Following on from the singular  Recommendation published in December 2012, the Commission has published a further set of papers, extracts appearing below  but is not drawing attention to the complete mess that it is attempting to manage in relation to Member State "Black/white/otherlisting" policies.

According to one Commission official : "Recommendations are a "legal act through which the Union exercises its competences", Article 288(1) TFEU." and "Recommendations have no binding force (Article 288(5) TFEU)". "The legal basis is Article 292 TFEU: • Commission Recommendations (Article 292 4th sentence). These are self-standing legal acts once agreed by the College."

If you read article 292 carefully, this does not quite seem to fit in that the article refers to Treaty not to extra-Treaty competences.  There has therefore been a serruptitious shift in the proportionality and subsidiarity arrangements enshrined in the allocation of competences between Member States and the Institutions.  This has been justified by concerns as to trade and capital deflections within the Markets, but that begs the question, do not Blacklists themselves do just that, and is not Mr Moscovici's rôle also to reduce the barriers, not to increase them?

Only a French trained ENArque could have managed such a presentation of absolute anarchy and chaos as being order in a Press Conference! His pronouncement was based upon the Commission Communication of 17th June, 2015, which avoids any statement of objective assessment.

See the Platform on Good Tax Governance Secretariat's discussion paper of October for the Meeting of 9th December, 2014, and its recent attempts to secure backing for a pan European Blacklist notwithstanding.

It is clear that the EU Blacklist bubble will burst as no Member State is capable of resourcing the necessary administrative follow up to meet the obligations of review and updating to which Moscovici is committing them in addition to their OECD "obligations" within the Global Forum.  That is part of the plan. To establish a Commission Corporate and Business tax section which will take over from the Member States to coordinate the barriers to capital and payment movements that that presents. A bureaucratic utopia.

The lack of real progress can be measured from the previous meeting's discussion paper of 6 February 2014.

Perhaps useful to cite one paragraph which infers that there was some intitutional heistancy from thr Commision before drawing up a list:

"...The non-MS Platform members insisted on the need to have a single EU blacklist given the difficulty in their view to achieve coherence between 28 MS blacklists, and in order to have a level playing field for all companies in all MS." There is still no coherence depsite the list being published!

The Blacklist was already out of date three months after the list was fixed in December 2014, and it is impossible to work out on what legal basis the Commission extracted the 10 blacklists necessary for most of the British Caribbean to appear on the Catwalk of blame/shame/lackofvirtue.

It is totally out of synchronisation with the OECD Forum, which is working successfully to eliminate Tax Havens, in its real economic meaning, rather than the antique version proffered by the Commission. It is interesting to observe the tense exchanges between two French trained ENAques, Moscovici and Saint Amans  on the inherent contradictions.

The Platform Secretariat has manfully taken on the task of attempting to correlate the listing arrangements of the Member States, and it is nigh impossible to work out from their compilation which Member States have set up a list, whether" Black/white/or other"; then those which actually use a blacklist and those which do not.  There is absolutely nothing publicised upon which the Commission could have objectively based a list of the type which it published with anything resembling the accuracy required of it in the exercise of its functions.  Where is the transparency? The paper it produced "is intended to propose an overview of the current state of play of black/white listing processes inside the EU". I have corrected the spelling as the English translation was evidently prepared in haste from a changing draft: a little like the subject itself.

There is no "state of play" evoked by Mr Moscovici as there are no common rules.

All the Platform has done is to introduce another layer of unnecessary bureaucracy in a process outside the Commission's effective Treaty mandate, its Treaty resources, knowledge and effective capacity. The Discussion Paper of 9th December 2014 shows this :

" During the Platform['s] last meeting held on 10 June 2014, it was agreed that the Platform secretariat would prepare, on the basis of the questionnaire, a comparison across Member States (MS) on criteria applied and measures triggered.

1. SUMMARY OF REPLIES AND ANALYSIS

1.1. Criteria used

Member States have reported using various types of criteria, sometimes in combination, for assessing the tax systems of other countries. However these criteria may be used for other purposes than establishing lists.

1.1.1. Criteria provided for by the Recommendation

Compliance with transparency and exchange of information standards (1) : this criterion is used by 18 MS (BE, BG, CY, CZ, DE, EE, EL, ES, FR, HR, IE, IT, LT, LV, PL, PT, SE, UK),out of which 13 MS use it for blacklisting purposes (2) only one MS (DE) uses it as sole criterion for blacklisting purposes, and one MS (UK) uses it for a different listing system (see infra point 1.2.5) . Absence of harmful tax measures (3): this criterion is used by 12 MS (BE, BG, CY, EE, EL, HR, IT, LT, LV, PL, PT, SE), but not all for blacklisting purposes. All 12 MS use the "absence of harmful tax measures" criterion in combination with the "transparency and exchange of information" criterion."

....

[Footnotes are]

(1) Type of criterion recommended in Commission Recommendation C(2012) 8805 point 3a

(2) Out of these, 3 MS have no list system (CY, CZ, IE), one uses it for white list (SE) and one has another listing system (UK)

3 Type of criterion recommended in Commission Recommendation C(2012) 8805 point 3b

4 3 other MS (CY, HU, SE) refer to the level of taxation for other purposes than blacklisting

It then goes on to state at

"1.2. Lists

Out of 28 replies received, 18 MS have a (black/white/other) listing system, 10 MS having no list at all.

