European Policy Analysis Volume 2, Number 1, Spring 2016 | Page 51

European Policy Analysis

EIOPA then proceeds to drop the
ball—or should we say the bombshell—
entirely by plainly stating: “Given its lack
of tax expertise, EIOPA will not further
develop any work in relation to tax issues
nor will it include tax related proposals
in its Final Advice to COM” (EIOPA
2014b). The Commission has been clearly
underwhelmed by this attitude, as became
apparent from its renewed call for advice
in July 2014 (European Commission
2014) that explicitly includes specific
tax-related questions (and has remained
unanswered at the time of writing). The
Commission’s stated aim to “attain a level
of harmonization where legislation does
not need additional requirements at the
national level” (European Commission
2014, introduction, Paragraph 12) ties
in neatly with EIOPA’s strategy to use
consumer protection as a keyhole. We
will return to the evolving sensitive
relationship between EIOPA and the
Commission in Section 4.2—and to the
question whether it is ingenuous or insane
to default on taxation whilst developing
2nd tier regulation.

The pattern of answers to
Questions 10 (about four specific tax
obstacles identified by EIOPA18 and the
feasibility of overcoming them) and 11

(about further obstacles identified by
stakeholders themselves19 and the same
feasibility) is remarkable in the sense
that a large majority of responding
stakeholders give evasive or outright
confrontational statements, while only
a small majority believe in the success
of either a passporting or a 2nd tier
regulation for PPPs. Among the latter, two
qualified proposals stand out: EFAMA, the
European Fund and Asset Management
Association, does not see 28 member
states agreeing on tax harmonization, but
thinks that “it is possible that a core group
of member states would agree to adjust
their domestic tax rules and existing tax
treaties to facilitate the emergence of a
single market for PPPs” (EIOPA 2014a,
com. 272), thus creating yet another
flavor of two-speed Europe. The German
Insurance Association (GDV) holds
that the “best way to develop a secure,
workable,
targeted,
proportionate,
effective, efficient, and standardized
process might be to leverage existing tax
information reporting that is currently
in place in most jurisdictions” (EIOPA
2014a, com. 274)—irrespective of its
worth a statement also not entirely free
of subtle criticisms of EIOPA and the
Commission.20

18

These obstacles are the taxation of contributions or investment income paid to or benefits received
from foreign PPPs, the transfer of accumulated capital (encore unefois!) and specific technical principles of taxation (EIOPA 2013).
19
Three additional aspects came up in the stakeholder comments: deductibility of employers’ and/
or employees’ contributions (EIOPA 2014a, com. 265 by ANASF, the Italian association of financial
advisers) and the treatment of lump-sum payments and accruals (EIOPA 2014a, com. 275 by Groupe
Consultatif, the European federation of actuaries’ associations).
20
Questions 12 and 13 refer to the discrimination of foreign providers and its treatment by the European Court of Justice. The picture emerging from the answers is that the CJEU is appropriately dealing
with discrimination, but that nondiscrimination is not enough to remove tax barriers between the
national PPP markets. Questions 14 and 15 are paraphrases of Questions 9 through 13, thus mainly
leading to repetitious answers or back references.
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