EU on administrative cooperation in the field of taxation - Main contents

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dossier	COM(2024)497 - Amendment of Directive 2011/16/EU on administrative cooperation in the field of taxation.
document	COM(2024)497
date	October 28, 2024

Article 1

Council Directive 2011/16/EU is amended as follows:

(1) in Article 3, point (9) is amended as follows:

(a) the first subparagraph, is amended as follows:

(a) point (a) is replaced by the following:

‘(a) for the purposes of Article 8(1) and Articles 8a to 8ae, the systematic communication of predefined information to another Member State, without prior request, at pre-established regular intervals. For the purposes of Article 8(1), reference to available information relates to information in the tax files of the Member State communicating the information, which is retrievable in accordance with the procedures for gathering and processing information in that Member State;’;

(b) point (c) is replaced by the following:

‘(c) for the purposes of provisions of this Directive other than Article 8(1) and (3a) and Articles 8a to 8ae, the systematic communication of predefined information provided in the first subparagraph, points (a) and (b), of this point.’;

(b) the second subparagraph is replaced by the following:

‘In the context of this Article, Articles 8(3a), 8(7a), 21(2) of and Annex IV to this Directive, any capitalised term shall have the meaning that it has under the corresponding definitions set out in Annex I to this Directive. In the context of Article 21(5) and Article 25(3) and (4) of this Directive, any capitalised term shall have the meaning that it has under the corresponding definitions set out in Annex I, V or VI to this Directive. In the context of Article 8aa of and Annex III to this Directive, any capitalised term shall have the meaning that it has under the corresponding definitions set out in Annex III to this Directive. In the context of Article 8ac of and Annex V to this Directive, any capitalised term shall have the meaning that it has under the corresponding definitions set out in Annex V to this Directive. In the context of Article 8ad and Annex VI to this Directive, any capitalised term shall have the meaning that it has under the corresponding definitions set out in Annex VI to this Directive. In the context of Articles 8ae, 9a of and Annex VII to this Directive any term shall have the same meaning as defined in Article 3, Article 9(2) point (a), Article 16 (4), (6), (8) and (11), Article 17(1), Article 21(5), Article 22(1), Article 24 (4) and (6), Article 26(2), Article 27 (3), (4), and (5), Article 28(1), Article 30(2), Article 31 (1), Article 32, Article 33(1), Article 35(1), Article 36(1), Article 37(1), Article 39(1), Article 42(1), Article 44(1), Article 47(1) and Article 49(3) of Council Directive (EU) 2022/2523*. Furthermore, any capitalised term shall have the meaning defined in Section I of Annex VII to this Directive.

* Council Directive (EU) 2022/2523 of 15 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (OL L 328, 22.12.2022, p.1, ELI: http://data.europa.eu/eli/dir/2022/2523/oj).’;

(2) the following article is added:

‘Article 8ae
Exchange of information with respect to Top-up tax information returns under Article 44 of Council Directive (EU) 2022/2523

1. Each Member State shall take the necessary measures to require the ultimate parent entity or designated filing entity, as referred to in Article 44(3), points (a) and (b), of Council Directive (EU) 2022/2523, of an MNE group that is located in its territory in accordance with Article 4 of Council Directive (EU) 2022/2523, to file the Top-up tax information return using the standard template provided for in Section III of Annex VII to this Directive and within the deadlines set in Articles 44(7) and 51 of Council Directive (EU) 2022/2523.

2. The competent authority of a Member State which has received the Top-up tax information return pursuant to paragraph 1 shall communicate, by means of automatic exchange and in accordance with the following dissemination approach:

(a) The General section of the Top-up tax information return, to the Implementing Member State where the ultimate parent entity or constituent entities of the MNE are located;

(b) The General section of the Top-up tax information return, with the exception of the high-level summary information in Section 1.4 thereof, to the qualified domestic top-up tax (QDTT)-only Member States:

(i) where constituent entities of the MNE are located;

(ii) where a joint venture or a member of a joint venture group of the MNE is located if the QDTT is imposed on joint ventures in the jurisdiction;

(iii) in situations where the QDTT is imposed on a stateless constituent entity of the MNE in the jurisdiction;

(c) One or more Jurisdictional Sections of the Top-up tax information return, to Member States that have taxing rights under Council Directive (EU) 2022/2523 in respect of the Member States to which such Jurisdictional Sections relate.

