«Influence of EU Law on Taxation in the EU Member States' Overseas Territories and Crown Dependencies IN-DEPTH ANALYSIS Abstract This legal study ...»
Furthermore, EU law applies grosso modo to the trade in agricultural products according to Article 1(2) of that Protocol 3 to the UK Act of Accession and a non-discrimination obligation rests on these Crown Dependencies with respect to natural and legal persons on the basis of Article 4 of the aforementioned Protocol. With regard to tax law, only the Union Customs Code applies in conformity with the protocol.
2.1.6. Some exceptions to the rule According to Article 355(a) TFEU, EU law does not apply to the Danish Faeroe Islands44 and according to Article 355(b) TFEU, EU law does not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia on Cyprus. 45 As for the latter, the question arises to which extent EU law applies to the part of the Member State Cyprus where the government does not exercise effective control. According to Article 1(1) of the Protocol 10 to the Act of Accession of Cyprus (and nine other Member States) 46 the application of the acquis is suspended in that area.47 Be that as it may, this study will not research the application of EU law on the Faeroe Islands and Cyprus further.
2.2. Secondary EU law The territorial scope of secondary EU law follows the system of Art. 52 TEU and Art. 355 TFEU, unless specifically provided otherwise by the regulation or directive itself, i.e. in some A. W. Bradley, K. D. Ewing, Constitutional and Administrative Law, Volume 1, Essex: Pearson Education, 2007, 41 p. 12. Specifically with regard to Jersey, Sutton puts it: “the constitutional relationship between Jersey and the UK is not based on any formal constitutional document”; A. Sutton, “Jersey’s Changing Constitutional Relationship with Europe”, The Jersey Law Review - February 2005, at para. 27.
But part of Her Majesty’s possession; H. Barnett, Constitutional & Administrative Law, Oxon: Routledge, 2012, 42 p. 17. See further: A. W. Bradley, K. D. Ewing, Constitutional and Administrative Law, Volume 1, Essex: Pearson Education, 2007, p. 35.
The act concerning the conditions of accession for the Kingdom of Denmark, Ireland and the United Kingdom of 43 Great Britain and Northern Ireland and the adjustments to the Treaties (OJ 1972, L73/14).
Although a Free Trade Agreement applies with respect to the Faeroe Islands; Agreement between the European 44 Community, of the one part, and the Government of Denmark and the Home Government of the Faeroe Islands, of the other part (OJ 1998, L53/2).
Except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the 45 Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act of accession Cyprus (and 9 other Member States). For example, the VAT Directive applies to those bases (Article 7(1) of the VAT Directive) and they are part of the Customs Territory (Article 4(2) of the UCC).
Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, 46 the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003, L236/33).
Whereas the CJEU held that EU law did apply to a case concerning real estate located in the northern part of Cyprus 47 in a dispute on the execution in the UK of a judgment of a court in the southern part of Cyprus, between residents of the southern part of Cyprus and the UK; Case C-420/07, Apostolides 2009 [ECR] I-3571, ECLI:EU:C:2009:271;
see also Skoutaris, N., ‘The status of northern Cyprus under EU law. A comparative approach to the territorial suspension of the acquis’ in D. Kochenov (ed.), On bits of Europe everywhere. Overseas Possessions of the EU Member States in the Legal-Political Context of European Law, The Hague: Kluwer Law International, 2011.
regulations and directives the territorial scope is explicitly defined by deviating from this main rule.48 The CJEU concluded that secondary EU law therefore ”appl[ies] in principle to the same geographical area as the treaty itself”.49 2.3. Conclusion on the general framework of territorial scope The conclusion on the territorial scope of EU law is in Ziller's view that “E[U]-law applies to the entire territory of all Member States, but with a variable intensity”.50 This view is in the author's view correct, save three minor exceptions: (i) the Danish Faeroe Islands, to which EU law does not apply; (ii) Cyprus, with its northern part and the UK Sovereign Base Areas;
and (iii) the British Crown Dependencies which are not part of British territory, but to which (a part of) EU law applies. Those three exceptions do - in the author's view - not alter the quintessence Ziller's conclusion.
As for the OCT, some authors come to the conclusion that the OCTs fall outside the territorial scope of EU law.51 That is in the author's view an erroneous conclusion for two reasons.
