2023/0187(CNS) | [ParlTrack]

Proposal for a directive
Article 11 – paragraph 1 – introductory part

1. Member States shall take the necessary measures to ensure that the certified financial intermediary requesting relief under Article 12 and/or 13 on behalf of a registered owner obtains from such registered owner a declaration that the registered owner:

Amendment 101 #

Proposal for a directive
Article 11 – paragraph 1 – point a

(a) is the beneficial owner of the dividend or interest as defined under the national legislation of the source Member State or a double tax treaty; and

Amendment 102 #

Niels FUGLSANG, Aurore LALUCQ, Jonás FERNÁNDEZ

Proposal for a directive
Article 11 – paragraph 2 – introductory part

2. Member States shall take the necessary measures to ensure certified financial intermediaries requesting relief under Article 12 and/or 13 on behalf of a registered owner to verify:

Amendment 103 #

Proposal for a directive
Article 11 – paragraph 2 – point a a (new)

(a a) the risks associated with the misuse by the registered owners of an eTRC issued by Member States or third countries which offer residence and citizenship by investment schemes;

Amendment 104 #

Proposal for a directive
Article 11 – paragraph 2 – point a a (new)

(a a) the risks associated with the misuse by the registered owners of an eTRC issued by Member States or third countries which offer residence and citizenship by investment schemes;

Amendment 105 #

Proposal for a directive
Article 11 – paragraph 2 – point d

(d) in case of a dividend payment and based on the information available to the certified financial intermediary, the possible existence of any financial arrangement that has not been settled, expired or otherwise terminated at the ex- dividend date~~, unless the dividend paid to the registered owner for each group of identical shares held does not exceed EUR 1000~~.

Amendment 106 #

Proposal for a directive
Article 11 – paragraph 2 – point d

(d) in case of a dividend payment and based on the information available to the certified financial intermediary, the possible existence of any financial arrangement that has not been settled, expired or otherwise terminated at the ex- dividend date, unless the dividend paid to the registered owner for each group of identical shares held does not exceed EUR 13000.

Amendment 107 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ, Rasmus ANDRESEN

Proposal for a directive
Article 11 – paragraph 2 a (new)

2 a. Member States may allow to obtain the declaration according to paragraph 1 and to carry out the verifications according to paragraph 2 on an annual basis.

Amendment 108 #

Proposal for a directive
Article 11 – paragraph 3 a (new)

3 a. By [2 years from the date of entry into force of this Directive], the Commission shall adopt recommendations for the fulfilment of the requirements laid down in paragraph 2.

Amendment 109 #

Proposal for a directive
Article 12

Member States may allow certified financial intermediaries maintaining a registered owner’s investment account to request relief at source on behalf of a registered owner in accordance with Article 10 by providing to the withholding tax agent the following information: (a) the tax residence of the registered owner; and (b) the applicable withholding tax rate on the payment in accordance with a double tax treaty or specific national legislation.Article 12 deleted Relief at source system

Amendment 110 #

Proposal for a directive
Article 13 – paragraph 1

1. Member States may allow certified financial intermediaries maintaining a registered owner’s investment account to request a quick refund of the excess withholding tax, on behalf of such registered owner in accordance with Article 10 if the information referred to in paragraph 3 of this Article is provided ~~as soon as possible after the payment date and at the latest~~ within 25 calendar days from the date of payment of the dividend or interest.

Amendment 111 #

Proposal for a directive
Article 13 – paragraph 1

1. Member States may allow certified financial intermediaries maintaining a registered owner’s investment account to request a quick refund of the excess withholding tax, on behalf of such registered owner in accordance with Article 10 if the information referred to in paragraph 3 of this Article is provided as soon as possible after the payment date and at the latest within 250 calendar days from the date of payment of the dividend or interest.

Amendment 112 #

Proposal for a directive
Article 13 – paragraph 1

1. Member States may allow certified financial intermediaries maintaining a registered owner’s investment account to request a quick refund of the excess withholding tax, on behalf of such registered owner in accordance with Article 10 if the information referred to in paragraph 3 of this Article is provided as soon as possible after the payment date and at the latest within 25 calendar days from the date of payment of the dividend or , interest or royalties.

Amendment 113 #

Proposal for a directive
Article 13 – paragraph 2

2. Member States shall process a refund request made in accordance with paragraph 1 within 2540 calendar days from the date of such request or from the date reporting obligations under this Directive have been met by all relevant certified financial intermediaries, whichever is the latest. Member States shall apply interest in accordance with Article 14 on the amount of such refund for each day of delay after the 2540th day.

Amendment 114 #

Proposal for a directive
Article 13 – paragraph 2

2. Member States shall process a refund request made in accordance with paragraph 1 within 250 calendar days from the date of such request or from the date reporting obligations under this Directive have been met by all relevant certified financial intermediaries, whichever is the latest. Member States shall apply interest in accordance with Article 14 on the amount of such refund for each day of delay after the 250th day.

Amendment 115 #

Proposal for a directive
Article 13 – paragraph 2

2. Member States shall process a refund request made in accordance with paragraph 1 within 25 calendar days from the date of such request or from the date reporting obligations under this Directive have been met by all relevant certified financial intermediaries, whichever is the latest. Member States shall apply interest in accordance with Article 14 on the amount of such refund for each day of delay after the 25th day, unless the Member State has reasonable doubts on the legitimacy of the refund request.

