Considerations on COM(2020)49 - Administrative cooperation in the field of taxation (codification) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)49 - Administrative cooperation in the field of taxation (codification). |
|---|---|
| document | COM(2020)49  |
| date | February 12, 2020 |
(1) Council Directive 2011/16/EU 6 has been substantially amended several times. In the interests of clarity and rationality, that Directive should be codified.
🡻 2011/16/EU recital 3 (adapted)
(2) ⌦ This Directive ⌫ should give Member States the power to efficiently cooperate at international level to overcome the negative effects of an ever-increasing globalisation on the internal market.
🡻 2011/16/EU recital 6 (adapted)
(3) ⌦ This Directive ⌫ should apply to direct taxes and indirect taxes that are not yet covered by other Union legislation. To this end, this Directive is considered to be the proper instrument in terms of effective administrative cooperation.
🡻 2011/16/EU recital 7 (adapted)
(4) This Directive provides for clear and precise rules governing administrative cooperation between Member States, in order to ⌦ ensure ⌫, especially as regards the exchange of information, a wide scope of administrative cooperation between Member States. Clear rules should also make it possible in particular to cover all legal and natural persons in the Union, taking into account the ever-increasing range of legal arrangements, including not only traditional arrangements such as trusts, foundations and investment funds, but any new instrument which may be set up by taxpayers in the Member States.
🡻 2011/16/EU recital 8 (adapted)
(5) There should be direct contact between Member States’ local or national offices in charge of administrative cooperation, with communication between central liaison offices being the rule. The lack of direct contacts leads to inefficiency, under-use of the arrangements for administrative cooperation and delays in communication. Direct contacts ⌦ should take place ⌫ between services with a view to making cooperation efficient and fast. The assignment of competences to the liaison departments should be deferred to the national provisions of each Member State.
🡻 2011/16/EU recital 9
(6) Member States should exchange information concerning particular cases where requested by another Member State and should make the necessary enquiries to obtain such information. The standard of ‘foreseeable relevance’ is intended to provide for exchange of information in tax matters to the widest possible extent and, at the same time, to clarify that Member States are not at liberty to engage in ‘fishing expeditions’ or to request information that is unlikely to be relevant to the tax affairs of a given taxpayer. While Article 24 of this Directive contains procedural requirements, those provisions need to be interpreted liberally in order not to frustrate the effective exchange of information.
🡻 2014/107/EU recital 1 (adapted)
(7) The challenge posed by cross-border tax fraud and tax evasion has increased considerably and has become a major focus of concern within the Union and at global level. Unreported and untaxed income is considerably reducing national tax revenues. Efficiency and effectiveness of tax collection ⌦ are ⌫ therefore needed. ⌦ Moreover, the challenge posed by cross-border tax avoidance, aggressive tax planning and harmful tax competition has also increased considerably. Overall, this hinders Member States in applying growth-friendly tax policies ⌫. The automatic exchange of information constitutes an important tool in this regard and ⌦ should be promoted ⌫ vigorously as the future European and international standard for transparency and exchange of information in tax matters.
🡻 2014/107/EU recital 2 (adapted)
(8) The importance of automatic exchange of information as a means to combat cross-border tax fraud and tax evasion has been recognised also at the international level (G20 and G8). Following the negotiations between the United States of America and several other countries, including all Member States, on bilateral automatic exchange agreements to implement the United States' Foreign Account Tax Compliance Act (commonly known as ‘FATCA’), the Organisation for Economic Cooperation and Development (OECD) was mandated by the G20 to build on these agreements to develop a single global standard for automatic exchange of tax information.
🡻 2014/107/EU recital 4 (adapted)
(9) In 2014, the OECD released the ⌦ various ⌫ elements of a global standard for automatic exchange of financial account information in tax matters, ⌦ which included ⌫ a Model Competent Authority Agreement, a Common Reporting Standard ⌦ (‘CRS’) ⌫, Commentaries on the Model Competent Authority Agreement and Common Reporting Standard, and Information Technology Modalities for implementing the global standard. The entire global standard package was endorsed by G20 Finance Ministers and Central Bank Governors in September 2014.
🡻 2014/107/EU recital 5 (adapted)
(10) ⌦ This ⌫ Directive ⌦ should also ⌫ provide for the mandatory automatic exchange of information between Member States on certain categories of income and capital that taxpayers hold in Member States other than their State of residence. It ⌦ should ⌫ establish a step-by-step approach to reinforcing automatic exchange of information by its progressive extension to new categories of income and capital.