Firstly, on the OCTs EU law is applicable, although not the vast part of EU law, but the association regime of Article 198 TFEU et seq., the OAD and some general rules/principles.
The association regime is EU law and therefore EU law applies to the OCTs, although with less 'intensity' than to the internal market. Secondly, it is only indicated that the Treaties do not apply to the Faeroe Islands and the UK Sovereign Base Areas on Cyprus; it is not indicated that the Treaties do not apply to the OCT. Therefore one cannot conclude that the OCT fall outside the territorial scope of EU law.
E.g. Art. 4 of the Union Customs Code defines the Customs Territory and Art. 5-7 of the VAT Directive explicitly 48 defines the territorial scope of that directive.
CJEU 16 February 1978, 61/77, Commission/Ireland 1978 [ECR] 417, para. 46, about fishery; and CJEU 28 January 49 1999, C-181/97, Van der Kooy 1999 [ECR] I-483, para. 34-41.
J. Ziller, “The European Union and the Territorial Scope of European Territories”, Victoria University of Wellington 50 Law Review (2007), volume 38, issue 1, p. 51-63.
Dotinga and Soons conclude that “the Carribean parts of the Kingdom of the Netherlands are excluded from the 51 territorial scope of the EU Treaty Regime”; H.M. Dotinga, A.H.A. Soons, “The Netherlands and the Law of the Sea”, in: T. Treves, L. Pineschi (red.), The law of the sea: the European Union and its member states, Leiden: Martinus Nijhoff Publishers, 1997, p. 365, at p. 365. Van den Burg shares the same - in the author's view erroneous - opinion;
F.H. van der Burg, Europees gemeenschapsrecht in de Nederlandse rechtsorde, Deventer: Kluwer 2003, p. 191 en 192
This chapter will examine the application of EU State aid law and its enforcement in tax matters in the overseas parts of the Member States. This chapter will not address the material definition of state aid in relation to fiscal regimes, such as for example the specificity-test with regard to fiscal state aid.
3.1. Outermost Regions As indicated in Chapter 2 above, the acquis applies to the OMR, although exceptions are possible. The application of the state aid rules of Article 107 TFEU et seq. is not excluded for the OMR.
According to Article 107(3)(a) TFEU aid to promote the economic development of the OMR may be considered compatible with the internal market, since the OMR are explicitly mentioned in this provision and assimilated to "areas where the standard of living is abnormally low or where there is serious underemployment (...), in view of their structural, economic and social situation".
The Commission has approved many state aid regimes on that basis. Even fiscal state aid cases, for example in the Customs House Docks Area in Dublin the deduction from the taxable profit of two times the actual rent paid (double rent relief) and a relief from the local property tax (local rates remission).52 Albeit Ireland is not an OMR, this case demonstrates that also fiscal state aid can be declared compatible on the basis of Article 107(3)(a) TFEU. The Commission also applied the justification of Article 107(3)(a) TFEU to fiscal state aid on (parts of) the OMR (see the examples in annex 2).
However, some fiscal regimes in the OMR were characterised as unlawful state aid, such as the reductions of the income tax rate for natural and legal persons having their tax residence in the Azores.53 3.2. Overseas Countries and Territories As indicated in Chapter 2 above, only the association regime of Article 198 TFEU et seq. and the OAD apply to the OCT. The state aid rules of Article 107 TFEU et seq. fall outside those provisions and are therefore not applicable. The OAD itself provides in Article 60 for the implementation of competition rules, but only for a cartel prohibition and a prohibition of the Decision 2000/620/EC of 22 December 1999 on aid scheme C 1/99 (ex NN 133/98)/State aid to non-residential 52 building tenants in the Customs House Docks Area in Dublin (OJ 2000, L260/37).
Decision 2003/442/EC of 11 December 2002 on the part of the scheme adapting the national tax system to the 53 specific characteristics of the Autonomous Region of the Azores which concerns reductions in the rates of income and corporation tax (OJ 2003 L 150, p. 52), upheld by the CJEU in Case C-88/03 Portugal/Commission 2006 [ECR] I-7115 ECLI:EU:C:2006:511.
abuse of a dominant position, similar to Articles 101 and 102 TFEU and does not provide for application of state aid rules similar to Article 107 TFEU et seq. The European Commission's decision with regard to state aid at the benefit of the inhabitants of the French OMR and OCT is instructive on this point.
