(1)

In order to accommodate new initiatives of the Union in the field of tax transparency, Council Directive 2011/16/EU (21) has been the subject of a series of amendments over the last years. These changes mainly introduced reporting obligations, followed by communication to other Member States, related to financial accounts, advance cross-border rulings and advance pricing arrangements, country-by-country reports and reportable cross-border arrangements. In such a way, these amendments extended the scope of the automatic exchange of information. The tax authorities now have a broader set of cooperation tools at their disposal, to detect and tackle forms of tax fraud, tax evasion and tax avoidance.

(1)

In order to accommodate new initiatives of the Union in the field of tax transparency, Council Directive 2011/16/EU (21) has been the subject of a series of amendments over the last years. These changes mainly introduced reporting obligations, followed by communication to other Member States, related to financial accounts, advance cross-border rulings and advance pricing arrangements, country-by-country reports and reportable cross-border arrangements. In such a way, these amendments extended the scope of the automatic exchange of information. The tax authorities now have a broader set of cooperation tools at their disposal, to detect and tackle forms of tax fraud, tax evasion and tax avoidance , in order to safeguard tax revenues and to ensure fair taxation .

(1a)

The broader set of cooperation tools, the digital transition and the aim of enhancing cooperation between national authorities require qualified human resources and adequate financial resources. To that end, the changes proposed must be accompanied by an adequate level of investment, mainly in the adaptation of informatics and digital infrastructure and professional training. Ultimately, Member States' capacity to process all financial information received should be enhanced and tax administrations' financial, human and IT resources should be increased.

(2)

In the past years, the Commission has been monitoring the application and, in 2019, completed an evaluation of Directive 2011/16/EU (22). While significant improvements have been made in the field of automatic exchange of information, there is still a need to improve existing provisions that relate to all forms of exchanges of information and administrative cooperation.

(2)

In the past years, the Commission has been monitoring the application and, in 2019, completed an evaluation of Directive 2011/16/EU (22). While significant improvements have been made in the field of automatic exchange of information, there is still a need to improve existing provisions that relate to all forms of exchanges of information and administrative cooperation. In order to take into account the evolution of the situation with regard to tax transparency, that Directive might need to be updated regularly.

(3)

Pursuant to Article 5 of Directive 2011/16/EU, following a request of a requesting authority, the requested authority is to communicate to the requesting authority any information it has in its possession, or that it obtains as a result of administrative enquiries, which is foreseeably relevant to the administration and enforcement of the domestic laws of the Member States concerning the taxes falling within the scope of that Directive. To ensure effectiveness of the exchanges of information and prevent unjustified refusals of requests, as well as to provide legal clarity and certainty for both tax administrations and taxpayers, the standard of foreseeable relevance should be clearly delineated. In this context, it should also be clarified that the standard of foreseeable relevance should not apply to requests for additional information following an exchange of information in accordance with Article 8a of Directive 2011/16/EU concerning an advance cross-border ruling or an advance pricing arrangement.

(3)

Pursuant to Article 5 of Directive 2011/16/EU, following a request of a requesting authority, the requested authority is to communicate to the requesting authority any information it has in its possession, or that it obtains as a result of administrative enquiries, which is foreseeably relevant to the administration and enforcement of the domestic laws of the Member States concerning the taxes falling within the scope of that Directive. To ensure effectiveness of the exchanges of information and prevent unjustified refusals of requests, as well as to provide legal clarity and certainty for both tax administrations and taxpayers, the standard of foreseeable relevance should be clearly delineated in line with the jurisprudence of the Court of Justice of the European Union which states that the term ‘foreseeable relevance’ is intended to provide for exchange of information in tax matters to the widest possible extent . In this context, it should also be clarified that the standard of foreseeable relevance should not apply to requests for additional information following an exchange of information in accordance with Article 8a of Directive 2011/16/EU concerning an advance cross-border ruling or an advance pricing arrangement.

