This amends and strengthens the previous posting on this issue as at 19th June, 2015.

Polite political veneer aside, it will come as no surprise to the UK Crown Dependencies and the UK OCTs that the ascension of Pierre Moscovici to a seat on the EU Commission at Brussels was likely to be an extension of French prejudice and misinformation into that area.

Pierre Moscovici announced on 17th June, 2015, on a legal basis which remains to be clarified, that the EU had issued a blacklist of non-cooperative jurisdictions. It seems that the list was based, not on any Commission analysis, but rather on the existing lists of Member States internal blacklists to attempt to hide the fact that he EU Commission itself has no express Treaty power to officialise any list of this type, and prejudicial effect as "European".

The states blacklisted by Moscovici are the following:

Andorra, Liechtenstein, Guernsey, Monaco, Mauritius, Liberia, Seychelles, Brunei, Hong Kong, Maldives, Cook Islands, Nauru, Niue, Marshall Islands, Vanuatu, Anguilla, Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda, British Virgin Islands, Cayman Islands, Grenada, Montserrat, Panama, St Vincent and the Grenadines, St Kitts and Nevis, Turks and Caicos, US Virgin Islands.

There is no independent assessment of these by the Commission.  If you take policy decisions without having the means to research these independently, might that not be a sign that you might be extra vires, and out of order?

Of the above the only European non EU states left unscathed are Switzerland and San Marin

Guernsey will be surprised at this, as it appears that with typical French hypocrisy, Pierre Moscovici had indicated to the Island that Guernsey was in order.

What appears to have happened is that Moscovici, as usual, has no grasp of political and constitutional geography, and assumed, in typical ENArquista form that Guernsey was responsible for Sark's fiscal affairs, which it is not,  and could be tarred and feathered with the same impressionistic flourish. Sark is part of the EU as it is part of the Bailiwick of  Guernsey, but is not subject to Guernsey's fiscal jurisdiction.  Moscovici is typically unconscious of such pre-revolutionary niceties, despite the Island having given safe harbour to Victor Hugo in his republican exile in the building now housing the Honorary French Consulate, incidentally with a view over Sark.  The fact that the Crown Dependencies constitutional position, and the internal relations between the Islands  predates even the glimmer of a spark in a revolutionary eye, is of no relevance to him, nor apparently to his politicised staff.

However it gets better.

The mediatic, as distinct from the "outlaw" basis of the Blacklist is but a compilation of Member States prior administrative positions on information exchange and cooperation. of any given State or Territory, outside the Union. If any territory or state scores 10 or more on the blacklist beauty contest, a bit like Eurovision, it gets put on the black catwalk, see the attempt at a globally accessible list, involving the miniscule islands and islets that are the objects of the Commission's august attention.

It seems that the Commission has had to send in the troops, under the generalship of a Dane, the EU Ambassador to Barbados and the Eastern Caribbean, Mikael Barfod, into Barbados to attempt to justify its diplomatic faux pas. The Ambassador had no other choice but to waffle some Europeak about attempting to get the blacklisting policies of Member States aligned in order to consolidate the concept of a Common corporation tax basis. I cite "This list is nothing new. It is only a compilation of the lists of our member states. It is part of the Commission's attempt to develop a common EU wide approach to corporate taxation to ensure its transparency and fairness, when currently Member States have very different definitions even of what constitutes a tax haven". It is nothing new, that is the problem it is as out of date as the mentalities of the ex-Soviet bloc Member States who are refusing to negotiate TIEAs.  In that I include Portugal and Spain, who still evidently have difficulty in emerging from the knee jerk reactions of a fascist administration. Apparently we are still - to cite a statement by a Portuguese Advocate General in a CJEU tax case - "the Wild West?". It is only recently that  Portugal and Spain have set up the equivalent of non-dom tax status for wealthy immigrants in an attempt to bolster their economies outside their regional centres. The weather in that "West" may be better than London. That Portuguese Caravel did not and still does not quite hold water or sail straight into the wind of reality. The Commission's attempt at exploiting these prejudices is a Feydeau farce without the elegance.

The offshore  financial centres which are being Kalachnikofed by the Commission, and it knows this are part of an international monetary system that is outside their control and supervision. It is and always has been a liquidity creation mechanism for multinationals now SMEs needed to self finance their working capital out of legal paper defined and centralised under a neutral law.  Is that what they are worried about?

If that "attempt" was the intention, then should that not have been part of a process, not an immediate soviet declaration of hostilities. The stance taken by Donville Inniss, The Barbadian Minister is certainly more mature and statesmanlike  than that of the EUs apparatchiks.

The error lies there. Back to Europe.

Italy's blacklisting of Guernsey is cited as being "in force". Italy had indeed blacklisted Guernsey, but had removed Guernsey from its Italian list, as Guernsey had demonstrated to the Italians, that it was cooperative. This was in April, 2015 therefore with sufficient notice for even Brussels to wake up to it outside the school holidays.

