Overseas Chambers of Peter Harris

Overseas Chambers
c/o Addington Chambers
160, Fleet Street,
London EC4A 2DQ,
United Kingdom
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Correlation between EU capital market access and Freedom of movement of information?

June 1st 2015

The European Court of Justice has been labouring the point that once there is "liberalised" information flow between both EEA and third countries, i.e. Switzerland, that for the tax viewpoint, there should be no adverse fiscal discrimination.

A Swiss lawyer has also pointed out, inconveniently for Brussels and Paris, that once there is freedom of movement of fiscal information there should also be a correspondingly unrestricted access to EU capital markets, and therefore to market into the markets in which those responsible in the place of establishment of the capital structures are required to give foreign information:

"À quoi bon donner des informations sur des clients

si on n'a pas d'accès au marché du pays d'où ils viennent?»

The trite and slightly witless counter proposition aside that, if you have their investment, you already have "access", the French will now have to revisit the inevitable debate which they had with the Danes upon whether pension capital constitiued under an EU Member State's law by a national of a Member State in their prior state of residence will retain the legal structure and principles upon which it was constituted.  In other words for example, Trusts, which they attempt to requalify fiscally as contracts; or accept simply that a foreigner, from the EU or otherwise retiring to France has the right to the legal and fiscal respect of the form and substance of the arrangements instigated prior to their arrival in France and which should govern the foreign currency, whether anothee Central Bank's  Euro or a third currency,  issued against them by the central bank of constitution.  The host state will otherwise fiscally and monetarily "embezzle" the capital as opposed to merely arbitrating over the income. In other words the counter argument is deflected towards another issue, not the real one.

Put bluntly, are we still in the ridiculous position where the French can assert their belief that they can simply requalify perfectly legitimate structures established abroad prior to any French connection being made, in the way that they see fit, and then double up the effcetive currency exposures over the same capital?  In other terms, issuing their Euros against another state's currency "assets", in this case sterling.

They accept that they cannot charge recent immigrants to ISF or succession or gift duty on foreign assets until after a certain lapse of time, so they are aware of the movement issue.  But does that give any Member State the right to requaliify a legitimate capital ownership and property structure in another Member State or elsewhere? No it does not, that is one of the pillars of the Capital Moevement freedom.

The French administration's current position of giving an informal "let off" and in fact exempting UK self funded pension plans such as SIPPs of any shape or form from the Trusts deeming provisions, evidences that this is a point to push home.

Watch this space.