taxation.