🡻 2014/107/EU recital 9 (adapted)
(11) In order to minimise costs and administrative burdens both for tax administrations and for economic operators, it is also crucial to ensure that the scope of automatic exchange of ⌦ financial ⌫ information within the Union is in line with international developments. To achieve this objective, Member States should require their Financial Institutions to implement reporting and due diligence rules which are fully consistent with those set out in the ⌦ CRS ⌫ developed by the OECD. Moreover, the scope of ⌦ mandatory automatic exchange of information ⌫ should include the same information covered by the OECD Model Competent Authority Agreement and ⌦ CRS ⌫. Each Member State ⌦ should ⌫ have only one single list of domestically-defined Non-Reporting Financial Institutions and Excluded Accounts that it ⌦ should ⌫ use both when implementing this Directive and for the application of other agreements implementing the global standard.
🡻 2014/107/EU recital 10
(12) The categories of Reporting Financial Institutions and Reportable Accounts covered by this Directive are designed to limit the opportunities for taxpayers to avoid being reported by shifting assets to Financial Institutions or investing in financial products that are outside the scope of this Directive. However, certain Financial Institutions and accounts that present a low risk of being used to evade tax should be excluded from the scope of this Directive. Thresholds should not be generally included in this Directive as they could be easily circumvented by splitting accounts into different Financial Institutions. The financial information which is required to be reported and exchanged should concern not only all relevant income (interests, dividends and similar types of income) but also account balances and sale proceeds from Financial Assets, in order to address situations where a taxpayer seeks to hide capital that in itself represents income or assets with regard to which tax has been evaded. Therefore, the processing of information under this Directive is necessary and proportionate for the purpose of enabling Member States' tax administrations to correctly and unequivocally identify the taxpayers concerned, to administer and enforce their tax laws in cross-border situations, to assess the likelihood of tax evasion being perpetrated, and to avoid unnecessary further investigations.
🡻 2014/107/EU recital 11
(13) Reporting Financial Institutions could meet their information obligations towards individual Reportable Persons by following the detailed arrangements on communication, including its frequency, provided for by their internal procedures in accordance with their domestic law.
🡻 (EU) 2015/2376 recital 1 (adapted)
(14) The issuance of advance tax rulings, which facilitate the consistent and transparent application of the law, is common practice, including in the Union. By providing certainty for business, clarification of tax law for taxpayers can encourage investment and compliance with the law and can therefore be conducive to the objective of further developing the single market in the Union on the basis of the principles and freedoms underlying the Treaties. However, rulings concerning tax-driven structures have, in certain cases, led to a low level of taxation of artificially high amounts of income in the country issuing, amending or renewing the advance ruling and left artificially low amounts of income to be taxed in any other countries involved. ⌦ A high level of ⌫ transparency is therefore required.
🡻 (EU) 2015/2376 recital 7
(15) Taxpayers are entitled to rely on advance cross-border rulings or advance pricing arrangements during, for example, taxation processes or tax audits under the condition that the facts on which the advance cross-border rulings or advance pricing arrangements are based have been accurately presented and that the taxpayers abide by the terms of the advance cross-border rulings or advance pricing arrangements.
🡻 (EU) 2015/2376 recital 8 (adapted)
(16) Member States ⌦ should ⌫ exchange information irrespective of whether the taxpayer abides by the terms of the advance cross-border ruling or advance pricing arrangement.
🡻 (EU) 2015/2376 recital 10 (adapted)
(17) In order to reap the benefits of the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements, the information should be communicated promptly after they are issued, amended or renewed, and regular intervals for the communication of the information should therefore be ⌦ set out ⌫.
🡻 (EU) 2015/2376 recital 11
(18) For reasons of legal certainty, it is appropriate, under a set of very strict conditions, to exclude from the mandatory automatic exchange bilateral or multilateral advance pricing arrangements with third countries following the framework of existing international treaties with those countries, where the provisions of those treaties do not permit disclosure of the information received under that treaty to a third party country. In these cases, however, the information identified in paragraph 5 of Article 9 relating to the requests that lead to issuance of such bilateral or multilateral advance pricing arrangements should be exchanged instead. Therefore, in such cases, the information to be communicated should include the indicator that it is provided on the basis of such a request.