(3a)

The Union and the Member States should ensure a harmonised system of penalties and sanctions across the Union in order to prevent the exploitation by platform operators of loopholes and differences among Member States’ taxation systems. Where the rules are infringed, financial penalties and exclusion from public contracts should be considered. In extreme and repeated cases, the possibility of revoking the business licence of the platform operator should be an option.

(4a)

In order to keep taxpayers correctly and fully informed, the competent authorities of Member States should disclose the income categories with regard to which the information is automatically shared with competent authorities of other Member States and third countries or jurisdictions.

(4b)

Any information regarding cross-border schemes with implications for third countries should also be disclosed to the tax authorities in those countries. That requirement should concern in particular developing countries, which often have a more limited access to international systems of exchange of tax information.

(6a)

Proper identification of taxpayers is essential to effective exchange of information between tax administrations. A taxpayer identification number (TIN) should always be made available when required by Directive 2011/16/EU and a European TIN should be created to provide the best means for that identification. The European TIN would allow any third party to quickly, easily and correctly identify and record TINs in cross-border relations and serve as a basis for effective automatic exchange of information between Member States’ tax administrations.

(7)

Tax administrations frequently request information from digital platform operators. This causes platform operators significant administrative and compliance costs. At the same time, some Member States have imposed a unilateral reporting obligation, which creates an additional administrative burden for platform operators, as they have to comply with multitude of national standards of reporting. It would therefore be essential that a standardised reporting obligation apply across the internal market.

(7)

Tax administrations frequently request information from digital platform operators. This causes platform operators significant administrative and compliance costs. At the same time, some Member States have imposed a unilateral reporting obligation, which creates an additional administrative burden for platform operators, as they have to comply with a multitude of national standards of reporting. It would therefore be essential that a standardised reporting obligation apply across the internal market. That standardisation is essential in order to promote three major objectives: to minimise compliance costs for operators, to increase the efficiency of national authorities and to reduce bureaucracy for both taxpayers and tax administrations.

(7a)

The digitalisation of the economy is one of the cornerstones of the Union’s future economic and growth strategy. The Union should be an attractive terrain for digital companies, in particular for their commercial, innovation and employment potential. However, digital goods and services tend to be highly mobile and intangible and therefore more prone to suffering from aggressive tax planning practices, since many business models do not require physical infrastructure in order to carry out transactions with customers and generate profits. That calls into question the suitability of the Union corporate tax models designed for brick and mortar industries, including with regard to the extent that valuation and calculation criteria could be reinvented to reflect the commercial activities of the 21st century. Moreover, that leads to a situation in which online sellers and sellers operating via platforms currently have the opportunity to generate revenues that are poorly reported and thus at high risk of remaining undertaxed or untaxed.

(13)

Given the digital nature and flexibility of digital platforms, the reporting obligation should extend to those platform operators that perform commercial activity in the Union but are neither residents for tax purposes, nor incorporated or managed nor have a permanent establishment in a Member State. This would ensure a level playing field among the platforms and prevent unfair competition. In order to facilitate this, foreign platforms should be required to register and report in one single Member State for the purpose of operating in the internal market.

(13)

Given the digital nature and flexibility of digital platforms, the reporting obligation should extend to those platform operators that perform commercial activity in the Union but are neither residents for tax purposes, nor incorporated or managed nor have a permanent establishment in a Member State. This would ensure a level playing field among the platforms and prevent unfair competition. In order to facilitate this, foreign platforms should be required to register and report in one single Member State for the purpose of operating in the internal market , taking into account the location of their global or regional headquarters, their effective place of management as well as the existence of substantial economic activity in that chosen Member State.

(14a)

Considering that the progressively digitised and globalised economy reveals complex and challenging dimensions, such as crypto-assets, it is important to increase cooperation between national tax administrations in that field. A clear definition of crypto-assets, taking into account the ongoing work within the OECD and FATF, is important in combating tax evasion and promoting fair taxation. The FATF adopted a broad definition of virtual currency and recommended incorporating within the scope of AML/CFT obligations any natural or legal person who conducts activities including exchange between crypto-assets, transfer of crypto-assets and participation in and provision of financial services related to initial coin offerings. The proliferation of crypto-currencies is a topical matter and should be considered in any effort to increase administrative cooperation, based on the principles of subsidiarity and proportionality. Also, given global technological advancement, there is a need for advanced supervisory mechanisms that are in close contact with the relevant counter-criminal financing bodies.

