21 Amendments of Manon AUBRY related to 2021/0434(CNS)
Amendment 36 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) This Directive should be implemented consistently with other areas of the EU acquis. The same artificial constructions used for the purpose of obtaining a tax advantage can also be relied upon to minimise or evade social security and cross-border labour law obligations. In particular, EU posting and social security rules require substance and evidence of habitual work in the Member State of alleged establishment for an undertaking to enjoy the benefits of free provision of services.
Amendment 49 #
Proposal for a directive
Recital 6
Recital 6
Amendment 61 #
Proposal for a directive
Recital 13
Recital 13
(13) To ensure effectiveness of the proposed framework, it is necessary to establish appropriate tax consequences for undertakings that do not have minimal substance for tax purposes. Undertakings that have crossed the gateway criterion and are presumed to be lacking substance for tax purposes while, additionally, have not provided evidence to the contrary or evidence that they do not serve the objective of obtaining a tax advantage, should not be allowed to benefit from the provisions of agreements and conventions that provide for the elimination of double taxation of income, and where applicable, capital, to which the Member State of their tax residence is a party and from any other agreements, including provisions in international agreements for the promotion and protection of investments, with equivalent purpose or effect. Such undertakings should not be allowed to benefit from Council Directive 2011/96/EU14 and Council Directive 2003/49/EC15. To this effect, those undertakings should not be entitled to a certificate of tax residence to the extent that this serves to obtain those benefits. The Member State where the undertaking is resident for tax purposes should therefore deny to issue a certificate of tax residence. Alternatively, that Member State should be able to issue such certificate while indicating, by means of a warning, that it should not be used by the undertaking to obtain tax benefits as above. This denial of a certificate of tax residence, or alternatively the issue of a special certificate of tax residence, should not set aside the national rules of the Member State of the undertaking with regard to the tax residence and relevant obligations linked thereto. It would rather serve to communicate to other Member States, and third countries, that no relief or refund should be granted with regard to transactions involving this undertaking based on any treaty with the Member State of the undertaking or Union directives, if applicablbe denied the certificate of tax residence from the Member State where the undertaking is residence. __________________ 14 Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ L 345, 29.12.2011, p. 8). 15 Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ L 157, 26.6.2003, p. 49).
Amendment 64 #
Proposal for a directive
Recital 13
Recital 13
(13) To ensure effectiveness of the proposed framework, it is necessary to establish appropriate tax consequences for undertakings that do not have minimal substance for tax purposes. Undertakings that have crossed the gateway criterion and are presumed to be lacking substance for tax purposes while, additionally, have not provided evidence to the contrary or evidence that they do not serve the objective of obtaining a tax advantage, should not be allowed to benefit from the provisions of agreements and conventions that provide for the elimination of double taxation of income, and where applicable, capital, to which the Member State of their tax residence is a party and from any other agreements, including provisions in international agreements for the promotion and protection of investments, with equivalent purpose or effect. Such undertakings should not be allowed to benefit from Council Directive 2011/96/EU14 and Council Directive 2003/49/EC15 . To this effect, those undertakings should not be entitled to a certificate of tax residence to the extent that this serves to obtain those benefits. The Member State where the undertaking is resident for tax purposes should therefore deny to issue a certificate of tax residence. Alternatively, that Member State should be able to issue such certificate while indicating, by means of a warning, that it should not be used by the undertaking to obtain tax benefits as above or to participate in public tenders in the Member State. This denial of a certificate of tax residence, or alternatively the issue of a special certificate of tax residence, should not set aside the national rules of the Member State of the undertaking with regard to the tax residence and relevant obligations linked thereto. It would rather serve to communicate to other Member States, and third countries, that no relief or refund should be granted with regard to transactions involving this undertaking based on any treaty with the Member State of the undertaking or Union directives, if applicable. __________________ 14 Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ L 345, 29.12.2011, p. 8). 15 Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ L 157, 26.6.2003, p. 49).
Amendment 67 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14a) With a view to ensure an effective implementation of the EU acquis and to help the fight against unfair terms and conditions of employment, the competent authorities performing labour inspections and social security assessment should have timely access to the information pointing at possible lack of substance.