Amendment 116 #

Proposal for a directive
Article 13 – paragraph 3 – point c

Amendment 117 #

(d a) any other information that is deemed relevant by the Member State to fight potential fraud.

Amendment 118 #

Proposal for a directive
Article 13 – paragraph 3 a (new)

3 a. Member States may reject a refund request if any verification procedure or tax audit, based on risk assessment criteria and according to the national legislation, is iniatiated.

Amendment 119 #

Proposal for a directive
Article 14 – paragraph 1

Member States shall, where national legislation includes such provisions, apply interest in accordance with Article 13(2) at a rate equal to the interest or equivalent charge applied by the Member State to late payments of income tax by registered owners, or, if the national legislation of the Member States does not include such provision, at the Euro short-term rate plus 50 basis points or the equivalent interest rate used by their Central Bank plus 50 basis points, if they are not part of the European Exchange Rate Mechanism.

Amendment 120 #

Proposal for a directive
Article 15 – paragraph 1

Member States shall adopt appropriate measures to ensure that where Article ~~12 and Article~~ 13 do not apply to dividends, because the conditions of this Directive are not met, a registered owner or its authorised representative requesting for refund of the excess withholding tax on such dividends provides at least the information required under Annex II, heading E, ~~unless the total dividend paid to the registered owner on the owner’s shareholding in a company does not exceed EUR 1000, and~~ unless this information has already been provided in accordance with the obligations of Article 9.

Amendment 121 #

Proposal for a directive
Article 15 – paragraph 1

Member States shall adopt appropriate measures to ensure that where Article 12 and Article 13 do not apply to dividends, because the conditions of this Directive are not met, a registered owner or its authorised representative requesting for refund of the excess withholding tax on such dividends provides at least the information required under Annex II, heading E, unless the total dividend paid to the registered owner on the owner’s shareholding in a company does not exceed EUR 13000, and unless this information has already been provided in accordance with the obligations of Article 9.

Amendment 122 #

Proposal for a directive
Article 16 – paragraph 1

1. Member States shall take appropriate measures to ensure that if a certified financial intermediary does not comply, intentionally or negligently, with its obligations under Articles 9, 10, 11~~, 12~~ and 13, the certified financial intermediary, the members of the management body and other natural persons who under national law are responsible for the non- compliance, can be held liable for all or part of the loss of withholding tax revenue incurred by the Member State in relation to a request under Article 1~~2 or 13~~3. 2. Member States shall ensure that legal persons can be held liable for the non- compliance with national provisions transposing this Directive by any person acting individually or as part of an organ of that legal person and having a leading position within the legal person. Any of the following circumstances shall indicate the leading position within the legal person: (a) power to represent the legal person (b) authority to take decisions on behalf of the legal person; (c) authority to exercise control within the legal person.

Amendment 123 #

Proposal for a directive
Article 17 – paragraph 1

1. Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that they are implemented. These penalties shall be effective, proportionate and ~~dissuasiv~~sufficiently dissuasive. 2. Member States shall ensure that the penalties that can be applied include at least the following minimum pecuniary penalties: (a) EUR 50 000 when the annual turnover of the Certified Financial Intermediary is below EUR 6 million and (b) EUR 150 000 when the turnover is EUR 6 million or above. 3. When deemed appropriate and the financial penalties are considered non- dissuasive, Member States shall establish as penalties, in extreme and repeated cases, the revoking of the business licence.

Amendment 124 #

Proposal for a directive
Article 17 a (new)

Article17a Minimum effective tax rate The Commission shall by 2026 put forward a legislative proposal to design a framework that ensures a minimum effective tax rate of 30% for intra-EU flows of dividendes, royalties and interests. This framework should incentives Member states to take appropriate measures to ensure this minimum effective tax rate.

Amendment 125 #

Proposal for a directive
Article 17 b (new)

Article17b Revision of IRD and PSD 1. The Commission shall present a revision of the Interest and Royalties Directive in order to guarantee a minimum effective tax rate and implement strong anti-abuse rules. 2. The Commission shall present a revision of the Parent-Subsidiary Directive in order to guarantee a minimum effective tax rate and implement strong anti-abuse rules.

Amendment 126 #

Rasmus ANDRESEN, Niels FUGLSANG, Aurore LALUCQ

Proposal for a directive
Article 17 c (new)

Article17c Public financial asset registry The Commission shall by 2026 put forward a legislative proposal to design a global public asset registry at the European Union level. The objective of the registry would be to record the ownership financial assets. Such a registry will be key to achieve the goals of this Directive but also to set up the minimum tax refeared in 17a.

Amendment 127 #

Proposal for a directive
Article 18 a (new)

Article 18a Monitoring and exchange in information 1. To ensure the integrety of the internal market the European Securities and Markets Authority (ESMA) and the European Banking Authority (EBA) shall regularly monotor the risk for cum-cum, cum-ex and similar schemes in the EU. 2. Member States shall introduce enhanced cooperation and mutual assistance between national competent authorities, tax authorities and other law enforcement bodies, such as the European Public Prosecutor’s Office (EPPO) to detect and prosecute withholding tax reclaim schemes.