(15)

The objective of preventing tax evasion and avoidance could be ensured by requiring digital platform operators to report income earned through platforms at an early stage, before the national tax authorities carry out their yearly tax assessments. To facilitate the work of Member States’ tax authorities, the reported information should be exchanged within one month following the reporting. In order to facilitate the automatic exchange of information and enhance the efficient use of resources, exchanges should be carried out electronically through the existing common communication network (‘CCN’) developed by the Union.

(15)

The objective of preventing tax evasion and avoidance could be ensured by requiring digital platform operators to report income earned through platforms at an early stage, before the national tax authorities carry out their yearly tax assessments. To facilitate the work of Member States’ tax authorities, the reported information should be exchanged without undue delay and at the latest within one month following the reporting. In order to facilitate the automatic exchange of information and enhance the efficient use of resources, exchanges should be carried out electronically through the existing common communication network (‘CCN’) developed by the Union. The digital infrastructure should be resilient and guarantee the highest standard of security.

(15a)

This Directive should ensure that competent authorities can access data on the duration of rental contracts where short term property renting is limited in time, so as to facilitate the implementation of those limitations and a control over rental price increases in the Union.

(15b)

Individuals who have access to information relating to sensitive tax information of platform operators and multinational corporations regarding tax evasion and tax avoidance practices, should be encouraged to come forward and cooperate with the authorities with discretion and respect for the public interest, and they should be fully protected if they do so.

(16)

The evaluation of Directive 2011/16/EU carried out by the Commission demonstrated the need for consistent monitoring of the effectiveness in the application of that Directive and of the national transposing provisions enabling this application. In order for the Commission to continue to properly monitor and evaluate the effectiveness of the automatic exchanges of information under Directive 2011/16/EU, Member States should be obliged to communicate the statistics on such exchanges to the Commission on an annual basis.

(16)

The evaluation of Directive 2011/16/EU carried out by the Commission demonstrated the need for consistent monitoring of the effectiveness in the application of that Directive and of the national transposing provisions enabling this application. In order for the Commission to continue to properly monitor and evaluate the effectiveness of the automatic exchanges of information under Directive 2011/16/EU, Member States should be obliged to communicate the statistics on such exchanges to the Commission on an annual basis. They should also communicate to the Commission, on an annual basis, all relevant information related to obstacles for the proper implementation of that Directive .

(16a)

The Commission should within two years of the entry into force of this Directive present a report on the implementation and efficiency of the provisions that this Directive introduces into Directive 2011/16/EU and make specific proposals, including legislative proposals, for its improvement. That report should be made public .

(19)

Multilateral controls carried out with the support of the Fiscalis 2020 programme established by Regulation (EU) No 1286/2013 of the European Parliament and of the Council (5) have demonstrated the benefit of co-ordinated controls of one or more taxpayers that are of common or complementary interest to two or more tax administrations in the Union. As there is no explicit legal base for conducting joint audits, such joint actions are currently conducted based on the combined provisions of Directive 2011/16/EU regarding the presence of foreign officials in the territory of other Member States and on simultaneous controls. However, in many cases this practice has proven to be insufficient and lacking legal clarity and certainty.

(19)

Multilateral controls carried out with the support of the Fiscalis 2020 programme established by Regulation (EU) No 1286/2013 of the European Parliament and of the Council (5) have demonstrated the benefit of co-ordinated controls of one or more taxpayers that are of common or complementary interest to two or more tax administrations in the Union. Therefore, on-site inspections and joint audits should be part of the Union framework of cooperation between tax administrations. As there is no explicit legal base for conducting joint audits, such joint actions are currently conducted based on the combined provisions of Directive 2011/16/EU regarding the presence of foreign officials in the territory of other Member States and on simultaneous controls. However, in many cases this practice has proven to be insufficient and lacking legal clarity and certainty. It is therefore important to eliminate that legal uncertainty and provide those controls with a legal basis within the framework of administrative cooperation.

