Written by 12:15 pm European Union

European Union: Preliminary Agreement Reached on EU’s Pillar 2 Directive

Hungary drops opposition to EU’s Pillar 2 Directive

In a somewhat surprise move yesterday, it appears EU Member States actually managed to reach preliminary agreement on a minimum level of taxation for largest corporations, also known as the Pillar 2 Directive. The Committee of Permanent Representatives (or “COREPER II”) reached the required unanimous support yesterday.

Background

As previously announced during the press conference after the ECOFIN Council meeting held on 6 December 2022, in which the Pillar 2 Directive was dropped from the agenda at the last minute, the debate continued. The continued discussions were around a “package deal” covering not only the Pillar 2 Directive, but also an €18 billion support package for Ukraine and the adoption of the Hungarian plan for its share of the Recovery and Resilience Fund.

Zbyněk Stanjura, the Finance Minister of the Czech Republic which holds the EU’s presidency until the end of the year, released the following message: “I am very pleased to announce that we agreed to adopt the directive on the Pillar 2 proposal today. Our message is clear: The largest groups of corporations, multinational or domestic, will need to pay a corporate tax that cannot be lower than 15%, globally”.

However, during the COREPER II meeting, Poland indicated it had some study reservations on the Pillar 2 Directive, which it hopes to progress before proceeding to formally adopting the deal by written procedure (for which a deadline of 14 December 2022 is being reported). The reservation from Poland is the same concern that Poland raised earlier this year, when it vetoed the Pillar 2 Directive in April, namely that Pillar 2 should be analyzed and should be implemented concurrently with Pillar 1, as part of the two-pillar proposal.

As a next step, the formal adoption for all elements of this package deal will be done through written procedure. For the Pillar 2 Directive this means that the Pillar 2 Directive has not yet been formally adopted, but will now be adopted by the EU Council in said written procedure, which (after unanimity was reached by COREPER II who prepares Council decisions) is pretty much a formality. Once that has happened, the Pillar 2 Directive will require publication in the Official Journal of the European Union to enter into force.

Comments

It is our understanding that the agreement communicated yesterday was at Coreper level. Coreper is the Council’s main preparatory body. All items to be included into the Council’s agenda (except for some agricultural matters) must first be examined by Coreper, unless the Council decides otherwise. While it is important to note that Coreper is not an EU decision-making body, and any agreement it reaches can be called into question by the Council, which alone has the power to make decisions, we expect that the adoption by the Council is a mere formality. COREPER II agreed unanimously to advise the Council to adopt the overall package by written procedure.

While it is being reported that Poland has reiterated its previous concerns, we do not expect Poland to use its veto this time. With Hungary lifting its veto, this development may mean that the EU will be the frontrunner in implementation of Pillar 2, requiring EU Member States to transpose the Pillar 2 Directive into domestic laws by the end of 2023 as originally agreed in the Inclusive Framework October 2021 Statement. It seems only a matter of time that other jurisdictions will follow. We are closely monitoring this development and will keep you informed of any updates.

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