Notwithstanding the first subparagraph, UTPR jurisdictions with a UTPR percentage of zero shall only be provided with the portion of the Top-up tax information return that contains information on the attribution of Top-up tax under the UTPR in respect of that jurisdiction, such information being consistent with an excerpt of Section 3.4.3 of the Top-up tax information return, and the Implementing Member State in which the ultimate parent entity is located shall be provided with all Jurisdictional sections.

3. The competent authority of a Member State shall exchange the Top-up tax information return received pursuant to paragraph 1 as soon as possible and in any case no later than three months after the filing deadline for that Reporting fiscal year.

4. The competent authority of a Member State shall exchange the Top-up tax information return received after the filing deadline no later than three months following the date on which it is received.

5. To facilitate the exchange of information referred to in paragraph 2 of this Article, the Commission shall adopt, by means of implementing acts, the necessary practical arrangements, as part of the procedure for establishing the standard computerised form provided for in Article 20(5). Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

6. The Commission shall not have access to the information referred to in paragraph 2, points (a) to (c).

7. The communication and exchange referred to in paragraph 2, 3 and 4 of this Article shall take place using the standard computerised form referred to in Article 20(5).’

(3) Article 8b is replaced by the following:

‘Article 8b

‘Member States shall provide the Commission on an annual basis with statistics on the volume of automatic exchanges under Articles 8(1), 8(3a), 8aa, 8ac and 8ae and with information on the administrative and other relevant costs and benefits relating to exchanges that have taken place and any potential changes, for both tax administrations and third parties.’

(4) The following article is added:

‘Article 9a
Collaboration on Corrections, Compliance and Enforcement with respect to Top-up tax information returns

1. Where the competent authority of a Member State has reason to believe, that the information, in a Top-up tax information return regarding an ultimate parent entity or designated filing entity that is located in the jurisdiction of the other Member State, requires corrections, it shall notify the competent authority of the other Member State. If the notified competent authority agrees that the information in the Top-up tax information return requires corrections, it shall take, without delay, appropriate measures to obtain such corrected information from the concerned ultimate parent entity or designated filing entity. It shall exchange, without delay, the corrected information with all competent authorities for which such information is subject to exchange in accordance with this Directive.

2. When the competent authority of a Member State has received a notification from one or more constituent entities located in its Member State that the Top-up tax information return for such constituent entities was to be filed by the ultimate parent entity or designated filing entity located in another Member state, but the information included in the Top-up tax information return was not exchanged withing the deadlines specified in it Article 8ae(3), it shall notify the other competent authority that the information has not been received.. The notified competent authority shall, without delay, determine the reason for not exchanging the concerned Top-up tax information return and shall inform the competent authority within one month of the receipt of the notification, including the expected exchange date for the Top-up tax information return where relevant.’

(5) in Article 18, paragraph 4 is replaced by the following:

‘4. The competent authority of each Member State shall put in place an effective mechanism to ensure the use of information acquired through the reporting or the exchange of information under Articles 8 to 8ae.’;

(6) in Article 20, paragraph 5 is replaced by the following:

‘5. The Commission shall adopt implementing acts laying down standard computerised forms, including the linguistic arrangements, in the following cases:

(a) for the automatic exchange of information on advance cross-border rulings and advance pricing arrangements pursuant to Article 8a before 1 January 2017;

(b) for the automatic exchange of information on reportable cross-border arrangements pursuant to Article 8ab before 30 June 2019;

(c) for the automatic exchange of information on Reportable Crypto-Assets pursuant to Article 8ad before 30 June 2025:

(d) for automatic exchange of Top-up tax information return pursuant to Article 8ae before 1 January 2026.