(20)

Member States should adopt a clear and efficient legal framework to allow their tax authorities to perform joint audits of persons with cross-border activity. Joint audits are administrative enquiries conducted jointly by the competent authorities of two or more Member States, to examine a case linked to one or more persons of common or complementary interest to these Member States. Joint audits can play an important role in contributing to the better functioning of the internal market. Joint audits should be structured to offer legal certainty to taxpayers through clear procedural rules, including for mitigating the risk of double taxation.

(20)

Member States should adopt a clear and efficient legal framework to allow their tax authorities to perform joint audits of persons with cross-border activity. Joint audits are administrative enquiries conducted jointly by the competent authorities of two or more Member States, to examine a case linked to one or more persons of common or complementary interest to these Member States. Joint audits can play an important role in contributing to the better functioning of the internal market. Joint audits should be structured to offer legal certainty to taxpayers through clear procedural rules, including for mitigating the risk of double taxation. In addition to the legal framework required, Member States should provide for conditions that facilitate the organisation of joint audits at an operational level, notably by supporting training, including linguistic training, for staff likely to perform joint audits. It is recalled that the Fiscalis programme can provide financial support in that regard.

(21)

In order to ensure the effectiveness of the process, responses to requests for joint audits should be provided within a given timeframe. Rejections of requests should be duly justified. The procedural arrangements applicable to a joint audit should be those of the Member State where the relevant audit action takes place. Accordingly, evidence collected during a joint audit should be mutually recognised by the participating Member State(s). It is equally important that the competent authorities agree on the facts and circumstances of the case and endeavour to reach an agreement on how to interpret the tax position of the audited person(s). In order to ensure that the outcome of a joint audit can be implemented in the participating Member States, the final report should have equivalent legal value to the relevant national instruments that are issued as a result of an audit in the participating Member States. Where necessary, Member States should provide the legal framework for the performance of a corresponding adjustment.

(21)

In order to ensure the effectiveness of the process, responses to requests for joint audits should be provided within a given timeframe. Rejections of requests should be duly justified , should only be allowed to be given for the reasons laid out in this Directive and should be subject to a right of response by the requesting authority . The procedural arrangements applicable to a joint audit should be those of the Member State where the relevant audit action takes place. Accordingly, evidence collected during a joint audit should be mutually recognised by the participating Member State(s). It is equally important that the competent authorities agree on the facts and circumstances of the case and endeavour to reach an agreement on how to interpret the tax position of the audited person(s). In order to ensure that the outcome of a joint audit can be implemented in the participating Member States, the final report should have equivalent legal value to the relevant national instruments that are issued as a result of an audit in the participating Member States. Where necessary, Member States should provide the legal framework for the performance of a corresponding adjustment.

(24a)

It is equally important to emphasise that not only the exchange of information between tax authorities but also the sharing of best practices contributes to more efficient tax collection. In line with the Fiscalis 2020 Programme, Member States should give priority to the sharing of best practices among tax authorities.

(26)

In order to ensure uniform conditions for the implementation of Directive 2011/16/EU and in particular, for the automatic exchange of information between tax authorities, implementing powers should be conferred on the Commission to adopt a standard form, with a limited number of components, including the linguistic arrangements. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (25).