🡻 (EU) 2015/2376 recital 13 (adapted)
(19) ⌦ the ⌫ standard form for the mandatory automatic exchange of information ⌦ on advance cross-border rulings and advance pricing arrangements ⌫, account ⌦ should be taken ⌫ of work performed at the OECD's Forum on Harmful Tax Practices, in the context of the Action Plan on Base Erosion and Profit Shifting ⌦ (‘BEPS Action Plan’) ⌫. It is also appropriate to work closely with the OECD, in a coordinated manner and not only in the area of the development of such a standard form for mandatory automatic exchange of information. The ultimate aim should be a global level playing field, where the Union should take a leading role by promoting that the scope of information on advance cross-border rulings and advance pricing arrangements to be exchanged automatically should be rather broad.
🡻 (EU) 2015/2376 recital 14
(20) Member States should exchange basic information, and a limited set of basic information should also be communicated to the Commission. This should enable the Commission to monitor and evaluate the effective application of the mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements at any time. The information received by the Commission should not, however, be used for any other purposes. Such communication would moreover not discharge a Member State from its obligations to notify any State aid to the Commission.
🡻 (EU) 2015/2376 recital 16 (adapted)
(21) Where necessary, following the stage of mandatory automatic exchange of information ⌦ on advance cross-border rulings and advance pricing arrangements ⌫, a Member State should be able to rely on Article 5 as regards the exchange of information on request to obtain additional information, including the full text of advance cross-border rulings or advance pricing arrangements, from the Member State having issued such rulings or arrangements.
🡻 (EU) 2015/2376 recital 18
(22) Member States should take all reasonable measures necessary to remove any obstacle that might hinder the effective and widest possible mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements.
🡻 (EU) 2015/2376 recital 19 (adapted)
(23) In order to enhance the efficient use of resources, facilitate the exchange of information and avoid the need for Member States each to make similar developments to their systems to store information, specific provision should be made for a central directory ⌦ to be ⌫ accessible to all Member States and the Commission ⌦ where ⌫ Member States ⌦ should ⌫ upload and store information, instead of exchanging that information by secured email.
🡻 (EU) 2016/881 recital 2
(24) As multinational enterprise groups (MNE Groups) are active in different countries, they have the possibility of engaging in aggressive tax-planning practices that are not available for domestic companies. When MNE Groups do so, purely domestic companies, normally small and medium-sized enterprises (SMEs), may be particularly affected, as their tax burden is higher than that of MNE Groups. On the other hand, all Member States may suffer revenue losses and there is the risk of competition to attract MNE Groups by offering them further tax benefits.
🡻 (EU) 2016/881 recital 3
(25) Member States' tax authorities need comprehensive and relevant information on MNE Groups regarding their structure, transfer-pricing policy and internal transactions in and outside the Union. That information will enable the tax authorities to react to harmful tax practices by making changes in legislation or by undertaking adequate risk assessments and tax audits, and to identify whether companies have engaged in practices that have the effect of artificially shifting substantial amounts of income into tax-advantaged environments.
🡻 (EU) 2016/881 recital 4 (adapted)
(26) ⌦ A high level of ⌫ transparency towards tax authorities could have the effect of giving MNE Groups an incentive to abandon certain practices and pay their fair share of tax in the country where profits are made. ⌦ Ensuring ⌫ transparency for MNE Groups is therefore an essential part of tackling base erosion and profit shifting.
🡻 (EU) 2016/881 recital 5 (adapted)
(27) The Resolution of the Council and of the representatives of the governments of the Member States on a code of conduct on transfer pricing documentation for associated enterprises in the European Union (EU TPD) 7 sets out a way for MNE Groups in the Union to provide tax authorities with information on global business operations and transfer-pricing policies (‘the masterfile’) and information on the concrete transactions of the local entity (‘the local file’). However, the EU TPD does not provide for any mechanism for the provision of a country-by-country report.
🡻 (EU) 2016/881 recital 7
(28) In order to enhance the efficient use of public resources and reduce the administrative burden for MNE Groups, the reporting obligation should only apply to MNE Groups with annual consolidated group revenue exceeding a certain amount. This Directive should ensure that the same information is collected and made available to tax administrations in a timely manner throughout the Union.
