28 Amendments of Eva JOLY related to 2018/0072(CNS)
Amendment 20 #
Proposal for a directive
Recital 1
Recital 1
(1) Rapid transformation of the global economy as a result of digitalisation is putting new pressures on corporate tax systems both at Union level and internationally, and calling into question the ability to establish where digital companies should pay their taxes and how much they should pay. Although the need to adapt corporate tax rules to the digital economy is recognised at international level by bodies such as the G20, reaching an agreement at global level is likely to be challenging and not taking place in a near future.
Amendment 22 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1a) Too often, multinational companies that heavily rely upon digital activities make arrangements to transfer their profits to tax havens or to countries with a lower corporate tax rate, which allows them to pay less or no taxes. The concept of digital significant presence will provide a precise and binding definition of the criteria according to which a multinational company is deemed to have a permanent establishment in a given country. This will force digital companies to pay their taxes where their real economic activity occurs.
Amendment 28 #
Proposal for a directive
Recital 2
Recital 2
(2) The Base Erosion and Profit Shifting (BEPS) Action 1 report on "Addressing the Tax Challenges of the Digital Economy" released by the OECD in October 2015 set out various different approaches for taxing the digital economy which were further examined in the OECD "Tax challenges Arising from Digitalisation – Interim Report 2018". As the digital transformation of the economy accelerates there is a growing and urgent need to find solutions to ensure a fair and effective taxation of digital companies. The European Union should not wait for the results of the OECD works to tackle this issue, as progress at international level to reach a consensus can be considered too slow. The Union should set the trend by already now adapting its corporate taxation system to the digital economy and then advocate for such measures to be adopted also at a global level.
Amendment 35 #
Proposal for a directive
Recital 5
Recital 5
(5) However, the rules should not apply to entities that are tax resident in a non-Union jurisdiction with which the Member State of the significant digital presence has a Double Tax Convention in force, unless the Convention includes provisions on a significant digital presence which creates similar rights and obligations in relation to the non-Union jurisdiction as are created by this Directive. This is to avoid any conflict with Double Tax Conventions with non-Union jurisdictions, given that non-Union jurisdictions are not generally bound by Union law. However, Member States are strongly encouraged to mandate the Commission to negotiate on their behalf a modification of these Double Tax Conventions, in order to uniformly adapt the definition of permanent establishment and the creation of a taxable nexus for a significant digital presence.
Amendment 37 #
Proposal for a directive
Recital 6
Recital 6
(6) In order to provide for a robust definition of a taxable nexus of a digital business in a Member State it is necessary that such a definition is based on the revenues generated from the supply of digital services, the number of users or the number of business contracts for digital services. The applicable thresholds should reflect the significance of the digital presence for different types of business models and accommodate the different degrees of contribution to the process of value creation. Furthermore, they should ensure a compatible treatment in different Member States, irrespective of their size, and leave out trivial cases. The sale of goods or services which is facilitated by using the internet or an electronic network should not be regarded as a digital service within the meaning of this DirectiveIn its review, the Commission should assess the appropriateness of the criteria set out in this Directive, in particular with regards to the pursuit of the latter objectives, and whether absolute figures should be complemented by relative numbers (in percentages).
Amendment 39 #
Proposal for a directive
Recital 7
Recital 7
(7) To enable an enterprise's significant digital presence to be taxed in another jurisdiction in accordance with the domestic law of that jurisdiction, it is necessary to establish the principles of attributing profits to that significant digital presence. The rules should be built on the current principles for profit attribution and be based on a functional analysis of the functions performed, assets used and risks assumed by a significant digital presence in performing its economically significant activities through a digital interface. Particular attention should be paid to the fact that a significant part of the value of a digital business is created where the users are based and where the data related to the users is collected and processed as well as to where the digital services are provided. Since economically significant activities performed by a significant digital presence contribute in a unique manner to value creation in digital business models, the profit split method should normally be used for arriving at a fair allocation of profits to the significant digital presence. However, this should not prevent a taxpayer from using an alternative method in line with internationally accepted principles if the taxpayer can prove that, based on the outcome of the functional analysis, an alternative method in line with internationally accepted principles is more appropriate. It is also essential that the profit splitting factors bear a strong correlation with the creation of value.
Amendment 45 #
Proposal for a directive
Recital 8
Recital 8
(8) A key objective of this Directive is to improve the resilience of the internal market as a whole in order to address the challenges of taxation of the digitalised economy. This objective cannot be sufficiently achieved by the Member States acting individually because digital businesses are able to operate cross-border without having any or having only a small physical presence in a jurisdiction and rules are therefore needed to ensure that they pay taxes in the jurisdictions where they make profits. Given this cross- border dimension an initiative at Union level adds value in comparison with what a multitude of national measures could attain. A common initiative across the internal market is required to ensure a harmonised application of the rules on a significant digital presence within the Union. Unilateral and divergent approaches by each Member State could be ineffective and fragment the Single Market by creating national policy clashes, distortions and tax obstacles for businesses in the Union. Since the objectives of this Directive can 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 those objectives.
Amendment 46 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) If this proposal does not result in an agreement and therefore fails to eliminate distortions of competition and tax obstacles for businesses in the Union, the European Commission should issue a new proposal based on Article 116 of the Treaty on the Functioning of the European Union, whereby the European Parliament and the Council act in accordance with the ordinary legislative procedure to issue the necessary directives.
Amendment 50 #
Proposal for a directive
Recital 9
Recital 9
(9) It is necessary that any processing of personal data carried out in the context of this Directive, should be conducted in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council17 , including obligations to provide appropriate technical and organisational measures to comply with the obligations imposed by that Regulation, in particular those relating to the lawfulness of the processing, the security of the processing activities, the provision of information and the rights of data subjects, data protection by design and by default, with due regard to the principles of necessity and proportionality. Whenever possible, personal data should be rendered anonymous. _________________ 17 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p.1).