(26)

In order to ensure uniform conditions for the implementation of Directive 2011/16/EU and in particular, for the automatic exchange of information between tax authorities, implementing powers should be conferred on the Commission to adopt a standard form, with a limited number of components, including the linguistic arrangements. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (25). The Commission is entitled to produce reports and documents, using the information exchanged in an anonymised manner, so as to take into account the taxpayers’ right to confidentiality and in compliance with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

(26a)

Any processing of personal data carried out within the framework of Directive 2011/16/EU should continue to comply with Regulations (EU) 2016/679 and (EU) 2018/1725. The data processing provided for in Directive 2011/16/EU has the sole objective of serving a general public interest in the field of taxation, namely, combating tax fraud, tax avoidance and tax evasion, safeguarding tax revenues, and promoting fair taxation, which strengthens opportunities for social, political and economic inclusion in the Member States. Therefore, in Directive 2011/16/EU, the references to the relevant Union law on data protection should be updated and supplemented by the rules set out in this Directive.

(a)

for the purposes of Article 8(1) and Articles 8a, 8aa, 8ab and 8ac, the systematic communication of predefined information to another Member State, without prior request, at pre-established regular intervals.

(a)

for the purposes of Article 8(1) and Articles 8a, 8aa, 8ab and 8ac, the systematic communication of predefined and new information to another Member State, without prior request, at pre-established regular intervals.

(1a)

14.

‘advance cross-border ruling’ means any agreement, communication, or any other instrument or action with similar effects, including one issued, amended or renewed in the context of a tax audit, and which meets the following conditions:

‘14.

“advance ruling” means any agreement, communication, or any other instrument or action with similar effects, including one issued, amended or renewed in the context of a tax audit, and , irrespective of its formal, informal, legally binding or non-binding nature, which meets the following conditions:

(a)

is issued, amended or renewed by, or on behalf of, the government or the tax authority of a Member State, or the Member State’s territorial or administrative subdivisions, including local authorities, irrespective of whether it is effectively used;

(a)

is issued, amended or renewed by, or on behalf of, the government or the tax authority of a Member State, or the Member State’s territorial or administrative subdivisions, including local authorities, irrespective of whether it is effectively used;

(b)

is issued, amended or renewed, to a particular person or a group of persons, and upon which that person or a group of persons is entitled to rely;

(b)

is issued, amended or renewed, to a particular person or a group of persons, and upon which that person or a group of persons is entitled to rely;

(c)

concerns the interpretation or application of a legal or administrative provision concerning the administration or enforcement of national laws relating to taxes of the Member State, or the Member State’s territorial or administrative subdivisions, including local authorities;

(c)

concerns the interpretation or application of a legal or administrative provision concerning the administration or enforcement of national laws relating to taxes of the Member State, or the Member State’s territorial or administrative subdivisions, including local authorities;

(d)

relates to a cross-border transaction or to the question of whether or not activities carried on by a person in another jurisdiction create a permanent establishment; and

(e)

is made in advance of the transactions or of the activities in another jurisdiction potentially creating a permanent establishment or in advance of the filing of a tax return covering the period in which the transaction or series of transactions or activities took place. The cross-border transaction may involve, but is not restricted to, the making of investments, the provision of goods, services, finance or the use of tangible or intangible assets and does not have to directly involve the person receiving the advance cross-border ruling;

(e)

is made in advance of the transactions or of the activities in another jurisdiction potentially creating a permanent establishment or in advance of the filing of a tax return covering the period in which the transaction or series of transactions or activities took place. The transaction may involve, but is not restricted to, the making of investments, the provision of goods, services, finance or the use of tangible or intangible assets and does not have to directly involve the person receiving the advance ruling;’

(1b)

(3a)

(3b)

(aa)

In paragraph 3, the first subparagraph is deleted.

(ba)

In paragraph 3a, second subparagraph, point (a) is replaced by the following:

(a)

the name, address, TIN(s) and date and place of birth (in the case of an individual) of each Reportable Person that is an Account Holder of the account and, in the case of any Entity that is an Account Holder and that, after application of due diligence rules consistent with the Annexes, is identified as having one or more Controlling Persons that is a Reportable Person, the name, address, and TIN(s) of the Entity and the name, address, TIN(s) and date and place of birth of each Reportable Person;

(a)

the name, address, TIN(s) and date and place of birth (in the case of an individual) of each Reportable Person that is the ultimate beneficial Account Holder of the account and, in the case of any Entity that is an Account Holder and that, after application of due diligence rules consistent with the Annexes, is identified as having one or more Controlling Persons that is a Reportable Person, the name, address, and TIN(s) of the Entity and the name, address, TIN(s) and date and place of birth of each Reportable Person;

(-a)

(-aa)

In paragraph 2, the fourth subparagraph is deleted .

