Luxembourg Leaks

One of the leaked tax rulings signed by Marius Kohl

Luxembourg Leaks (sometimes shortened to Lux Leaks or LuxLeaks) is the name of a financial scandal revealed in November 2014 by a journalistic investigation conducted by the International Consortium of Investigative Journalists. It is based on confidential information about Luxembourg’s tax rulings set up by PricewaterhouseCoopers from 2002 to 2010 to the benefits of its clients. This investigation resulted in making available to the public tax rulings for over three hundred multinational companies based in Luxembourg.

The LuxLeaks' disclosures attracted international attention and comment about tax avoidance schemes in Luxembourg and elsewhere. This scandal contributed to the implementation of measures aiming at reducing tax dumping and regulating tax avoidance schemes beneficial to multinational companies.

The judicial aspects of this case concerns the persons charged by Luxembourg justice for participating in the revelations.

Revelations

Two waves of ICIJ revelations

On November 5, 2014, the Washington D.C. based International Consortium of Investigative Journalists (ICIJ) releases LuxLeaks investigation. Eighty journalists from media organizations around the globe had been involved in collaboratively reviewing 28,000 pages of documents. All documents are available online in a searchable database categorized by industry and corporation published by the ICIJ and by other websites. The documents disclose tax rulings between Luxembourg and more than 340 companies worldwide aiming at reducing their tax payments. The Luxembourg Leaks provide insight into 548 tax rulings, dating from 2002 to 2010.

On December 9, 2014, ICIJ reveals new names of about 30 large companies benefiting from tax rulings and tax avoidance schemes in Luxembourg. This second wave is labeled “LuxLeaks 2” in complement to the first revelation wave in November labeled “LuxLeaks 1”.

The LuxLeaks revelations have had a worldwide impact, as ICIJ partnered its investigations with many media around the world: CNBC (USA), CBC (Canada), The Irish Times (Ireland), Le Monde (France), Tagesanzeiger (Switzerland), Süddeutsche Zeitung (Germany), Asahi Shimbun (Japan) and many others.

After publishing LuxLeaks investigation, ICIJ was awarded one of the United States’ top journalism awards, the George Polk Awards in the Business Reporting category (ICIJ is jointly awarded for 2 other investigations) in February 2015. ICIJ was also awarded ‘Investigation of the Year’ for the Luxleaks and SwissLeaks investigations at the Data Journalism Awards in June 2015.

Although the "ICIJ LuxLeaks" and "WikiLeaks" show similarity in names and operating mode (as international, online, non-profit, journalistic organisations publishing confidential or secret information), this does not imply any known connection between them.

Luxembourgish tax regime illuminated

KPMG builds a new office building for 1.600 staff in Luxembourg

LuxLeaks revelations shed light on the Luxembourgish tax regime, highly beneficial to multinational companies. Foreign corporations started settling in Luxembourg in large numbers in the early 1990s, when Luxembourg transposed in its national law a EU directive that allowed companies to pay taxes in a European headquarters country other than where their subsidiaries operated.

Tax rulings are set up by large accounting firms (the “Big Four”) for the benefits of their clients, multinational companies, and then approved by the Luxembourgish tax administration. Tax rulings include schemes to transfer revenues to Luxembourg. Transfer pricing is one of the mechanisms used by multinational corporations to reallocate profits. Intra-group loans are another possible mechanism: a company based in a high-tax country gives a loan at a low interest rate to a subsidiary in Luxembourg. The interest rate reflects the credit rating of the company group, for example 1%. The subsidiary in Luxembourg is typically set up with the purpose of loaning money at high interest rates, for example 9%, back to another subsidiary outside Luxembourg. Since the tax regime in Luxembourg is tailored to be advantageous for financial arm of multinational companies, the profits generated there are taxed at very low rates. Such mechanisms are effective means to erode tax bases in countries with high tax rates and to shift profits to countries where they are less taxed (see also Base Erosion and Profit Shifting (BEPS)).

