Enhanced administrative cooperation in the field of (direct) taxation
On 6th December 2012 the European Commission adopted a Regulation laying down detailed rules for implementing Council Directive 2011/16/EU (Commission Implementing Regulation 1156/2012). It includes various provisions on the standard forms and means of communication that Member States will use when exchanging information.
The national laws, regulations and administrative provisions implementing the Directive entered into force on 1st January, 2013, with the exception of the provisions relating to automatic exchange of information which will enter into force on 1st January, 2015.
On 12th June, 2013 the Commission proposed extending the automatic exchange of information between EU tax administrations, as part of the intensified fight against tax evasion. See the press release (IP/13/530), the frequently asked questions (MEMO/13/533) and the proposal (COM/2013/348 ), and Commissioner Šemeta's speech.
Council Directive 2011/16/EU is based on a proposal presented by, the European Commission on 2 February 2009 to replace Council Directive 77/799/EEC concerning mutual assistance by the competent authorities of Member States in the field of direct taxation and taxation of insurance premiums (COM(2009)29 final and the press release IP/09/201 ).
The ECOFIN Council of 15th February 2011 formally adopted the new Council Directive 2011/16/EU on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC. The Directive was published in the Official Journal on 11 March 2011 (Council Directive 2011/16/EU and the press release).
Reasons for the 2011 Directive
Because taxation is not harmonised across the EU, enhanced administrative cooperation is the only way of ensuring taxes are correctly assessed and of combating tax fraud and tax evasion.
The previous Directive on mutual assistance – 77/799/EEC – was designed in a different context to current internal-market requirements. Even after amendment, it would never have been sufficient to enable Member States to cooperate effectively on taxation.
To maintain full national sovereignty over the types and level of taxes, the EU needed reinforced instruments that establish a basis for administrative cooperation between the Member States in line with new requirements in a globalised era and create trust by laying down the same rules, obligations and rights for all.
For these reasons, Directive 77/799/EEC was repealed and a new Directive introduced.
Main provisions of the 2011 Directive:
- The Directive ensures that the EU standards for transparency and exchange of information on request are aligned to international standards. In particular, it provides that Member States can no longer refuse to supply information solely because this information is held by a bank or other type of financial institution.
- The Directive provides for the exchange of information that is of `foreseeable relevance` to the administration and the enforcement of Member States' tax laws.
- The scope of the Directive is extended to all taxes of any kind with the exception of VAT, customs duties, excise duties and compulsory social contributions already covered by other Union legislation on administrative cooperation.
- The exchanges can relate to natural and legal persons, to associations of persons and any other legal arrangement.
- The Directive introduces automatic exchange of information from 1 January 2015 on five categories of income and capital based on available information (income from employment, director's fees, life insurance products not covered by other Directives, pensions, ownership of and income from immovable property). Following a Commission report to be submitted before 1 July 2017 and on the basis of a new proposal by the Commission, this list might be extended to dividends, capital gains and royalties. In addition, the Council may also decide to introduce unconditional automatic exchange of information in respect of at least three of the five aforementioned categories.
- The Directive also ensures that the existing mechanisms for exchange of information are improved. Deadlines are introduced to accelerate procedures both for the exchange of information on request (reply within six months following receipt of request) and for spontaneous exchange of information (transmission of information no later than one month after it becomes available).
- The Directive introduces a mechanism to encourage feedback by the Member States that have received the information. Such feedback should be given, at the latest, three months after the outcome of the use of the information is known.
- The Directive provides for other means of administrative cooperation including being present in the offices where the administrative authorities of the requested Member State carry out their duties, being present in administrative enquiries of the requested Member State, simultaneous controls, requests for notification and sharing of best practices.
- The Directive provides for the introduction of standard forms for exchange of information on request and spontaneous exchanges, computerised formats for the automatic exchange of information and channels for exchanging information.
- The Directive contains a most favoured nation clause: if a Member State provides wider cooperation to a third country than that provided for under the directive it may not refuse such wider cooperation to another Member State that requests it on its own behalf.
- The Directive establishes a regulatory committee, which will be competent for implementing the technical aspects of the directive.