Amendment 128 #

Proposal for a directive
Article 18 b (new)

Article 18b Evaluation of fraudulent schemes 1. A year after transposition of the Directive, the Commission shall submit a report to the European Parliament and the Council assessing whether Member States are still impacted by or prone to dividend arbitrage and dividend stripping schemes such as the Cum/Ex and Cum/Cum schemes. Such report shall be submitted every 2 years thereafter. 2. Member States shall communicate to the Commission relevant information for the purpose of paragraph 1. 3. For the purpose of paragraph 2, Member States shall consult the EBA, the ESMA, the EPPO and relevant national competent authorities. 4. If deemed necessary, the Commission shall present a legislative proposal to further clamp down on dividend arbitrage and dividend stripping schemes. The Commission shall consider introducing a common withholding tax in the EU or a proposal to tax capital gains upon disposal of shares and security lending fees equivalent to dividends.

Amendment 129 #

Niels FUGLSANG, Evelyn REGNER, Aurore LALUCQ, Pedro MARQUES, Jonás FERNÁNDEZ

Proposal for a directive
Article 19 – title

Evaluation and revison

Amendment 130 #

Proposal for a directive
Article 19 – title

EGeneral evaluation

Amendment 131 #

Niels FUGLSANG

Proposal for a directive
Article 19 – paragraph 1

1. The Commission shall examine and evaluate the functioning of this Directive, after national rules transposing the Directive come into effect, every 5 years. A report on the evaluation of the Directive and on the applicable rules to withholding taxes in the EU, including on a potential need to amend specific provisions ~~thereof~~of this Directive, will be submitted to the European Parliament and the Council by December 2031 and every 5 years.

Amendment 132 #

Proposal for a directive
Article 19 – paragraph 1

1. The Commission shall examine and evaluate the functioning of this Directive, after national rules transposing the Directive come into effect, every 5 years. A report on the evaluation of the Directive, including on a potential need to amend specific provisions thereof, will be submitted to the European Parliament and the Council by December 2031 and every 5 years. The report shall in particular assess how the procedures for withholding tax relief can be further simplified for retail investors. Where appropriate the evaluation report shall be accompanied by a legislative proposal.

Amendment 133 #

Niels FUGLSANG, Aurore LALUCQ, Jonás FERNÁNDEZ, Evelyn REGNER

Proposal for a directive
Article 19 – paragraph 1 a (new)

1 a. In the evaluation report, the Commission shall: (a) examine whether Chapter III should be mandatory applied to all Member States; (b) examine whether the relief at source system should be applied in all Member States, and introduce further measures to facilite such a system for SMEs.

Amendment 134 #

Niels FUGLSANG

Proposal for a directive
Article 19 – paragraph 1 a (new)

1 a. The report referred to in paragraph 1 shall, if applicable, be accompanied by a legislative proposal, and include an assessment on the following:

Amendment 135 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Evelyn REGNER

Proposal for a directive
Article 19 – paragraph 1 b (new)

1 b. a) the establishment of a common and standardised withholding tax framework in the EU that reduces complexity for investors, stems the practice of treaty shopping and ensures that all dividends, interest, capital gains, royalty payments, professional service payments and relevant contract payments generated in the EU are taxed at a minimum effective tax rate;

Amendment 136 #

Niels FUGLSANG, Evelyn REGNER, Aurore LALUCQ, Pedro MARQUES, Jonás FERNÁNDEZ

Proposal for a directive
Article 19 – paragraph 1 c (new)

1 c. b) an EU-wide withholding border tax to ensure that all payments generated within the Union are taxed at least once before leaving it;

Amendment 137 #

Niels FUGLSANG, Evelyn REGNER, Aurore LALUCQ, Pedro MARQUES, Jonás FERNÁNDEZ

Proposal for a directive
Article 19 – paragraph 1 d (new)

1 d. c) the enhancement of coordinated defensive measures against countries listed as non-cooperative jurisdictions for tax purposes, including withholding taxation, given the discretionary application by individual Member States of defensive measures;

Amendment 138 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ, Evelyn REGNER

Proposal for a directive
Article 19 – paragraph 1 e (new)

1 e. d) further measures required at EU level within the field of withholding taxes to combat tax fraud, tax evasion and tax avoidance, including subjecting capital gains upon disposal of shares and security lending fees to taxation equivalent to dividend to deter and mitigate dividend arbitrage;

Amendment 139 #

Proposal for a directive
Article 19 – paragraph 1 f (new)

1 f. e) The implementation of a relief at source system as the default procedural option applicable to all Member States;

Amendment 140 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ

Proposal for a directive
Article 19 – paragraph 2

2. Member States shall communicate to the Commission relevant information for the evaluation of ~~the Directive in improving withholding tax relief procedures to reduce double taxation as well as combat tax abuse~~referred to in paragraphs 1 and 1a, in accordance with paragraph 3.

Amendment 141 #

Proposal for a directive
Article 19 – paragraph 2

2. Member States shall communicate to the Commission relevant information for the evaluation of the Directive in estimations of tax revenue losses, improving withholding tax relief procedures to ~~reduce double taxation as well as~~ combat tax abuse, in accordance with paragraph 3.

Amendment 142 #

Proposal for a directive
Article 19 – paragraph 2

2. Member States shall communicate to the Commission relevant statistical information for the evaluation of the Directive in improving withholding tax relief procedures to reduce double taxation as well as combat tax abuse, in accordance with paragraph 3.

Amendment 143 #

Proposal for a directive
Article 19 – paragraph 2 a (new)

2 a. Member States shall actively assess whether the Directive has an impact on risks for tax fraud and abuse, and the impact on tax revenues.