🡻 (EU) 2016/881 recital 8
(29) To ensure the proper functioning of the internal market, the Union has to provide for fair competition between Union MNE Groups and non-Union MNE Groups for which one or several of their entities are located in the Union. Both of them should therefore be subject to the reporting obligation. However, in order to ensure a smooth transition, Member States should be able to defer by one year the reporting obligation for Constituent Entities resident in a Member State which are not the Ultimate Parent Entities of MNE Groups or their Surrogate Parent Entities.
🡻 (EU) 2016/881 recital 12
(30) The mandatory automatic exchange of country-by-country reports between Member States should in each case include the communication of a defined set of basic information that would be accessible to those Member States in which, on the basis of the information in the country-by-country report, one or more entities of the MNE Group are either resident for tax purposes or subject to tax with respect to the business carried out through a permanent establishment of an MNE Group.
🡻 (EU) 2016/881 recital 13 (adapted)
(31) In order to minimise costs and administrative burdens both for tax administrations and for MNE Groups, it is necessary to provide rules that are in line with the international developments and contribute positively to their implementation. On 19 July 2013 the OECD published its BEPS Action Plan, which is a major initiative to modify existing international tax rules. On 5 October 2015 the OECD presented its final reports, which were endorsed by the G20 Finance Ministers. During the meeting of 15 and 16 November 2015, the OECD package was also endorsed by the G20 leaders.
🡻 (EU) 2016/881 recital 14 (adapted)
(32) The work on Action 13 of the BEPS Action Plan resulted in a set of standards for providing information for MNE Groups, including the masterfile, the local file and the country-by-country report. It is therefore appropriate to take into account the OECD standards ⌦ in relation to ⌫ the rules on the country-by-country report.
🡻 (EU) 2016/881 recital 15
(33) In a situation where a Constituent Entity cannot obtain or acquire all the information required in order to fulfil the reporting requirement under this Directive, Member States could consider this as an indication of the need to assess high-level transfer-pricing risks and other base-erosion and profit-shifting risks related to that MNE Group.
🡻 (EU) 2016/881 recital 16
(34) Where a Member State determines that another Member State has persistently failed to automatically provide country-by-country reports, it should endeavour to consult that Member State.
🡻 (EU) 2016/881 recital 17
(35) Union action in the area of country-by-country reporting should continue to take particular account of future developments at OECD level. In implementing this Directive, Member States should use the 2015 Final Report on Action 13 of the OECD/G20 Base Erosion and Profit Shifting Project, developed by the OECD, as a source of illustration or interpretation for this Directive and in order to ensure consistency of application across Member States.
🡻 (EU) 2016/881 recital 20 (adapted)
(36) The scope of the mandatory exchange of information should therefore include the automatic exchange of information on the country-by-country report.
🡻 (EU) 2016/881 recital 21 (adapted)
(37) Member States' yearly report to the Commission under Article 27 of ⌦ this ⌫ Directive should detail the extent of local filing under Article 10 and Point 1 of Section II of Annex III and a list of any jurisdictions where Ultimate Parent Entities of Union-based Constituent Entities are resident, but full reports have not been filed or exchanged.
🡻 (EU) 2018/822 recital 3 (adapted)
(38) Considering that most of the potentially aggressive tax-planning arrangements span across more than one jurisdiction, the automatic exchange of information between tax authorities ⌦ of different Member States ⌫ is crucial in order to provide those authorities with the necessary information to enable them to take action where they observe aggressive tax practices.
🡻 (EU) 2018/822 recital 4 (adapted)
(39) In the G7 Bari Declaration of 13 May 2017 on fighting tax crimes and other illicit financial flows, the OECD was asked to start discussing possible ways to address arrangements designed to circumvent reporting under the CRS or aimed at providing beneficial owners with the shelter of non-transparent structures, considering also model mandatory disclosure rules inspired by the approach taken for avoidance arrangements outlined within the BEPS Action 12 Report.
🡻 (EU) 2018/822 recital 5 (adapted)
(40) It is necessary to recall how certain financial intermediaries and other providers of tax advice seem to have actively assisted their clients in concealing money offshore.