In many cases the companies’ presence in Luxembourg is only symbolic. For instance, 1,600 companies are registered at the same address – 5, rue Guillaume Kroll – in Luxembourg.

Tax rulings legality under question

The legality of tax rulings is under question. Even if they exist in many European countries, tax rulings tend to become considered as state aids able to distort competition. The European Commission Directorate-General for Competition launched several investigations in the last years. In a press release dated 7 October 2014 the European Commission stated: "Tax rulings are the comfort letters a tax authority may issue to give a specific company clarity on how its corporate tax will be calculated. They are used to confirm transfer pricing arrangements, affecting the prices for goods sold or services provided by one subsidiary of a corporate group to another subsidiary of the same group. This influences the allocation of the group's taxable profit between its subsidiaries located in different countries. As such, tax rulings are not problematic." However, the EU Competition Commissioner Margrethe Vestager said her team will investigate the leaked tax rulings. In another press release dated 17 December 2014, the European Commission declared: "The European Commission has enlarged the enquiry into the tax ruling practice under EU state aid rules to cover all Member States. The Commission will ask Member States to provide information about their tax ruling practice, in particular to confirm whether they provide tax rulings, and (...)".

After more than one year investigations, the European Commission concluded that the tax deals in favour of Fiat Finance and Trade in Luxembourg and Starbucks in the Netherlands are illegal state aid. During her press conference, the European Commission Competition Commissioner Margrethe Vestager confirmed: “We used the information coming from the Luxleaks as market information [...] Whistleblower also plays an important role here."

Since December 2015, the McDonald's company is subject to an investigation launched by the European Commission Directorate-General for Competition. The investigation looks into a system of licenses paid by the European subsidiaries of McDonald's to its Luxembourg branch. More than one billion Euros of tax loss for the European states between 2009 and 2013 would be at stake.

On 11 January 2016, the European Commission concluded that the preferential tax system established since 2005 in Belgium was illegal. Consequently, thirty-five large multinational companies which benefited from this illegal tax system will have to reimburse a tax shortfall estimated to at least 700 million Euros. Referring to the change of momentum about corporate taxation in Europe, EU Competition Commissioner Margrethe Vestager said: “I think everyone should thank both the whistleblower and the investigative journalists who put a lot of work into this”.

LuxLeaks impacts

When revealed, LuxLeaks impact on the public opinion was particularly high, as it put in front line the controversial role of Jean-Claude Juncker, president of the European Commission newly appointed a few days before LuxLeaks revelations. Juncker was Luxembourg's prime minister at the time when many of his country's tax-avoidance rules were enacted. The LuxLeaks raised discussion on tax avoidance in Luxembourg and other countries.

Follow up in the European Parliament

Following the LuxLeaks scandal, anti-EU groups at the European Parliament, including the UK Independence Party and France's National Front, proposed a motion of censure against European Commission’s team with J.C. Juncker as its president. On November 27, 2014, the vote led to the European Parliament rejecting the motion of censure, as mainstream political groups supported Jean-Claude Juncker.

On February 12th 2015, the European Parliament set up a special committee on tax rulings in the European Union Member States. The committee is composed of 45 members and initially had six months to report its findings. This special committee was preferred to a committee of inquiry which would have implied a higher power of inquiry. This choice is considered by some parliamentarians as a political willingness not to embarrass Jean-Claude Juncker. In the context of its investigations, the special committee requested information to the Commission and Member States, it commissioned research briefings, held public hearings and Committee’s delegations visited several countries in Europe. The Committee faced multinational corporations’ unwillingness to testimony. On October 26, 2015, the committee published at the end of its mandate a report with several recommendations: country-by-country reporting of multinationals' activities; introducing Common Corporate Tax Base (CCTB) in Europe; including the European Commission into the tax rulings automatic information sharing; better protection for whistle-blowers. At the end of November 2015, the report was approved by the European Parliament in a plenary session vote.

The special committee of the European Parliament has been reactivated until June 2016. Reactivation of the committee follows press’ disclosure of documents, which demonstrates how some countries within the European Commission have been obstructive for more than ten years regarding any reform of the systems allowing aggressive tax avoidance. The new special committee includes the same members as the initial committee. It aims at following and deepening previous investigations on tax rulings and tax policies in European Union states.