Amendment 144 #

Proposal for a directive
Article 19 – paragraph 3

3. The Commission shall, by means of implementing acts, specify the statistical information to be provided by Member States for the purposes of evaluation and the format and the conditions of communication of that information.

Amendment 145 #

Proposal for a directive
Article 19 – paragraph 5

5. Information communicated to the Commission by a Member State under paragraph 2, as well as any report or document produced by the Commission using such information, may be transmitted to other Member States and the European Parliament. The transmitted information shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under the national law of the Member State which received it.

Amendment 146 #

Proposal for a directive
Article 19 a (new)

Article 19a Review clause Three years after the date of entry into force of this Directive, the Commission shall present a proposal for the review of this directive focusing on the following areas: a. the creation of a centralised European register for certified financial intermediaries or the interconnection of national registers; b. distrubution ledger systems or other technological tools to render the system more efficient and fraud proof through better identification of the beneficial owner; c. registered owners to benefit from this Directive; d. a common EU definition of beneficial ownership; e. digitalizing relief and refund processes, and claims; f. acceptance of electronic or digital signatures and use of e-ID to facilitate the verification process for individual investors.

Amendment 147 #

Niels FUGLSANG, Evelyn REGNER, Aurore LALUCQ, Pedro MARQUES, Jonás FERNÁNDEZ

Proposal for a directive
Article 20 – paragraph 1

1. Member States shall restrict data subject’s rights under Articles 15 to 19 of Regulation (EU) 2016/679 of the European Parliament and of the Council45 only to the extent and only as long as it is strictly necessary for their competent authorities to mitigate the risk of tax fraud, evasion or avoidance in Member States, in particular by verifying that the correct withholding tax rate is applied for the registered owner, or by verifying that the registered owner obtains the relief if so entitled in a timely manner. The rights of the data subjects shall be restored as soon as the conditions that supported the restriction cease to exist. _________________ 45 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 (OJ L 119, 4.5.2016, p. 1).

Amendment 148 #

Proposal for a directive
Article 20 – paragraph 3

3. Information, including personal data, processed in accordance with this Directive shall be retained ~~only as long a~~for no longer than is necessary to achieve the purposes of this Directive, and in any case in accordance with each data controller’s domestic rules on statute of limitations~~, but in any case no longer than 10 years~~.

Amendment 149 #

Proposal for a directive
Article 20 – paragraph 3

3. Information, including personal data, processed in accordance with this Directive shall be retained only as long as strictly necessary to achieve the purposes of this Directive, in accordance with each data controller’s domestic rules on statute of limitations, but in any case no longer than 105 years.

Amendment 150 #

Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1

Member States shall adopt and publish, by 31 December 20267 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.

Amendment 151 #

Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1

Member States shall adopt and publish, by 31 December 20265 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.

Amendment 152 #

Proposal for a directive
Article 22 – paragraph 1 – subparagraph 2

They shall apply those provisions from 1 January 20278.

Amendment 153 #

Proposal for a directive
Article 22 – paragraph 1 – subparagraph 2

They shall apply those provisions from 1 January 20276.

Amendment 18 #

Proposal for a directive
Recital 1

(1) Ensuring fair taxation in the internal market and the good functioning of the Capital Markets Union (CMU) are political priorities for the European Union (EU). In this context, removing obstacles to cross-border investment, while combating tax fraud and abuse is critical. Such obstacles exist, for example, through inefficient and disproportionately burdensome procedures to relieve excess taxes withheld at source on dividend or interest income paid on shares or bonds traded publicly to non-resident investors. In addition, the status quo has proven inadequate in preventing recurring risks of tax fraud, evasion and avoidance, as shown by the recent Cum/Ex and Cum/Cum scandalsThe status quo has proven inadequate in preventing recurring risks of tax fraud, evasion and avoidance, as shown by the recent Cum/Ex and Cum/Cum scandals. It is estimated that these two have imposed a total cost to taxpayers of about EUR 140 billion between 2000 and 2020. This proposal seeks to make EU withholding tax procedures more efficient, while strengthening them against the risk of tax fraud and abuse. It draws on relevant previous actions at EU and international level, such as the 2009 Commission Recommendation on the simplification of withholding tax procedures and the OECD’s Treaty Relief and Compliance Enhancement (TRACE) initiative~~28 . _________________ 28 Commission Recommendation of 19 October 2009 on withholding tax relief procedures (Text with EEA relevance) (OJ L 279, 24.10.2009, p. 8–11)~~.

Amendment 19 #

Niels FUGLSANG, Evelyn REGNER

Proposal for a directive
Recital 1

(1) Ensuring fair taxation in the internal market and the good functioning of the Capital Markets Union (CMU) are political priorities for the European Union (EU). In this context, removing obstacles to cross-border investment, while combating tax fraud and abuse is critical. Such obstacles exist, for example, through inefficient and disproportionately burdensome procedures to relieve excess taxes withheld at source on dividend or interest income paid on shares or bonds traded publicly to non-resident investors. Such obstacles pose a particular challenge for retail investors. In addition, the status quo has proven inadequate in preventing recurring risks of tax fraud, evasion and avoidance, as shown by the recent Cum/Ex and Cum/Cum scandals. This proposal seeks to make EU withholding tax procedures more efficient, while strengthening them against the risk of tax fraud and abuse. It draws on relevant previous actions at EU and international level, such as the 2009 Commission Recommendation on the simplification of withholding tax procedures and the OECD’s Treaty Relief and Compliance Enhancement (TRACE) initiative28 . _________________ 28 Commission Recommendation of 19 October 2009 on withholding tax relief procedures (Text with EEA relevance) (OJ L 279, 24.10.2009, p. 8–11)