Amendment 77 #
Proposal for a directive
Article 3 – paragraph 1 – point 5
Article 3 – paragraph 1 – point 5
(5) ‘beneficial owner’ means beneficial owner as defined in Article 3, point (6), of Directive (EU) 2015/849 of the European Parliament and of the Councilfor the purpose of this Directive means any natural person owning directly or indirectly at least 5% of the share of the undertaking;
Amendment 98 #
Proposal for a directive
Article 6 – paragraph 1 – point c – paragraph 1
Article 6 – paragraph 1 – point c – paragraph 1
An undertaking which holds assets that can generate income falling within the scope of Article 4, points (e) and (f), shall also be deemed to meet the criterion set out in point (a) of the first subparagraph, irrespective of whether income from these assets has accrued to the undertaking in the preceding two tax years, if the book value of these assets is more than 750% of the total book value of the undertaking’s assets.
Amendment 100 #
Proposal for a directive
Article 6 – paragraph 1 – point c – paragraph 2
Article 6 – paragraph 1 – point c – paragraph 2
An undertaking which holds assets that can generate income falling within the scope of Article 4, point (c), shall also be deemed to meet the criterion set out in point (a) of the first subparagraph, irrespective of whether income from these assets has accrued to the undertaking in the preceding two tax years, if the book value of these assets is more than 750% of the total book value of the assets of the undertaking.
Amendment 103 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 111 #
Proposal for a directive
Article 6 – paragraph 2 – point e
Article 6 – paragraph 2 – point e
Amendment 117 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1
Article 6 – paragraph 2 – subparagraph 1
Amendment 127 #
Proposal for a directive
Article 7 – paragraph 1 – point b a (new)
Article 7 – paragraph 1 – point b a (new)
(ba) the majority of the full-time equivalent employees of the undertaking have their habitual place of work as defined by Regulation (EC) No 593/2008 in the Member State of the undertaking, and such employees are qualified to carry out the activities that generate relevant income for the undertaking;
Amendment 133 #
Proposal for a directive
Article 7 – paragraph 1 – point c – point ii
Article 7 – paragraph 1 – point c – point ii
Amendment 136 #
Proposal for a directive
Article 7 – paragraph 1 – point c – point ii a (new)
Article 7 – paragraph 1 – point c – point ii a (new)
(iia) the profitability per employee and per assets, the productivity per employee and the turnover on assets are not exceeding three times the average of the sector in the EU. The European Commission shall estimate this average based on data provided by the undertakings the previous year.
Amendment 142 #
Proposal for a directive
Article 7 – paragraph 2 – point g a (new)
Article 7 – paragraph 2 – point g a (new)
(ga) profitability per employee and per assets, the productivity per employee and the turnover on assets;
Amendment 144 #
Proposal for a directive
Article 7 – paragraph 2 – point g b (new)
Article 7 – paragraph 2 – point g b (new)
(gb) entire entity structure from assets held to ultimate beneficial owners as well as a justification for this structure;
Amendment 167 #
Proposal for a directive
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
Amendment 169 #
Proposal for a directive
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
(b) grant a certificate of tax residence which prescribes that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and where applicable, capital, and of international agreements with a similar purpose or effect and of Articles 4, 5 and 6 of Directive 2011/96/EU and Article 1 of Directive 2003/49/EC and cannot participate in any public tenders in the Member State.
Amendment 173 #
Proposal for a directive
Article 13 – paragraph 1 – point 2
Article 13 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ad – paragraph 2 – subparagraph 1 a (new)
Article 8ad – paragraph 2 – subparagraph 1 a (new)
Such information may also be used for the assessment and enforcement of other taxes and duties covered by Article 2 of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures, or for the assessment and enforcement of compulsory social security contributions and cross-border labour law obligations.
Amendment 179 #
Proposal for a directive
Article 13 – paragraph 1 – point 4
Article 13 – paragraph 1 – point 4
Directive 2011/16/EU
Article 21 – paragraph 5 – subparagraph 4 a (new)
Article 21 – paragraph 5 – subparagraph 4 a (new)
The competent authorities performing labour inspections and social security assessment shall have access to the information recorded under Article 8ad (1), (2) and (3) when this information is relevant for the assessment and enforcement of compulsory social security contributions and cross-border labour law obligations.
Amendment 193 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. By 31 December 2028Every year from the entry into force of this Directive, the Commission shall present a report to the European Parliament and the Council on the implementation of this Directive.