“Actuellement seuls [les régions ultrapériphériques [RUP=OMR]] sont soumis[es] aux dispositions du traité (article 355, paragraphe 1, TFUE). Les [pays et territoires d'outre-mer (PTOM=OCT)] (…) ne font l'objet que du régime spécial d'association défini dans la quatrième partie du traité (article 355, paragraphe 2, TFUE). Ce régime d'association ne comprend pas les dispositions sur les aides d'Etat”.54 3.3. Gibraltar As indicated above in section 2.1.3., the provisions of the Treaties shall apply to Gibraltar, unless an exception is provided. The application of the state aid rules of Article 107 TFEU et seq. is not excluded. The Commission has initiated several state aid cases against fiscal regimes in Gibraltar (see the examples in annex 2).
3.4. Finnish Åland Islands As indicated above in section 2.1.4., the provisions of the Treaties shall apply to the Åland Islands unless derogations are provided for in Protocol 2 to the Act of Accession of Austria, Finland and Sweden. As for the state aid rules of Article 107 TFEU et seq. no derogations were made. Therefore the state aid rules apply to those islands. The Commission has initiated a state aid case against a fiscal regimes on the so-called captive insurance scheme (see annex 2).
3.5. The Channel Islands and Isle of Man As indicated above in section 2.1.5., only few provisions of EU law apply to the British Crown Dependencies. According to Article 1(2) of Protocol 3 to the UK Act of Accession, EU law applies grosso modo to (trade in) agricultural products. Also the state aid rules apply to (trade in) agricultural products, although limited Articles 108(1) TFEU and the first sentence of Article 108(3) TFEU on the basis of Article 2 Regulation 706/73.55 Consequently the Commission shall be notified by the UK of aid in the Crown Dependencies, it can propose appropriate measures, but it cannot oppose to the granting of such aids. With regard to direct taxation of companies on the Crown Dependencies, the state aid rules do not apply.
3.6. Conclusion on state aid law State aid law is not applicable to the OCT. As for the Channel Islands and the Isle of Man (a part of the) state aid law is only applicable to the agricultural sector and therefore not to fiscal state aid which might be offered in offshore tax constructions. State aid law is applicable to the OMR, Gibraltar and the Åland Islands. The European Commission has already initiated state aid cases with regard to tax measures in those regions (see annex II). As far as the authors is aware the French OMR, to which the state aid rules apply, are not known/(in)famous for offering off-shore tax structures. Besides, state aid is often allowed in the OMR since they are remote and economically disadvantaged regions.
Commission decision of 5 October 2010 in N 159/2010 concerning state aid at the benefit of the inhabitants of the 54 French overseas, para. 39 and footnote 15 (only available in French).
Regulation (EEC) No 706/73 of the Council of 12 March 1973 concerning the Community arrangements applicable 55 to the Channel Islands and the Isle of Man for trade in agricultural products (OJ 1973, L68/1).
In this chapter it will be specified to which extent current and/or future EU secondary law concerning direct and indirect taxes has to be implemented in the OCT and OMR. The focus of this chapter is on secondary tax law which affects the taxation of companies.
4.1.1. Internal Market Directives As indicated in section 1.1.2, above, in the field of direct taxation of companies, four
directives are in force:
the Parent-Subsidiary Directive;
the Interest and Royalty Directive;
the Merger Directive.
the Administrative Cooperation Directive.
These four directives are internal market directives and therefore only applicable to the overseas' parts of the Member State which are part of the internal market; i.e. the OMR.56 These directives also apply to Gibraltar. With regard to the internal market rules, only the rules and directives on the free movement of goods do not apply to Gibraltar, since it is outside the customs territory.57 As for the Finnish Åland Islands, no derogations from these directives were provided for and consequently the apply ratione territoriae on those islands.
Next to the aforementioned four directives, an inter-governmental Convention is in force between all the Member States on double taxation and transfer pricing. 58 Since this convention was concluded outside the ambit of the European Community, now European Union, this convention will not treated further for the purposes of this report.