1.2.1. Blacklisted jurisdictions

The number of black listed jurisdictions ranges from 0 in DE to 85 in PT. ..."

Whilst 18 have a (black/white/other), only 12 have a blacklisting system, and are therefore in a minority as against the 28 Member States concerned.

However, it is later  admitted that the Black/White or other listing system, is costly, and is an administrative burden on the state using the list as a tax weapon. Both France and Hungary have evoked the resources problem and the fact that the use of "criteria" would in fact lead to the blacklisting of a far larger number of territories than at present.  It is admitted that there are no common criteria available. That begs the question, can you "standardise" a system of taxation as between Member States with widely differing fiscal policies, let alone with the remainder of the Planet, which taxes companies on entirely different methods and sometimes with perfectly valid economic and political reasons not at all. Is France's territorial tax system blacklistable because it exempts French companies on profits made outside France?

The List-updating process is identified by the Commission as being worthy of comment. It is effectively little more than a bad joke. Belgium hasn't bothered in two years, the majority of States review on an ad hoc basis, and therefore are under no obligation or duty to  progress towards removing these barriers.

"1.2.2. Public availability of lists

The 16 MS having lists have indicated they were publicly available and have provided links to the websites.

[if that is indeed the case, why were these Black/White/other lists and the countries concerned made available at the Press announcement?]

1.2.3. Updating the lists.

The process for updating the list requires legislative action for 1 MS (BG), and for the 15 others is made by regulation, ministerial or administrative decision.

Very few MS have a periodical review of the list, which takes place each year (EL, FR) or every 2 year[s] (BE). The other 15 MS review their lists on an ad hoc basis.

However, the Commission services have identified the following updating "issues":

- Very few MS have updated the designation of the former Netherlands Antilles (also named the Dutch Antilles). These are still blacklisted as such by 8 MS although they have been dissolved on 10 October 2010. The former constituents of the Dutch Antilles are still member of the Kingdom of the Netherlands as separate entities under the name of Curaçao, Sint Maarten and the Caribbean Netherlands (Bonaire, Sint Eustatius & Saba which have become direct parts of the Netherlands as special municipalities). Only the UK has updated its category list accordingly to reflect the change in status of these 3 former constituents. LV and PL blacklist both Curacao and Sint Maarten but not the Caribbean Netherlands;

- The periodic review of one MS (BE) on a 2-years basis has not taken place so far since the adoption of the list in 2010;

- 2 MS (FR, HU) have explicitly mentioned the resources issues implicated by a constant update of the lists. In particular, HU (which does not operate any blacklisting system in 2014) mentions the 'unreasonably high burden on the public administration' of keeping up-to-date the blacklist it had until 2013. In the same way, FR states that the 'harmful tax practices' test "requires a thorough knowledge of all harmful tax measures by countries (including the favourable features, including temporary) and thus could lead to enrol a large number of jurisdictions".

[France's OCTs and overseas Departments included?]

The Discusison Paper of December 2014 shows nothing else but a complete lack of background consistency and in fact no objective basis upon which to draw up the Blacklist, which it subsequently did.

The Commission fell into exactly the same type of trap as the OECD, which placed territories which were in fact already within another Countries tax treaty information sharing arrangements on a black list.

Both Spain and the Netherlands confirmed immediately that the EU Blacklist was "published" that neither had placed Panama on their Blacklists.

Given the equally incorrect misrepresentation of Guernsey's EU status, and the striking inclusion of Sark, the list itself is without legal foundation in fact or in law.

Is it therefore likely that the EU Blacklisting bubble will simply burst?  The OECD Forum is designed to become redundant by virtue of its success.  Partnership rather than despotism is one of its guiding principles.

Given the developing politicisation of the Platform, it is clear that there is to be no partnership at all with those on the lists. It will therefore draw on its own instituitional energy.

It is clear that the EU is far behind the OECD in this area, and is perhaps doubling up on the work and the Member States resources involved. What will happen when the United Nations decides that it wants to get involved? It will lead to an effective squaring off between international organisations, with inevitable inefficiencies, an increase in capital movement barriers rather than a decrease and a significant waste of scarce and valuable administrative resources.

The undemocratic confusion that will commence when the newly constituted Platform including for purely political reasons "Civil Society" -OXFAM and Christian Aid - commences "work" is likely to be immense.  It is unlikely that either OXFAM or Christian Aid have the technical abilities to contribute anything, except perhaps its oxn experience of filling out exempt returns as transnational charities.

The overriding concern is that until now the issues of tax transparency have been addressed, successfully, by tax administrations from the offshore and onshore within the Global Forum, and the move by Moscovici to introduce amateurs into a soviet style "debate" at an institutional level is a matter of concern.

The full documentation undergirding these initiatives, including the incorporation of NGOs into the platform can now be found at http://ec.europa.eu/taxation_customs/taxation/tax_fraud_evasion/further_reading/index_en.htmhttp://ec.europa.eu/taxation_customs/taxation/tax_fraud_evasion/further_reading/index_en.htm