(-ab)

(-ac)

(aa)

In paragraph 6, point (a) is replaced by the following:

(a)

the identification of the person, other than a natural person , and where appropriate the group of persons to which it belongs;

‘(a)

the identification of the person, including natural persons , and where appropriate the group of persons to which it belongs;’

(b)

a summary of the advance cross-border ruling or advance pricing arrangement, including a description of the relevant business activities or transactions or series of transactions and any other information that could assist the competent authority in assessing a potential tax risk, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information whose disclosure would be contrary to public policy.

(b)

a summary of the advance cross-border ruling or advance pricing arrangement, including a description of the relevant business activities or transactions or series of transactions , all relevant direct and indirect tax implications such as the effective tax rates, and any other information that could assist the competent authority in assessing a potential tax risk, but omitting information that could lead to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information whose disclosure would be contrary to public policy.

(5a)

(5b)

‘(ha)

the list of beneficiaries, which is updated on a yearly basis.’

(h)

the Financial Account Identifier to which the Consideration is paid or credited, insofar as it is available to the Reporting Platform Operator and the competent authority of the Member State where the Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose ;

(h)

the Financial Account Identifier to which the Consideration is paid or credited, as it is collected by the Reporting Platform Operator;

(b)

Paragraph 2 is deleted.

(ba)

Paragraph 2 is replaced by the following:

(a)

the competent authority of each Member State shall, by automatic exchange, communicate to the competent authority of any other Member State, information regarding taxable periods as from 1 January 2019 concerning residents in that other Member State, on all categories of income and capital listed in Article 8(1), as they are to be understood under the national legislation of the Member State communicating the information; and

(a)

the lists of categories of income and capital laid down in Article 8(1) be made available by Member States, even if not currently available, and accordingly exchanged;

(b)

the lists of categories and items laid down in Articles 8(1) and 8(3a) be extended to include other categories and items, including royalties.

(b)

the categories of income laid down in Article 8(1) be expanded to non-financial assets such as real estate, art or jewellery and new forms to store wealth such as free ports and safe deposit boxes;

(ba)

the lists of items laid down in Article 8(3a) be extended to include the ultimate beneficial ownership data and to tackle circumvention through second or multiple tax residencies;

(bb)

Member States be generally allowed to use the information received for other purposes than those referred to in Article 16(1);

(bc)

effective use of the data received be correctly evaluated.’

(a)

be present in the offices where the administrative authorities of the requested Member State carry out their duties;

(a)

be present in the offices where the administrative authorities of the requested Member State carry out their duties;

(b)

be present during administrative enquiries carried out in the territory of the requested Member State;

(b)

be present during administrative enquiries carried out in the territory of the requested Member State;

(c)

participate in the administrative enquiries carried out by the requested Member State through the use of electronic means of communication, where appropriate.

(c)

participate in the administrative enquiries carried out by the requested Member State through the use of electronic means of communication, where appropriate.

(ba)

Paragraph 4 is deleted.

(13a)

(17a)

(17b)

(20a)

3a.

4a.

(b)

the Financial Account Identifier, insofar as it is available to the Reporting Platform Operator and the competent authority of the Member State where the Reportable Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;

(b)

the Financial Account Identifier, as collected by the Reporting Platform Operator and insofar as the competent authority of the Member State where the Reportable Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;

(b)

the Financial Account Identifier, insofar as it is available to the Reporting Platform Operator and the competent authority of the Member State where the Reportable Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;

(b)

the Financial Account Identifier, as collected by the Reporting Platform Operator and insofar as the competent authority of the Member State where the Reportable Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;

Fa.