🡻 (EU) 2018/822 recital 6 (adapted)
(41) The reporting of potentially aggressive cross-border tax-planning arrangements can contribute effectively to the efforts for creating an environment of fair taxation in the internal market. In this light, an obligation ⌦ should be laid down ⌫ for intermediaries to inform tax authorities of certain cross-border arrangements that could potentially be used for aggressive tax planning. Following the reporting, the tax authorities ⌦ should ⌫ share information with their peers in other Member States. Such arrangements should also enhance the effectiveness of the CRS. In addition, it would be crucial to grant the Commission access to a sufficient amount of information so that it can monitor the proper functioning of this Directive. Such access to information by the Commission does not discharge a Member State from its obligations to notify any State aid to the Commission.
🡻 (EU) 2018/822 recital 7 (adapted)
(42) It is acknowledged that the reporting of potentially aggressive cross-border tax-planning arrangements would stand a better chance of achieving its envisaged deterrent effect where the relevant information reached the tax authorities at an early stage, in other words before such arrangements are actually implemented. To facilitate the work of Member States' administrations, the subsequent automatic exchange of information on such arrangements ⌦ should ⌫ take place every quarter.
🡻 (EU) 2018/822 recital 8
(43) To ensure the proper functioning of the internal market and to prevent loopholes in the proposed framework of rules, the reporting obligation should be placed upon all actors that are usually involved in designing, marketing, organising or managing the implementation of a reportable cross-border transaction or a series of such transactions, as well as those who provide assistance or advice. It should not be ignored either that, in certain cases, the reporting obligation would not be enforceable upon an intermediary due to a legal professional privilege or where there is no intermediary because, for instance, the taxpayer designs and implements a scheme in-house. It would thus be crucial that, in such circumstances, tax authorities do not lose the opportunity to receive information about tax-related arrangements that are potentially linked to aggressive tax planning. It would therefore be necessary to shift the reporting obligation to the taxpayer who benefits from the arrangement in such cases.
🡻 (EU) 2018/822 recital 9
(44) Aggressive tax-planning arrangements have evolved over the years to become increasingly more complex and are always subject to constant modifications and adjustments as a reaction to defensive countermeasures by the tax authorities. Taking this into consideration, it would be more effective to endeavour to capture potentially aggressive tax-planning arrangements through the compiling of a list of the features and elements of transactions that present a strong indication of tax avoidance or abuse rather than to define the concept of aggressive tax planning. Those indications are referred to as ‘hallmarks’.
🡻 (EU) 2018/822 recital 10 (adapted)
(45) Given that the primary objective of this Directive concerning the reporting of potentially aggressive cross-border tax-planning arrangements should focus on ensuring the proper functioning of the internal market, it is critical not to regulate at the level of the Union beyond what is necessary to achieve the envisaged aims. This is why common rules on reporting ⌦ should be limited ⌫ to cross-border situations, namely those involving either more than one Member State or a Member State and a third country. In such circumstances, due to the potential impact on the functioning of the internal market, one can justify the need for enacting a common set of rules, rather than leaving the matter to be dealt with at the national level. A Member State could take further national reporting measures of a similar nature, but any information collected in addition to what is reportable in accordance with this Directive should not be communicated automatically to the competent authorities of the other Member States. That information could be exchanged on request or spontaneously according to applicable rules.
🡻(EU) 2018/822 recital 11 (adapted)
(46) Considering that the reportable arrangements should have a cross-border dimension, it would be important to share the relevant information with the tax authorities in other Member States in order to ensure the maximum effectiveness of this Directive in deterring aggressive tax-planning practices.
🡻 (EU) 2018/822 recital 13 (adapted)
(47) In order to minimise costs and administrative burdens both for tax administrations and intermediaries and to ensure the effectiveness of this Directive in deterring aggressive tax-planning practices, the scope of automatic exchange of information in relation to reportable cross-border arrangements within the Union should be consistent with international developments. A specific hallmark should be ⌦ laid down ⌫ to address arrangements designed to circumvent reporting obligations involving automatic exchanges of information. For the purposes of that hallmark, agreements on the automatic exchange of financial account information under the CRS should be treated as equivalent to the reporting obligations laid down in Article 8(4) and in Annex I. In implementing the parts of this Directive addressing CRS avoidance arrangements and arrangements involving legal persons or legal arrangements or any other similar structures, Member States could use the work of the OECD, and more specifically its Model Mandatory Disclosure Rules for Addressing CRS Avoidance Arrangements and Opaque Offshore Structures and its Commentary, as a source of illustration or interpretation, in order to ensure consistency of application across Member States, insofar those texts are aligned with the provisions of Union law.
