The Financial Transaction Tax Proposal under the Enhanced Cooperation Procedure: legal and practical considerations

This article examines the European Commission’s Proposal for a Council Directive implementing a Financial Transaction Tax through the enhanced cooperation procedure published on February 14, 2013. It starts by providing a brief description and analysis of the Proposal and the accompanying Impact Assessment, focusing on the newly added features of the proposed tax and its potential impact on both participating and non-participating Member States. Next, the article examines the Proposal from the perspective of public international law, discussing the controversial extraterritorial reach of the proposed tax. It is argued that doubts exist with respect to the compatibility of the “contagion effect” and the issuance principle with internationally recognised legal principles. The article then turns to EU law and considers the legal requirements imposed by the EU Treaties on the use of enhanced cooperation. Whilst raising some concerns in relation to the Proposal’s compliance with these requirements, the article concludes that the political and judicial controlling mechanisms in place appear weak and therefore the outcome of any potential political or judicial challenge remains uncertain. The importance of this debate is not limited to the financial transaction tax, but also extends to the use of enhanced cooperation in other areas of taxation and beyond.