Amendment 20 #

Proposal for a directive
Recital 1 a (new)

(1 a) The cum-ex and cum-cum schemes both involve reclaims of dividend withholding tax to which the beneficiaries were not entitled and are estimated to have imposed a total cost to taxpayers of about EUR 55 billion between 2001 and 2012 in the 11 Member States concerned; revelations in 2021 concerning these practices estimate that they have cost 10 EU governments, including those of Germany, Spain, France and the US, a total of €141bn;

Amendment 21 #

Niels FUGLSANG, Evelyn REGNER, Aurore LALUCQ, Rasmus ANDRESEN

Proposal for a directive
Recital 1 b (new)

(1 b) the financial sector has demonstrated inadequacy in upholding its responsibility as intermediaries between clients and national tax administrations, notably by assisting clients in securing tax refunds for amounts not genuinely paid, thereby defrauding EU member states of billions of euros.

Amendment 22 #

Proposal for a directive
Recital 2

~~(2)~~ In order to strengthen Member ~~(2)~~ States’ ability to prevent and fight against potential fraud or abuse, which is currently hampered by fragmentation and a general lack of reliable and timely information on investors, it is therefore necessary to put in place a common framework for the re~~lief~~imbursment of excess withholding taxes on cross- border investments in securities that is resilient to a risk of tax fraud or abuse. This framework should lead to convergence among the various relief procedures applied in the EU while ensuring transparency and certainty on investors’ identity for securities’ issuers, withholding tax agents, financial intermediaries and Member States, as the case may be. To this effect, the framework should rely on automated procedures, such as the digitalisation of the certificate of tax residence (in terms of procedure and form), which is a pre-requisite for investors to have access to any relief or refund procedures. Such a framework sh~~ould also be flexible enough to duly take into account the various systems applicable in different Member States while ensuring~~all ensure greater convergence and providing appropriate anti-abuse tools to mitigate risks of tax fraud, evasion and avoidance.

Amendment 23 #

Proposal for a directive
Recital 2 a (new)

(2 a) To fight fraud, Member States’ Eurofisc liaison officials and the EPPO, OLAF and Europol should be able to access and analyse all needed information on withholding tax relief or refund procedures. Notes that the cum-ex and cum-cum schemes both involve reclaims of dividend withholding tax, facilitated by the financial sector and other intermediairies, to which the beneficiaries were not entitled and are estimated to have imposed a total cost to public coffers of around EUR 140 billion between 2000 and 2020 in the EU. Is afraid such schemes and similar schemes are still being deployed in Member States. Notes the progress made in certain Member States to fight such fraudulent schemes.

Amendment 24 #

Proposal for a directive
Recital 2 a (new)

(2 a) Research1a shows that IRD and PSD have been used by Member States to circulate untaxed royalties, interests and dividends payments in the EU with the aim of reaching a third-country jurisdiction with low or no taxes as a final destination. Moreover, research1b shows that the top 10 conduit countries include nine European countries, among which Luxembourg and the Netherlands are the most importantones. This situation can only be overturned with the application of strong anti-base erosion rules and the introduction of minimum rates on passive income. _________________ 1a Van ’t Riet M. and A. Lejour, 2020, A Common Withholding Tax On Dividend, Interest And Royalties In The European Union 1b Van ’t Riet M. and A. Lejour, 2018, Optimal Tax Routes: a network analysis of FDI diversion, International Tax and Public Finance 25(5), 321-1371.

Amendment 25 #

Proposal for a directive
Recital 2 b (new)

(2 b) The cum-ex and cum-cum schemes have been ruled illegal and should constitute serious criminal offenses.

Amendment 26 #

Proposal for a directive
Recital 2 c (new)

(2 c) Underlines Member States should strive to agree on a common withholding tax rate in the EU.

Amendment 27 #

Proposal for a directive
Recital 2 d (new)

(2 d) To ensure the integrety of the internal market the European Securities and Markets Authority (ESMA) and the European Banking Authority (EBA) should regularly monotor the risk for cum-cum, cum-ex and similar schemes in the EU and enhanced cooperation and mutual assistance between national competent authorities, tax authorities and other law enforcement bodies should help to detect and prosecute withholding tax reclaim schemes.

Amendment 28 #

Proposal for a directive
Recital 3

(3) ~~To ensure a proportionate approach, rules regarding the procedures to relieve excess withholding taxes should be binding only on those~~Recent research1a shows large differences in the application of withholding taxes in EU Member -States that apply withholding tax on dividends at different rates depending on the specific investor’s tax residence. In this case, Member States need to provide relief where a higher rate has been applied in a situation for which a lower rate is applicable. In addition, Member St- the rates can vary between 0 and 35% - and points to the fact that withholding tax rates in tax treaties should have the opportunity to implement similar procedures in relation to interest payments to non-residents on publicly traded bonds, to improve the efficiency of the relevant relief procedure and ensure a higher level of taxpayers’ compliance. Member States that do not need relief procedures in relation to excessare often 5 to 10 percentage points lower than the standard rates. In particular, Cyprus, Hungary, Latvia and Malta do not levy withholding taxes on neither dividends, ~~and~~ interest, as the case may be, are not concerned by the procedures set out in this Directive and therefore not bound by these rules. Given that investors may be located in any Member State, rules for a common and digital tax residence certificate should apply in all Member States and the same is the case for general and final provisions. or royalties payments and Luxembourg, Netherlands, Norway, Sweden do not levy it on interest and royalties. This situation leads to harmful tax practices. _________________ 1a Van’t Riet M. and A. Lejour, 2020, A Common Withholding Tax On Dividend, Interest And Royalties In The European Union