🡻(EU) 2018/822 recital 14 (adapted)
(48) While direct taxation remains within the competence of Member States, it is appropriate to refer to a corporate tax rate of zero or almost zero, solely for the purpose of clearly defining the scope of the hallmark that covers arrangements involving cross-border transactions, which should be reportable under ⌦ this ⌫ Directive by intermediaries or, as appropriate, taxpayers, and about which the competent authorities should exchange information automatically. Moreover, it is appropriate to recall that aggressive cross-border tax-planning arrangements, the main purpose or one of the main purposes of which is to obtain a tax advantage that defeats the object or purpose of the applicable tax law, are subject to the general anti-abuse rule as set out in Article 6 of Council Directive (EU) 2016/1164 8 .
🡻 2011/16/EU recital 11 (adapted)
(49) The spontaneous exchange of information between Member States should also be encouraged.
🡻 2011/16/EU recital 12
(50) Time limits for the provision of information under this Directive should be laid down in order to ensure that the information exchange is timely and thus effective.
🡻 2011/16/EU recital 13
(51) It is important that officials of the tax administration of one Member State are allowed to be present in the territory of another Member State.
🡻 2011/16/EU recital 14
(52) Since the tax situation of one or more persons liable to tax established in several Member States is often of common or complementary interest, it should be made possible for simultaneous controls to be carried out on such persons by two or more Member States, by mutual agreement and on a voluntary basis.
🡻 2011/16/EU recital 15 (adapted)
(53) In view of the legal requirement in certain Member States that a taxpayer be notified of decisions and instruments concerning his tax liability and of the ensuing difficulties for the tax authorities, including cases where the taxpayer has relocated to another Member State, it is desirable that, in such circumstances, the tax authorities be able to call upon the cooperation of the competent authorities of the Member State to which the taxpayer has relocated.
🡻 (EU) 2015/2376 recital 15
(54) Feedback by the receiving Member State to the Member State sending the information is a necessary element of the operation of an effective system of automatic information exchange. It is therefore appropriate to underline that Member States' competent authorities should send, once a year, feedback on the automatic exchange of information to the other Member States concerned. In practice, this mandatory feedback should be done by arrangements agreed upon bilaterally.
🡻 2011/16/EU recital 17
(55) Collaboration between the Member States and the Commission is necessary for the permanent study of cooperation procedures and the sharing of experience and best practices in the fields considered.
🡻 2011/16/EU recital 18 (adapted)
(56) It is important for the efficiency of administrative cooperation that information and documents obtained under this Directive ⌦ can ⌫, subject to the restrictions laid down in this Directive, be used by the Member State that received them also for other purposes. It is also important that Member States ⌦ be able to ⌫ transmit that information to a third country, under certain conditions.
🡻 2011/16/EU recital 19
(57) The situations in which a requested Member State may refuse to provide information should be clearly defined and limited, taking into account certain private interests which should be protected as well as the public interest.
🡻 2011/16/EU recital 20
(58) However, a Member State should not refuse to transmit information because it has no domestic interest or because the information is held by a bank, other financial institution, nominee or person acting in an agency or fiduciary capacity or because it relates to ownership interests in a person.
🡻 2011/16/EU recital 21
(59) This Directive contains minimum rules and should therefore not affect Member States’ right to enter into wider cooperation with other Member States under their national legislation or in the framework of bilateral or multilateral agreements concluded with other Member States.
🡻 2011/16/EU recital 22
(60) It should also be made clear that where a Member State provides a wider cooperation to a third country than is provided for under this Directive, it should not refuse to provide such wider cooperation to other Member States wishing to enter into such mutual wider cooperation.
🡻 2011/16/EU recital 23
(61) The exchange of information should be made through standardised forms, formats and channels of communication.
🡻 (EU) 2016/2258 recital 2 (adapted)
(62) Where the Account Holder is an intermediary structure, Financial Institutions ⌦ should ⌫ look through that structure, and identify and report on its beneficial owners. That important element in the application of ⌦ this ⌫ Directive relies on anti-money-laundering (‘AML’) information obtained pursuant to Directive (EU) 2015/849 of the European Parliament and of the Council 9 for the identification of the beneficial owners.
