Harmful Tax Competition from the European Union towards Third Countries?

The European Union does not have a harmonized – let alone centralized – tax system that offers specific tax incentives. It also does not explicitly regulate tax competition of its constituent parts (the EU Member States) with third countries, but only regulates “internal tax competition” among them, through the mechanism of the Code of Conduct and, even more strongly, by prohibiting State aid from being granted through tax measures. The question asked by the title of this chapter thus seems to be easily answerable in the negative: since the European Union does not make external tax policies for its Member States and does not itself provide specific tax incentives, it is not an agent of tax competition. Consequently, it would be challenging to argue that the European Union engages in harmful tax competition towards third countries.
Taking a broader view, however, the notion that the European Union may engage in harmful tax competition may not be so easily dismissed, as it takes regulatory action that impacts Member States as primary agents of tax competition in a variety of ways, which can either improve or reduce the Member States’ and, by extension the European Union’s competitive position vis-à-vis third countries. Such impact takes three different routes: (i) primary EU law, affecting the design of domestic tax incentives; (ii) secondary EU law, determining certain kinds of tax incentives; and (iii) soft-law instruments, affecting domestic tax design.
This contribution aims at analysing these three routes of tax competition of the European Union in order to get a deeper understanding of the ways in which the European Union may be said to engage in harmful tax competition. Before the different models can be analysed in this light, however, it is first necessary to enquire into the nature of “harmful tax competition”, a term that is all too often used without a clear definition of its content.