In other words, Guernsey only scored 8, or if you feel like including Sark as a matter of principle 8 1/5, as the islets of Herm, Sark, Jethou and Brecqou and the slightly larger Alderney make up the set of Islands under the Bailiwick of Guernsey under stable constitutional arrangements which predate Napoleon, and which were recognised, therefore validated, by Europe in the UK Treaty of Accession in 1974. No excuse, even for the French who have treated this as a thorn in their side since unsuccessful invasion in the 18th Century. Sark was blacklisted by Poland not for any corporation tax avoidance or evasion, but simply because certain of its residents were directors of Companies incorporated outside Guernsey with which its administration had been having issues. That was known as the "Sark Lark". There is no company register in Sark, and no such thing as a Sark Company. It has nothing to do with the Common Corporate Tax Basis which the Commission is "attempting" to use as an excuse.  Is France or anyone else blacklisting territories whose Directors sit on boards of companies under the Beneficial ownership of Russian Oligarchs?  If the object was the attempted resurrection of the Common Corporation Tax Basis, then what is the relevance of Poland's blacklist as to the influence of directors to this?

A point of principle, if Moscovici had thought this through, then why has he not included the United States of America, whose federal jurisdictions extend to Delaware, and other less obvious States, as Obama has technically more jurisdiction over it than the Bailliff or the Lieutenant Governor can have over Sark? The answer is that the fiscal federation known as the United States has not been blacklisted by any Member State. Perhaps the Polish example might be used as a precedent?

Put bluntly, If you can't take on the big bully on in the UN or OECD playground, mark out your own, turn on the small one in the corner, and cry foul as you are beating him up. Moskovici had two psychoanalysts as parents, which appear to have given him a less than coherent set of ethical moral principles, barring any Lacanian influence, of course. But then he did not have an English education in this dark art. Unfortunately for him, Barbadians are not his "victims" and are quie used to defending themselves.

Perhaps we can find someone at Tax_UD who can count as opposed to engaging  in mediatic pseudo-philosophical abstractions on a historical basis unconnected with the present?

Jersey's neighbours could however have been pardoned for believing that, as under the International, not fiscal, responsibility of the United Kingdom, the Commission, as Guardian of the Treaties would remain within its Treaty powers and jurisdiction in dealing with them, in their respective position as subject to the Treaties and their protection.

Firstly it is a clear position of the Council and the other institutions that the only European States and Territories outside the EU are those identified in the Council's Conclusions of 20-21 March 2014 ; "European third countries (Switzerland, Liechtenstein, Monaco, Andorra and San Marino)". In other words to the notable exclusion of the British Crown Dependencies that is the Isle of Man, Guernsey and Jersey.

That has been clearly indicated in the extension of the Savings Directive, which had to be negotiated with those European but non EU states and territories.

I leave the defence of the non European OTCs for which the United Kingdom is responsible in the Associated Territories section of the EU Treaty to their lawyers

As to the EU blacklisting of Guernsey, it is worth noting that Commissioner Prodi in a written response to a Parliamentary Question:  (2003/C 242 E/070) WRITTEN QUESTION P-3620/02 by Wolfgang Ilgenfritz (NI) to the Commission stated as follows on behalf of the Commission (14 January 2003) in a question relating to VAT :

"Jersey [therefore Guernsey], a British Crown dependency, is part of the Union in so far as the United Kingdom is responsible for its external relations. It does, however, have a special status. Pursuant to Article 26(3) and Article 27(d) of the Act concerning the conditions of accession to the Communities of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, a new paragraph was added to Article 299 of the EC Treaty and Article 198 of the Treaty establishing the European Atomic Energy Community. The paragraph reads as follows:

"This Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to European Atomic Energy Community signed on 22 January 1972."

The special arrangements laid down for the Channel Islands and the Isle of Man are set out in Protocol No 3 attached to the Act of Accession, of which, under Article 158 of the Act, they form an integral part."

In other words the Treaty applies, not it only applies when a Commissioner feels it appropriate.

There is therefore no logical basis, let alone any legal basis for this Feydeau farce of which the script and unusable map can be found at :

http://ec.europa.eu/taxation_customs/taxation/gen_info/good_governance_matters/lists_of_countries/index_en.htm

Strictly speaking in theatrical parlance it is "ob scena".

Moscovici has past form for deliberately ignoring legal prohibitions or limitations on statutory powers entrusted to him. Despite being the fruit of the union of two eminent French psychologists, he apparently appears to be under the narcissistic delusion that laws are not applicable to him, except insofar as they can be used as an institutional prop whose content and scope can be ignored. In relation to Jersey, he used the typical ENArque trick of using an advice, never published, from the French Ministère des affaires étrangères to describe, wrongly, what the Island's constitutional relationship with the EU and the EC was, from the French perspective. It is interesting that all of the French parliamentary discussions on the TIEAs were formulated on incorrect analyses by the Minstère des affaires étrangères who have not yet been kicked into shape by the British Ambassador in Paris.   An Enarque does no more than sign off on a dossier, prepared by others under their direction as to content, whether the contents upon which it is based are included and whether the contents are correct or not. My scepticism, not cynicism is the result of experience.

