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25.1.2013 Official
Journal
of
the
European
Union L
22/11
DECISIONS
COUNCIL DECISION
of 22 January 2013
authorising enhanced cooperation in the area of financial transaction tax
(2013/52/EU)
THE COUNCIL OF THE EUROPEAN UNION,
on a common system of financial transaction tax and
amending Directive 2008/7/EC ( 1 ). The main objective
of that proposal was to ensure the proper functioning
Having regard to the Treaty on the Functioning of the European
of the internal market and to avoid distortion of
Union, and in particular Article 329(1) thereof,
competition.
Having regard to the requests made by the Kingdom of
Belgium, the Federal Republic of Germany, the Republic of
(5) At
the
Council
meeting
of
22
June
2012,
it
was
ascer
Estonia, the Hellenic Republic, the Kingdom of Spain, the
tained that there was no unanimous support for a
French Republic, the Italian Republic, the Republic of Austria,
common system of financial transaction tax (FTT) as
the Portuguese Republic, the Republic of Slovenia and the
proposed by the Commission. The European Council
Slovak Republic,
concluded on 29 June 2012 that the proposed
Directive would not be adopted by the Council within
a reasonable period. At the Council meeting of 10 July
Having regard to the proposal from the European Commission,
2012, reference was made to persisting and essential
differences in opinion as regards the need to establish a
common system of FTT at the Union level and it was
Having regard to the consent of the European Parliament,
confirmed that the principle of harmonised taxation on
financial transactions will not receive unanimous support
within the Council in the foreseeable future.
Whereas:
(1) In
accordance
with
Article
3(3)
of
the
Treaty
on (6) In
these
circumstances,
11
Member
States,
namely
European Union (TEU), the Union shall establish an
Belgium, Germany, Estonia, Greece, Spain, France, Italy,
internal market.
Austria, Portugal, Slovenia and Slovakia, addressed
requests to the Commission by letters received between
28 September and 23 October 2012 indicating that they
(2)
Pursuant to Article 113 of the Treaty on the Functioning
wished to establish enhanced cooperation between them
of the European Union (TFEU) the Council shall adopt
selves in the area of FTT. These Member States requested
provisions for the harmonisation of legislation
that the scope and objectives of the enhanced
concerning turnover taxes, excise duties and other
cooperation be based on the Commission proposal for
forms of indirect taxation to the extent that such
a Directive of 28 September 2011. Reference was also
harmonisation is necessary to ensure the establishment
made in particular to the need to avoid evasive actions,
and the functioning of the internal market and to avoid
distortions and transfers to other jurisdictions.
distortion of competition.
(3) In
2011,
the
Commission
took
note
of
a
debate
which (7) The
enhanced
cooperation
should
provide
the
necessary
was ongoing at all levels on additional taxation of the
legal framework for the establishment of a common
financial sector. This debate originates from the desire to
system of FTT in the participating Member States and
ensure that the financial sector fairly and substantially
ensure that the basic features of the tax are harmonised.
contributes to the costs of the crisis and that it is
To the extent possible, incentives for tax arbitrage and
taxed in a fair way vis-à-vis other sectors for the
allocation distortions between financial markets, as well
future, to disincentivise excessively risky activities by
as possibilities for double or non-taxation, as well as
financial institutions, to complement regulatory
evasive actions, should thereby be avoided.
measures aimed at avoiding future crises and to
generate additional revenue for general budgets or
specific policy purposes.
(8) The
conditions
laid
down
in
Article
20
TEU
and
Articles
326 and 329 TFEU are fulfilled.
(4) Against
this
background,
on
28
September
2011,
the
Commission adopted a proposal for a Council Directive
( 1 ) COM(2011) 594 final of 28 September 2011.

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L 22/12
EN
Official Journal of the European Union
25.1.2013
(9) It
was
recorded
at
the
Council
meeting
on
29
June
2012
territorial cohesion, nor constitute a barrier to or
and confirmed on 10 July 2012 that the objective to
discrimination in trade between Member States or
adopt a common system of FTT cannot be attained
distort competition between them.
within a reasonable period by the Union as a whole.
Consequently, the requirement set out in Article 20(2)
TEU that enhanced cooperation may be adopted only as
(14) Enhanced
cooperation
in
the
area
concerned
respects
the
a last resort is fulfilled.
competences, rights and obligations of non-participating

Member States, in accordance with Article 327 TFEU.
Such system would not affect the possibility for non-
participating Member States to keep or introduce an
(10) The
substantive
area
within
which
enhanced
cooperation
FTT on the basis of non-harmonised national rules. The
would take place, namely, the establishment of a
common system of FTT would attribute taxing rights to
common system of FTT within the Union, is an area
the participating Member States only on the basis of
covered by Article 113 TFEU and therefore by the
appropriate connecting factors.
Treaties.
(15) Subject
to
compliance
with
any
conditions
of
partici
(11) Enhanced cooperation in the area of the establishment of
pation laid down in this Decision, enhanced cooperation
a common system of FTT aims at ensuring the proper
in the area referred to therein is open at any time to all
functioning of the internal market. At the scale of this
Member States willing to comply with the acts already
cooperation, it avoids the coexistence of differing
adopted within this framework in accordance with
national regimes and thus an undue fragmentation of
Article 328 TFEU,
the market, as well as ensuing problems in the form of
distortions of competition, deflections of trade between
HAS ADOPTED THIS DECISION:
products, actors and geographical areas, and incentives
for operators to avoid taxation through operations with
little economic value. Such issues are of particular
Article 1
relevance in the area concerned, which is marked by
The Kingdom of Belgium, the Federal Republic of Germany, the
highly mobile tax bases. Thus, it furthers the objectives
Republic of Estonia, the Hellenic Republic, the Kingdom of
of the Union, protects its interests and reinforces its inte
Spain, the French Republic, the Italian Republic, the Republic
gration process in accordance with Article 20(1) TEU.
of Austria, the Portuguese Republic, the Republic of Slovenia
and the Slovak Republic are hereby authorised to establish
enhanced cooperation between themselves in the area of the
(12) The
establishment
of
a
common
harmonised
system
of
establishment of a common system of financial transaction
FTT is not included in the list of areas of exclusive
tax, by applying the relevant provisions of the Treaties.
competence of the Union set out in Article 3(1) TFEU.
Since it serves the functioning of the internal market, in
accordance with Article 113 TFEU, it falls under the
Article 2
shared competences of the Union within the meaning
This Decision shall enter into force on the day of its adoption.
of Article 4 TFEU and is thus within the framework of
the Union’s non-exclusive competence.
Done at Brussels, 22 January 2013.
(13) Enhanced
cooperation
in
the
area
concerned
complies
with the Treaties and Union law, in accordance with
For the Council
the first paragraph of Article 326 TFEU. In line with
the second paragraph of Article 326 TFEU, it will not
The President
undermine the internal market or economic, social and
M. NOONAN

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