🡻 (EU) 2016/2258 recital 3 (adapted)
(63) To ensure effective monitoring of the application by Financial Institutions of the due diligence procedures set out in ⌦ this ⌫ Directive, the tax authorities need access to AML information. In the absence of such access, those authorities would not be able to monitor, confirm and audit that the Financial Institutions are applying ⌦ this ⌫ Directive properly by correctly identifying and reporting on the beneficial owners of intermediary structures.
🡻 (EU) 2016/2258 recital 4 (adapted)
(64) ⌦ This ⌫ Directive encompasses other exchanges of information and forms of administrative cooperation between Member States. Access to AML information held by entities pursuant to Directive (EU) 2015/849 within the framework of administrative cooperation in the field of taxation ⌦ should ⌫ ensure that tax authorities are better equipped to fulfil their obligations under ⌦ this ⌫ Directive and to combat tax evasion and fraud more effectively.
🡻 (EU) 2016/2258 recital 5 (adapted)
(65) Tax authorities ⌦ should therefore be ⌫ able to access the AML information, procedures, documents and mechanisms for the performance of their duties in monitoring the proper application of ⌦ this ⌫ Directive and for the functioning of all forms of administrative cooperation provided for ⌦ therein ⌫.
🡻 2011/16/EU recital 24
(66) An evaluation of the effectiveness of administrative cooperation should be made, especially on the basis of statistics.
🡻 2011/16/EU recital 27 (adapted)
(67) All exchange of information referred to in this Directive is subject to Regulations (EU) 2016/679 10 and (EU) 2018/1725 11 of the European Parliament and of the Council. However, it is appropriate to consider limitations of certain rights and obligations laid down by Regulation (EU) 2016/679 in order to safeguard the interests referred to in Article 23(1)(e) of that Regulation. Such limitations are necessary and proportionate in view of the potential loss of revenue for Member States and the crucial importance of information covered by this Directive for the effectiveness of the fight against fraud.
🡻 2014/107/EU recital 12
(68) Reporting Financial Institutions, sending Member States and receiving Member States, in their capacity as data controllers, should retain information processed in accordance with this Directive for no longer than necessary to achieve the purposes thereof. Given the differences in Member States' legislation, the maximum retention period should be set by reference to the statute of limitations provided by each data controller's domestic tax legislation.
🡻 (EU) 2016/881 recital 22 (adapted)
(69) The information exchanged under this Directive ⌦ should ⌫ not lead to the disclosure of a commercial, industrial or professional secret, a commercial process or information the disclosure of which would be contrary to public policy.
🡻 (EU) 2016/881 recital 9
(70) Member States should lay down rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and ensure that those penalties are implemented. While the choice of penalties remains within the discretion of the Member States, the penalties provided for should be effective, proportionate and dissuasive.
🡻 2014/107/EU recital 13
(71) In implementing this Directive, Member States should use the Commentaries on the Model Competent Authority Agreement and CRS Common Reporting Standard, developed by the OECD, as a source of illustration or interpretation and in order to ensure consistency in application across Member States. Union action in this area should continue to take particular account of future developments at OECD level.
🡻 (EU) 2018/822 recital 16 (adapted)
(72) In order to ensure uniform conditions for the implementation of this Directive and in particular for the automatic exchange of information between tax authorities, implementing powers should be conferred on the Commission to adopt standard ⌦ forms ⌫ with a limited number of components, including the linguistic arrangements. For the same reason, implementing powers should also be conferred on the Commission to adopt the necessary practical arrangements for upgrading ⌦ the common communication network and ⌫ the central directory on administrative cooperation in the field of taxation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 12 .
🡻 (EU) 2016/2258 recital 6
(73) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. Where this Directive requires that access to personal data by tax authorities be provided by law, this does not necessarily require an act of parliament, without prejudice to the constitutional order of the Member State concerned. However, such a law should be clear and precise, and its application should be clear and foreseeable to persons subject to it, in accordance with the case-law of the Court of Justice of the European Union and the European Court of Human Rights.
🡻 (EU) 2015/2376 recital 23
(74) Since the objective of this Directive, namely the efficient administrative cooperation between Member States under conditions compatible with the proper functioning of the internal market, cannot be sufficiently achieved by the Member States but can rather, by reason of the uniformity and effectiveness required, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
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(75) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law and the dates of application of the Directives set out in Annex V, Part B,
🡻 2011/16/EU (adapted)