Those standard computerised forms shall not exceed the components for the exchange of information listed in Articles 8a(6), 8ab(14), 8ad(3), and 8ae(2) and such other related fields which are linked to those components which are necessary to achieve the objectives of Articles 8a, 8ab, 8ad and 8ae, respectively.

The linguistic arrangements referred to in the first subparagraph of this paragraph shall not preclude Member States from communicating the information referred to in Articles 8a and 8ab in any of the official languages of the Union. However, those linguistic arrangements may provide that the key elements of such information shall also be sent in another official language of the Union.

The implementing acts referred to in this paragraph shall be adopted in accordance with the procedure referred to in Article 26(2).’;

(7) in Article 21, the following paragraph is added:

‘9. The Commission is empowered to adopt delegated acts, in accordance with Article 26a, to amend Section III of Annex VII to align it with any update of the standard Top-up tax information return laid down in the OECD/G20 Inclusive Framework agreement on Base Erosion and Profit Shifting (BEPS)*.

*OECD (2023), Tax Challenges Arising from the Digitalisation of the Economy – GloBE Information Return (Pillar Two), OECD Publishing, Paris, https://doi.org/10.1787/91a49ec3-en.’

(8) in Article 22, paragraphs 3 and 4 are replaced by the following:

‘3. Member States shall retain the records of the information received through the automatic exchange of information pursuant to Articles 8 to 8ae for no longer than necessary but in any event not less than five years from its date of receipt to achieve the purposes of this Directive.

4. Member States shall endeavour to ensure that a reporting entity is allowed to obtain confirmation by electronic means of the validity of the information on the TIN of any taxpayer subject to the exchange of information under Articles 8 to 8ae. The confirmation of the information on the TIN may be requested only for the purposes of validation of the correctness of the data referred to in Articles 8(1), 8(3a), 8a(6), 8aa(3), 8ab(14), 8ac(2), 8ad(3) and 8ae(2).’;

(9) Article 25a is replaced by the following:

‘Article 25a
Penalties

Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and concerning Articles 8aa to 8ae, and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.’;

(10) the following article is added:

‘Article 26a
Exercise of the delegation

1. The power to adopt the delegated act referred to in Article 21(9) shall be conferred on the Commission for an indeterminate period of time from the date of entry into force of this Directive subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 21(9) shall be conferred on the Commission for an indeterminate period of time from the date of entry into force of this Directive.

3. The delegation of power referred to in Article 21(9) may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting the delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Inter-institutional Agreement on better law making of 13 April 2016.

5. As soon as it adopts the delegated act, the Commission shall notify it to the Council.

6. The delegated act adopted pursuant to Article 21(9) shall enter into force only if no objection is expressed by the Council within a period of two months of notification of that act to the Council or if, before the expiry of that period, the Council has informed the Commission that it will not object. That period shall be extended by two months at the initiative of the Council.’

(11) the following article is added:

‘Article 27c
First Reporting fiscal year and exchange of the information referred to in Article 8ae for the first time

1. The first Reporting fiscal year for which the information shall be communicated is the relevant calendar year or other appropriate reporting period as from 1 January 2024.

2. For the Member States that have elected not to apply the IIR and the UTPR pursuant to Article 50(1) of Council Directive (EU) 2022/2523, the first Reporting fiscal year shall be the first fiscal year following the end of that election.

3. When exchanging the information referred in Article 8ae for the first time, the competent authority of the Member State may exchange that information until no later than six months after the deadlines provided for in that Article.’

(12) the text set out in the Annex to this Directive is added as Annex VII.

Article 2

1. Member States shall adopt and publish, by 31 December 2025 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive.

2. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

3. Notwithstanding paragraph 1, first subparagraph, the Member States that have elected not to apply the IIR and the UTPR pursuant to Article 50(1) of Council Directive (EU) 2022/2523 shall adopt and publish the laws regulations and administrative provisions necessary to comply with this Directive at the latest the day before the end of that election.

4. Member States shall communicate to the Commission, without delay, the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.