Whilst French Finance Minister, Moscovici managed to blacklist Jersey in absolute illegality as article 231 CGI limited his powers to blacklist States and Territories outside the EC, which, by virtue of the Council's statement, Jersey self-evidently was not. EC treaty literacy was not his strong point, and he appears to have overridden any form of institutional resistance to this abuse of procedure or ultra vires in Brussels being that of the co-dependent prop, as opposed to a responsible Guardian of the Treaties with whose respect it is entrusted.  The Commission is now no more than a political animal, and is no longer the objective guardian of the Treaties.

It will be interesting to see what specious attempt at invention of a Treaty power will be evoked to provide the legal basis for this blacklist in Brussels, and why the United Kingdom has not protected its dependencies by stating that any fiscal move even relating to the market requires unanimity, as opposed to one Commissioner attempting to resurrect past misdeeds by cloaking them in borrowed robes. If these were corporate tax havens, then why has the UK no blacklist, a point which the Commission points out in its Press release. We may be a few things, but fiscal "bullies" to obtain economic advantage and capital deviation, we are not.

Unlike the E non-EU states  Guernsey is definitely U, not non-U  therefore within the Union, and should not be subjected to this form of Treaty abuse by a rogue Commissioner on  a bucolic frolic in a new institutional pasture.

The remainder of the list is heavily biased against United Kingdom OCTs whose relationship with the EU is defined in the associated territories section of  of the Treaty and who are in a protected environment under the OCT Decision of 19 December 2013: Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territories with the European Union ('Overseas Association Decision').

The Treaty on the Functioning of the European Union (TFEU) and its secondary legislation do not automatically apply to the Overseas Countries and Territories (OCTs), with the exception of a number of provisions which explicitly provide for the contrary. Although not third countries, the OCTs do not form part of the single market and must comply with the obligations imposed on third countries in respect of trade, particularly rules of origin, health and plant health standards and safeguard measures. The Treaties attempt to label this as a partnership, in English but apparently not in French!

The Overseas Association decision moves the special relationship between the Union and the OCTs away from a classic development cooperation approach to a reciprocal partnership to support the OCTs' sustainable development, based on their unique relationship and their belonging to the same 'European family'. The Decision establishes an association of the OCTs with the Union (the 'association'), which constitutes a partnership, based on Article 198 TFEU, to support the OCTs' sustainable development as well as to promote the values and standards of the Union in the wider world. It applies to OCTs listed in Annex II to the TFEU.

The Decision covers cooperation between the EU and OCTs in many areas such as, climate change and energy, sustainable trade, sanitary and phytosanitary measures, IPR, competition, technical trade barriers, consumer policy and health protection, monetary matters, Customs, rules of origin, etc. Annex VI to the Decision contains provisions relating to the definition of 'originating products' and territorial requirements as well as cumulation, registration of exporters and other rules of origin requirements.

Note however the following articles  in the OCT Decision of 19 December 2013.:

Article 46

Non-discrimination

1. The Union shall not discriminate between OCTs and the OCTs shall not discriminate between Member States.

and

Article 59

Current payments and capital movements

1. No restrictions shall be imposed on any payments in freely convertible currency on the current account of balance of payments between residents of the Union and of the OCTs.

2. With regard to transactions on the capital account of balance of payments, the Member States and the OCTs authorities shall impose no restrictions on the free movement of capital for direct investments in companies formed in accordance with the laws of the host Member State, country or territory and shall ensure that the assets formed by such investment and any profit stemming therefrom can be realised and repatriated.

3. The Union and the OCTs shall be entitled to take the measures referred to in Articles 64, 65, 66, 75 and 215 TFEU in accordance with the conditions laid down therein mutatis mutandis

An EU blacklisting is foul of article 46 and of Article 59 paragraph 2.

The Dane in charge of the EU Embassy to the Eastern Caribbean appears to have forgotten the aims and intendment of this Decision.  The Tax_UD has acted in breach of it in creating a barrier or deviation of capital movement contrary to CJEU jurisprudence as the Press "relapse" is capable of deterring investment into and out of the European Union, and what is more with a partner area of that extended capital market.

Is it not time that the BVI and the other Caribbean OCTs reacted, for example, in that Saint Martin, a joint French/Dutch protectorate has not been blacklisted, despite the inherent fiscal advantages upon which its French side depends for investment?

In order to get to the root of the problem, which is no more and no less than Moscovici's deliberate misunderstanding,  perhaps the Caribbean jurisdictions should refer to the TIEA report put before the French Parliament before their TIEAs were ratified to see if these contain the same fundamental misrepresentation of their constitutional position as the Cousin Report on Gibraltar and the Crown Dependencies.