Amendment 54 #
Proposal for a directive
Recital 10
Recital 10
(10) The Commission should evaluate the implementation of this Directive fivthree years after its entry into force and report to the European Parliament and to the Council thereon. Member States should communicate to the Commission all information necessary for this evaluation. An advisory DigiTax Committee should be established to examine questions on the application of the Directive. This Committee should publish its agendas, the minutes of its meetings and all relevant documents. Its participants should be cleared of any conflict of interest before their selection.
Amendment 58 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) In order to ensure legal certainty and to avoid situations of double taxation or double non-taxation as well as to limit tax avoidance opportunities, it is essential that Member States set out similar tax rules as regards to third countries, in particular when it comes to the definition of a significant digital presence. Therefore, Member States should authorise the Commission to negotiate on their behalf in order to either revise or adopt tax treaties with third countries in accordance with the rules set out in this Directive. It will allow to have a comprehensive global taxation environment for the digital economy.
Amendment 61 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12b) In order to create a level playing field and to eliminate tax competition and the resulting race to the bottom as regards corporate taxation levels, a minimum effective corporate tax rate should be proposed by the Commission three years after the date of implementation of the present Directive. The objective is to avoid transferring unfair competition on the tax base to unfair competition on the tax rates. The proposal of the Commission should set a minimum corporate tax rate of at least 20%.
Amendment 69 #
Proposal for a directive
Article 3 – paragraph 1 – point 5 – paragraph 2
Article 3 – paragraph 1 – point 5 – paragraph 2
Digital services shall not include the services listed in Annex III or the sale of goods or other services which is facilitated by using the internet or an electronic network.
Amendment 73 #
Proposal for a directive
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(a) the proportion of total revenues obtained intotal amount of revenues of thate tax period andpayer resulting from the supply of those digital services to users located in that Member State in that tax period exceeds EUR 75 000 000;
Amendment 80 #
Proposal for a directive
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3a. The Commission shall be empowered to adopt delegated acts in accordance with Article 6a in view of amending this Directive by adjusting the factors set out in points (a), (b), (c) of this paragraph, notably on the basis of its assessment report and of progress in international agreements.
Amendment 82 #
Proposal for a directive
Article 4 – paragraph 7
Article 4 – paragraph 7
Amendment 86 #
Proposal for a directive
Article 4 – paragraph 7 a (new)
Article 4 – paragraph 7 a (new)
7a. A taxpayer shall be required to disclose to the tax authorities all information relevant to the determination of significant digital presence in accordance with this Article.
Amendment 91 #
Proposal for a directive
Article 5 – paragraph 5 – point a
Article 5 – paragraph 5 – point a
(a) the collection, storage, processing, analysis, exploitation, transmission, deployment and sale of user-level data;
Amendment 93 #
Proposal for a directive
Article 5 – paragraph 6
Article 5 – paragraph 6
6. In determining the attributable profits under paragraphs 1 to 4, taxpayers shall use the profit split method unless the taxpayer proves that an alternative method based on internationally accepted principles is more appropriate having regard to the results of the functional analysis. The splitting factors may include expenses incurred for research, development and marketing as well as the number of users and data collected per Member State.
Amendment 100 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. The Commission shall evaluate the implementation of this Directive five years after its entry into forree years after...[the date of entry into force of this Directive], the Commission shall conduct an assessment of the application of this Directive and present a report to the European Parliament and the Council, accompanied, if appropriate, by proposals for its review. The report shall assess, in particular, the implementation of the significant digital presence rules in different Member States, the number and type of companies covered by the definition of significant digital presence, and report to the Council thereons well as the appropriateness of the criteria set out in Article 4 and whether or not absolute figures should be complemented by percentages.
Amendment 104 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6a Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 4 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 4 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. As soon as it adopts a delegated act, the Commission shall notify it to the Council. 5. A delegated act adopted pursuant to Article 4 shall enter into force only if no objection has been 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.
Amendment 106 #
Proposal for a directive
Article 6 b (new)
Article 6 b (new)
Article 6b Informing the European Parliament The European Parliament shall be informed of the adoption of delegated acts by the Commission, of any objection formulated to them, and of the revocation of that delegation of powers by the Council.
Amendment 108 #
Proposal for a directive
Article 6 c (new)
Article 6 c (new)
Article 6c Mandate to the European Commission to negotiate tax treaties with third countries Member States shall provide a delegation of powers to the Commission to negotiate on their behalf the revision or adoption of tax treaties with third countries in accordance with the rules set out in this Directive, in particular as regards to the inclusion of the definition of a significant digital presence for tax purposes.
Amendment 109 #
Proposal for a directive
Article 6 d (new)
Article 6 d (new)
Amendment 111 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. The DigiTax Committee shall consist of representatives of the Member States and of the Commission. The chair of the Committee shall be a representative of the Commission. Secretarial services for the Committee shall be provided by the Commission. The European Parliament shall be represented with an observer.
Amendment 115 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. The DigiTax Committee shall examine questions on the application of this Directive, as raised by the chair of the Committee, whether on the chair's own initiative or at the request of the representative of a Member State, and shall inform the European Parliament and the Commission of its conclusions.
Amendment 117 #
Proposal for a directive
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4a. The DigiTax Committee shall publish the agendas and minutes of its meetings, as well as all relevant documents.
Amendment 119 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
The data that may be collected from the users for the purposes of applying this Directive shall be limited to data indicating the Member State in which the users are located, without allowing for identification of the user. Any processing of personal data carried out for the purposes of applying this Directive shall fully comply with Regulation (EU) 2016/679.