Amendment 29 #

Proposal for a directive
Recital 4

(4) To ensure that all EU taxpayers have access to a common, appropriate and effective proof of their residence for tax purposes, Member States should use automated procedures for the issuance of tax residence certificates in the same recognisable and acceptable digital form and with the same content. To allow for greater efficiency, the certificate should be valid at least for the whole year during which it has been issued and recognised by other Member States for that period. The eTRC should also contain a reference to applicable double taxation agreements. Member States can rescind an eTRC issued where the tax administration has proof to the contrary of the tax residence for that year. In order to allow for an efficient identification of EU companies, the certificate should include information on the European Unique Identifier (EUID).

Amendment 30 #

Proposal for a directive
Recital 5

(5) To fulfil the objective of more efficient re~~lief~~imbursement of excess withholding tax, common procedures should be implemented that allow to quickly obtain clear and secure information on the identity of the investor especially in the case of large investor bases, i.e., in relation to investment to publicly traded securities, where identifying the identity of the individual investors is challenging. Such procedures should also, as a second step, allow for the application of the appropriate tax rate at the time of payment (relief at source) or for. Such procedures should also, as a second step, the quick reimbursement of any excess amount of tax paid. Given that cross-border investments usually involve a payment chain of financial intermediaries, relevant procedures should equally allow for the tracing and identification of the chain of intermediaries and hence of the income flow from the issuer of the security until the final recipient, i.e., the sole investor or registered owner. ~~Relevant~~All Member States~~, i.e., those applying withholding tax on income from securities and providing relief for excess tax,~~ should therefore establish and maintain a national register of those financial intermediaries that have a significant role in the payment chain, and once registered require them to report information available to them about the dividend or, interest and royalties payments, if applicable, they handle. The information required should be limited to information that is crucial to reconstruct the payment chain and therefore useful to prevent risk of fraud or abuse, to the extent that such information is available to the reporting intermediary. Member States that apply withholding tax on interest at varying rates and need to engage in similar relief procedures may also consider using the established national register, as the case may be.

Amendment 31 #

Proposal for a directive
Recital 6

(6) As the financial intermediaries most often engaged in the securities’ payment chains are large institutions as defined in the Capital Requirements Regulation (CRR)29 as well as central securities depositories providing withholding tax agent services, these entitThe appropriate solution to these types of abusive tax practices shall be the setting by the Member States of a public registry for financial assets. However, as an intermediary solution, all financial intermediaries should be obliged to request registration on the national registers of Member States established as above. ~~Other financial intermediaries should be allowed to request registration at their discretion.~~ Registration should be requested by the financial intermediary itself by submitting an application to the competent authority designated by the Member State, including evidence that the financial intermediary meets certain requirements. The purpose of the requirements is to verify that the requesting intermediary meets the requirements of relevant EU regulation and supervised for compliance therewith. Where the financial intermediary is established outside the EU, it is required to be subject to legislation in the third country of its residence that is comparable for the purposes of this Directive and the third country of residence is neither on Annex I or II of the EU list of non-cooperative jurisdictions nor on the EU list of high-risk third countries (anti-money laundering list). Compliance of a third country financial intermediary with the relevant EU requirements relates solely for the purposes set out in this Directive and has no impact on the exercising or application of any other rights and obligations under other EU legislation. Once registered, financial intermediaries should be considered “certified financial intermediaries” in the respective Member State and be subject to the relevant reporting and notification obligations under this Directive while granted the right to request application of the relief procedures set out in this Directive. The Member States ~~that maintain a national register~~ should also take action to remove therefrom any certified financial intermediary that ~~so requests or~~ no longer meets the respective requirements. Furthermore, ~~these~~ Member States can decide to provide for the removal from their national register of certified financial intermediaries found to have violated their obligations a number of times. Where a Member State takes such action of removal, it should inform other Member States that maintain a national register accordingly in order to allow them to assess the removal of the same certified financial intermediary from their own national register. National legislation of the Member States concerned applies to the rights and obligations of parties concerned, including for appeal, in relation to any decision taken by a Member State in connection with registration and removal from their national register. _________________ 29 Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 Text with EEA relevance (OJ L 176, 27.6.2013, p. 1–337)