Follow up in the European Commission

The first action at the European Commission level is a Tax Transparency Package that commissioner Pierre Moscovici presented on 18 March 2015. It mainly consists in setting up a system of automatic exchange of information on advance tax ruling between Member States’ tax administrations. Non-governmental organizations (NGO) and Members of European Parliament (MEP) consider these measures insufficient as no public release of the rulings is expected. The technical document accompanying the Tax Transparency Package considers LuxLeaks as a major factor in the Commission’s decision to act on corporate tax avoidance. That’s why some anti federalist politicians fear that the European Commission will use LuxLeaks to push for tax harmonisation. In October 2015, European finance ministers validated the system of automatic exchange of information on tax rulings between Member States administrations, leaving however the European Commission and the public in general outside this information exchange.

The European Commission made a second move on 17 June 2015 by presenting an “Action Plan for Fair and Efficient Corporate Taxation in the EU”. In introducing the action plan, Commissioner Pierre Moscovici said “Corporate taxation in the EU needs radical reform [and] everyone must pay their fair share”. The action plan on fairer taxation proposes to re-launch the Common Consolidated Corporate Tax Base, four years after its previous attempt met Member States' opposition. It also proposes several measures in order to reach effective taxation of companies in the countries where the profits are made. The Commission also published a list of Top 30 tax havens among non-EU Member States. NGOs expressed doubts that this action plan would successfully eradicate multinational companies’ profit shifting and underlined the lack of willingness in acting quickly on the subject.

The European Commission released on 27 January 2016 a new Action plan, including anti-tax avoidance measures such as automatic exchange of key information related to multinationals’ activities. However, in order for this plan to be enacted, it will have to be unanimously approved by the member states of the European Union. It has been assessed as too weak by tax justice NGOs.

Follow up in G-20

Measures to combat tax minimisation were discussed by leaders attending the 2014 G-20 Brisbane summit and included in the G-20 Leaders’ Final Communiqué: "We are taking actions to ensure the fairness of the international tax system and to secure countries’ revenue bases. Profits should be taxed where economic activities deriving the profits are performed and where value is created."

In November 2015, the 2015 G-20 Antalya summit adopted the action plan released by the OECD in early October. The Base Erosion and Profit Shifting (BEPS) plan includes a list of 15 measures. NGOs fear that this plan will not be sufficient to end multinationals tax avoidance.

Follow up in Luxembourg

LuxLeaks revelations stress the fact that tax rulings are legal but secret under the law of Luxembourg, like in many other European Member States (22 out of 28 States). After Luxleaks revelations, tax rulings kept on being agreed in Luxembourg. The Luxembourgish tax administration indicated that 715 new tax rulings were signed in 2014. The content of these rulings remains secret: neither the name of benefiting companies nor the tax rates obtained are known.

European statistics show that in 2014, Luxembourg was the European country having the highest number of ongoing Advance Pricing Agreements that is ‘sweetheart tax deals’.

Follow up in the United Kingdom

In December 2014, the British parliamentary Public Accounts Committee interviewed Kevin Nicholson (head of tax division in PwC UK) for the second time in two years. Margaret Hodge, the chairwoman of the committee, accused Nicholson of having lied in the first hearing before LuxLeaks. She said: "It's very hard for me to understand that this is anything other than a mass-marketed tax avoidance scheme," and "I think there are three ways in which you lied and I think what you are doing is selling tax avoidance on an industrial scale." Nicholson denied that PwC mass-marketed tax avoidance schemes.

On 6 February 2015, the Public Accounts Committee published the report "Tax avoidance: the role of large accountancy firms". Commenting on the report, Margaret Hodge, chairwoman of the committee, says PwC's activities represent “nothing short of the promotion of tax avoidance on an industrial scale”. During its investigation, the committee heard the British subsidiary of PwC and large companies that benefited from tax rulings.

