This editorial examines a recent Commission practice of embedding tax provisions in broader non-tax legislative initiatives. This seemingly allows the Commission and potentially the EU legislator to rely on legal bases in the Treaty that permit qualified majority voting in the Council. The editorial tests the conformity of this approach with the EU Treaties and with established CJEU case law on the appropriate legal basis for ancillary regulatory regimes. In particular, it discusses to what extent the CJEU case law should also apply to the inclusion tax-related provisions in non-tax dossiers, as well as ramifications for the subsequent amendment of relevant tax regimes. To this effect, the analysis distinguishes the specific Treaty carve-outs for environmental and energy taxation under Articles 192(2)(a) and 194(3) TFEU from the broader exclusion of “fiscal provisions” in Article 114(2) TFEU. It argues for a qualitative rather than quantitative test and concludes that Article 114 TFEU leaves particularly little room for such ancillary tax harmonization. The editorial further proposes graduated judicial scrutiny according to the impact on national tax sovereignty and addresses emergency measures under Article 122 TFEU.
EC Tax Review