Amendment 32 #

Proposal for a directive
Recital 6

(6) As the financial intermediaries most often engaged in the securities’ payment chains are large institutions as defined in the Capital Requirements Regulation (CRR)29 as well as central securities depositories providing withholding tax agent services, these entities should be obliged to request registration on the national registers of Member States established as above. Other financial intermediaries should be allowed to request registration at their discretion. Registration should be requested by the financial intermediary itself by submitting an application to the competent authority designated by the Member State, including evidence that the financial intermediary meets certain requirements. The purpose of the requirements is to verify that the requesting intermediary meets the requirements of relevant EU regulation and supervised for compliance therewith. Where the financial intermediary is established outside the EU, it is required to be subject to legislation in the third country of its residence that is comparable for the purposes of this Directive and the third country of residence is neither on Annex I of the EU list of non-cooperative jurisdictions nor on the EU list of high-risk third countries (anti-money laundering list). Compliance of a third country financial intermediary with the relevant EU requirements relates solely for the purposes set out in this Directive and has no impact on the exercising or application of any other rights and obligations under other EU legislation. Once registered, financial intermediaries should be considered “certified financial intermediaries” in the respective Member State and be subject to the relevant reporting and notification obligations under this Directive while granted the right to request application of the relief procedures set out in this Directive. The Member States that maintain a national register should also take action to remove therefrom any certified financial intermediary that so requests or no longer meets the respective requirements. Furthermore, these Member States can decide to provide for the removal from their national register of certified financial intermediaries or to deny them access to relief system if they are found to have violated their obligations a number of times. Where a Member State takes such action of removal or denial, it should inform other Member States that maintain a national register accordingly in order to allow them to assess the removal of the same certified financial intermediary from their own national register. National legislation of the Member States concerned applies to the rights and obligations of parties concerned, including for appeal, in relation to any decision taken by a Member State in connection with registration and removal from their national register. _________________ 29 Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 Text with EEA relevance (OJ L 176, 27.6.2013, p. 1–337)

Amendment 33 #

Proposal for a directive
Recital 7

(7) To ensure greater transparency on the identity and the circumstances of the investor receiving a dividend or interest payment as well as on the flow of the payment from the issuer, certified financial intermediaries should report to the authority designated to maintain the national register, within specific timelines, a relevant set of information. This information should also be reported to the withholding tax agent, where relief at source is possible. This data should include information on the eligibility of the investor concerned, but should be limited to the information that is available to the reporting certified financial intermediary. Financial intermediaries that are not under an obligation to register as certified financial intermediaries and have also opted not to register as such, do not have reporting obligations under this Directive. Nevertheless, information on the payments handled by such intermediaries that are not certified financial intermediaries remains relevant and may be considered necessary by a Member State, at its discretion, to ensure transparency and to allow for the proper reconstruction of the payment chain before applying the relief procedures set out in this Directive (relief at source or quick refund). Therefore, Member States may request that certified financial intermediaries obtain this information from such intermediaries and report accordingly in order for the relief procedures laid out in this Directive to be applicable.

Amendment 34 #

Proposal for a directive
Recital 8

(8) In order to render the Capital Markets Union more effective and competitive, procedures for relief of excess withholding taxes on securities’ income should be facilitated and accelerated, where adequate information has been provided by relevant certified financial intermediaries, including on the identity of the investor. The relevant certified financial intermediaries consist of all the certified financial intermediaries in the payment chain between the investor and the issuer of the securities, which might be required to also provide information on payments effected by non- certified financial intermediaries in the chain, as per the policy choice of each Member State. Taking into account the different approaches in Member States, two types of procedures are envisaged: (i) relief at source by direct application of the appropriate tax rate at the time of withholding and (ii) quick refund within a maximum of 50 days of the date of payment of the dividend or, as the case may be, of the date when the bond issuer must pay interest to the bond holder (coupon date). Member States should be free to introduce any of the two or a combination of both procedures, as they deem appropriate while ensuring that at least one is available for all investors, where the requirements of this Directive have been met. To ensure the proper and timely implementation of these procedures by the Member States concerned, it is appropriate to apply interest on late refunds of excess withholding taxes that are covered by this Directive and meet the conditions to benefit from these procedures. Where relevant requirements are not met, or the investor concerned so desires, Member States should apply their existing standard refund procedures to relieve excess withholding taxes. In any case, registered owners, in particular retail investors, and their authorized representatives, should preserve the right to reclaim excess withholding tax paid in a Member State where they provide proof of meeting the conditions set out in national law.deleted

Amendment 35 #

Proposal for a directive
Recital 8

(8) In order to render the Capital Markets Union more effective and competitive, procedures for relief of excess withholding taxes on securities’ income should be facilitated and accelerated, where adequate information has been provided by relevant certified financial intermediaries, including on the identity of the investor. The relevant certified financial intermediaries consist of all the certified financial intermediaries in the payment chain between the investor and the issuer of the securities, which might be required to also provide information on payments effected by non-certified financial intermediaries in the chain, as per the policy choice of each Member State. Taking into account the different approaches in Member States, two types of procedures are envisaged: (i) relief at source by direct application of the appropriate tax rate at the time of withholding and (ii) quick refund within a ~~maximum of 50 days of the date of payment of the dividend or, as the case may be, of the date when the bond issuer must pay interest to the bond holder (coupon date)~~defined deadline. Member States should be free to introduce any of the two or a combination of both procedures, as they deem appropriate while ensuring that at least one is available for all investors, where the requirements of this Directive have been met. To ensure the proper and timely implementation of these procedures by the Member States concerned, it is appropriate to apply interest on late refunds of excess withholding taxes that are covered by this Directive and meet the conditions to benefit from these procedures assuming that the Member States responsible for issuing refunds already includes provisions for paying interest on late refunds in their domestic legislation. Where relevant requirements are not met, or the investor concerned so desires, Member States should apply their existing standard refund procedures to relieve excess withholding taxes. In any case, registered owners, in particular retail investors, and their authorized representatives, should preserve the right to reclaim excess withholding tax paid in a Member State where they provide proof of meeting the conditions set out in national law.