In March 2015, the government of the United Kingdom announced the introduction of a diverted profits tax to deter firms setting up tax avoidance schemes.

Leak sources

According to the International Consortium of Investigative Journalists (ICIJ), files used for the LuxLeaks revelations come from employees or former employees of Luxembourgish subsidiaries of the international accounting firms: PwC, EY, Deloitte and KPMG (the “Big Four”).

Between December 2014 and April 2015, three people were indicted in Luxembourg in connection with LuxLeaks revelations. No multinational corporation faces charges in any country or at the international level, due to the so far legality of tax rulings.

Antoine Deltour, main leak source

On 12 December 2014, the Luxembourg prosecutor's office announced that an investigating judge had charged someone with theft, disclosing of confidential information and trade secrets, money laundering and fraud, following the complaint filed by PwC in 2012 against a former employee. On 14 December 2014, Antoine Deltour - a 28-year-old Frenchman - identified himself and said that his motivation was public good and not financial motivation. He stated that the files he copied were not protected, he did not hack any system. He said he had no contact with ICIJ which had disclosed the LuxLeaks documents and he did not attempt to hide what he was doing. He copied the files because he thought "this type of data could document the tax ruling practice, which was widely unknown, especially in terms of scale."

Support to the young French whistleblower progressively grew. On 23 December 2014, more than 70 politicians, academics, union heads and charity leaders around the world signed in The Guardian an open letter in opposition to the decision by Luxembourg to prosecute Antoine Deltour. On March 10, 2015, the French newspaper Libération released an Op-Ed article signed by multiple French and International signatories including Edward Snowden, Thomas Piketty and Eva Joly. A support committee to Antoine Deltour set up a public petition that got more than 115,000 signatures in April 2016.

On June 3, 2015, Antoine Deltour was awarded the European Citizens' Prize by the European Parliament, a prize annually awarding Europeans contributing to the promotion of European citizenship and mutual cultural understanding. On September 10, 2015, Antoine Deltour was jointly nominated, together with two other whistleblowers – Stéphanie Gibaud and Edward Snowden - for the 2015 Sakharov Prize for Freedom of Thought. In December 2015, Antoine Deltour was recognized as the “Person of the Year 2015” by Tax Notes International professional magazine, for the influential role he played in shaping new international tax law.

Other leak sources

New names of companies which benefited from tax rulings were revealed in December 2014 (“LuxLeaks 2”). These names show that other leaks originated from PwC but also from other accountancy firms based in Luxembourg.

On the 23rd January 2015, another former PricewaterhouseCoopers employee was charged for similar accusations as was Antoine Deltour. This employee was fired due to the leak. His/her identity is kept secret following his/her own wish.

On the 23rd April 2015, the journalist Edouard Perrin was indicted in Luxembourg for being the co-author or accomplice of the offences committed by the former PwC employee charged on 23 January. Journalist organizations consider this judicial decision as an attempt against press freedom.

The Luxleaks trial

The persons who will face the court of Luxembourg are those involved in the disclosure of secret tax agreements set up by PricewaterhouseCoopers in Luxembourg. The three accused people are: Antoine Deltour, another PwC employee who has remained anonymous until now, as well as the French journalist Edouard Perrin who has been accused of complicity. The trial is to begin on 26 April 2016 at the criminal court of Luxembourg. Five days of hearings are planned.

See also

• Global Integrity
• Offshore financial center
• Offshore leaks
• Panama Papers
• SwissLeaks
• Tax haven
• Whistleblower

External links

• International Consortium of Investigative Journalists Luxembourg Leaks: Global Companies' Secrets Exposed
• The Guardian Luxembourg tax files: how tiny state rubber-stamped tax avoidance on an industrial scale. (Including videos of visits in Luxembourg.)
• EurActiv, Luxleaks file: http://www.euractiv.com/topics/luxleaks/
• The Irish Times, Luxleaks file: http://www.irishtimes.com/business/lux-leaks
• Support Antoine Deltour the LuxLeaks1 whistleblower support web site (including petition)