On 25 October 2016, the European Commission released two proposals: one on a Common Corporate Tax Base (COM (2016) 685 Final.) (‘the CCTB Draft’) and one on a Common Consolidated Corporate Tax Base (COM (2016) 683 Final.) (‘the CCCTB Draft’). If these draft directives (‘the CC(C)TB Drafts’) were to be adopted, they would significantly change the tax landscape for companies operating throughout the European Union as well as for companies which are established in a third country but perform activities within the EU.
The goal of this article is not to provide for an overall description of the features of the CCTB and the CCCTB Drafts. It is rather to give an overview of the main provisions containing a cross-border element and to assess to what extent these new instruments may possibly collide, not only with EU primary law, but also with bilateral (or even multilateral) conventions on double taxation.
As a matter of fact, the CC(C)TB drafts do not only cope with the definition of new base rules for taxation of corporations acting within the European Union. Many corporations established in the European Union have branches and subsidiaries in other EU Member States as well as in third countries. Conversely, many corporations established outside the European Union perform their activities on the European market through branches and subsidiaries. It is therefore clear that by changing the rules applying to the definition of corporate income and to cross-border activities, the CC(C)TB Directives would indirectly impact the tax burden of multinational enterprises.
Besides, important provisions contained in the CC(C)TB drafts apply explicitly to income which have their source outside the European Union. The question how these new European territoriality rules will coexist with international tax treaties is therefore crucial to assess the impact of the harmonization process within the European Union.
The relationship between CC(C)TB and international taxation is however a very complex matter to study, as it raises both general questions regarding the interaction between different sources of normativity (treaties vs directives; treaties vs fundamental freedoms; directives vs fundamental freedoms) and very technical questions linked to the way the proposed provisions are worded.
Potential problems of incompatibility are all the more numerous as one of the major feature of CCTB and CCCTB consists in the enactment of new rules regarding territoriality and tax avoidance, which may worsen the taxpayer’s situation compared to existing rules (even compared with the anti-tax avoidance directive). Provisions affecting international taxation are spread in different sections of the CCTB and CCCTB drafts, with the effect that a coherent vision of the global impact of these drafts on international taxation is not easy to unveil.
This complexity of the topic explains why the authors of this article consider that a necessary preliminary step in the study consists in displaying, in a first section, a broad overview of the relationships between the CC(C)TB Drafts and the EU and international legal orders. This will provide an opportunity to assess how these draft directives interact, not only with fundamental freedoms, but also with double taxation treaties. The authors will refer to those principles throughout the article, when potential conflicts are identified.
A second section will be devoted to the scope of the CC(C)TB Drafts and to the analysis of their impact on situations involving a third country. The goal of this section will be to determine to what extent corporations which are either established in a third country or perform their activities in such a country are actually covered by the provisions of the draft directives.
The third section will provide more details on the territoriality rules which are laid down by EC Tax Review