Amendment 36 #

Proposal for a directive
Recital 8

(8) In order to render the Capital Markets Union more effective and competitive, procedures for relief of excess withholding taxes on securities’ income should be facilitated and accelerated, where adequate information has been provided by relevant certified financial intermediaries, including on the identity of the investor. The relevant certified financial intermediaries consist of all the certified financial intermediaries in the payment chain between the investor and the issuer of the securities, which might be required to also provide information on payments effected by non-certified financial intermediaries in the chain, as per the policy choice of each Member State. Taking into account the different approaches in Member States, two types of procedures are envisaged: (i) relief at source by direct application of the appropriate tax rate at the time of withholding and (ii) quick refund within a maximum of 540 days of the date of payment of the dividend or, as the case may be, of the date when the bond issuer must pay interest to the bond holder (coupon date). Member States should be free to introduce any of the two or a combination of both procedures, as they deem appropriate while ensuring that at least one is available for all investors, where the requirements of this Directive have been met. To ensure the proper and timely implementation of these procedures by the Member States concerned, it is appropriate to apply interest on late refunds of excess withholding taxes that are covered by this Directive and meet the conditions to benefit from these procedures. Where relevant requirements are not met, or the investor concerned so desires, Member States should apply their existing standard refund procedures to relieve excess withholding taxes. In any case, registered owners, in particular retail investors, and their authorized representatives, should preserve the right to reclaim excess withholding tax paid in a Member State where they provide proof of meeting the conditions set out in national law.

Amendment 37 #

Proposal for a directive
Recital 8

(8) In order to render the Capital Markets Union more effective and competitive, procedures for relief of excess withholding taxes on securities’ income should be facilitated and accelerated, where adequate information has been provided by relevant certified financial intermediaries, including on the identity of the investor. The relevant certified financial intermediaries consist of all the certified financial intermediaries in the payment chain between the investor and the issuer of the securities, which might be required to also provide information on payments effected by non-certified financial intermediaries in the chain, as per the policy choice of each Member State. Taking into account the different approaches in Member States, two types of procedures are envisaged: (i) relief at source by direct application of the appropriate tax rate at the time of withholding and (ii) quick refund within a maximum of 50 days of the date of payment of the dividend or, as the case may be, of the date when the bond issuer must pay interest to the bond holder (coupon date). Member States should be free to introduce any of the two or a combination of both procedures, as they deem appropriate while ensuring that at least one is available for all investors, where the requirements of this Directive have been met. To ensure the proper and timely implementation of these procedures by the Member States concerned, it is appropriate to apply interest on late refunds of excess withholding taxes that are covered by this Directive and meet the conditions to benefit from these procedures. Where relevant requirements are not met, or the investor concerned so desires, Member States should apply their existing standard refund procedures to relieve excess withholding taxes. In any case, registered owners, in particular retail investors, and their authorized representatives, should preserve the right to reclaim excess withholding tax paid in a Member State where they provide proof of meeting the conditions set out in national law. Member States may reject a refund request when any verification procedure or tax audit is initiated.

Amendment 38 #

(9) In order to safeguard the systems for relief of excess withholding taxes, Member States maintaining a national register should also require certified financial intermediaries to verify the eligibility of investors that wish to claim a relief. In particular, certified financial intermediaries should collect the tax residence certificate of the relevant investor, and a declaration that such investor is the beneficial owner of the payment according to the legislation of the source Member State. They should also verify the applicable withholding tax rate based on the investor’s specific circumstances and indicate if they are aware of any financial arrangement involving the underlying securities that has not been settled, expired or otherwise terminated at the ex-dividend date. Certified financial intermediaries should be held liable for tax revenue losses that have been incurred due to the inadequate fulfilment of these obligations, to the extent that national law of the Member State where the loss incurred so provides. In order to ensure proportionality of the burden and liability imposed on certified financial intermediaries, reduced verification obligations should apply to all relief procedures, where the risk of abuse is low and in particular where the total amount of the dividend paid to the investor for a shareholding in a company is lower than EUR 1000. Should such abuse be proven otherwise, Member States can however apply consequences under national law, including denying the systems of relief provided in this Directive, but they cannot hold certified financial intermediaries liable for absence of verification.

Amendment 39 #

Proposal for a directive
Recital 9

(9) In order to safeguard the systems for relief of excess withholding taxes, Member States maintaining a national register should also require certified financial intermediaries to verify the eligibility of investors that wish to claim a relief. In particular, certified financial intermediaries should collect the tax residence certificate of the relevant investor, and a declaration that such investor is the beneficial owner of the payment according to the legislation of the source Member State. They should also verify the applicable withholding tax rate based on the investor’s specific circumstances and indicate if they are aware of any financial arrangement involving the underlying securities that has not been settled, expired or otherwise terminated at the ex-dividend date. Certified financial intermediaries should be held liable for tax revenue losses that have been incurred due to the inadequate fulfilment of these obligations, to the extent that national law of the Member State where the loss incurred so provides. In order to ensure proportionality of the burden and liability imposed on certified financial intermediaries, reduced verification obligations should apply to all relief procedures, where the risk of abuse is low and in particular where the total amount of the dividend paid to the investor for a shareholding in a company is lower than EUR 13000. Should such abuse be proven otherwise, Member States can however apply consequences under national law, including denying the systems of relief provided in this Directive, but they cannot hold certified financial intermediaries liable for absence of verification.

Amendment 40 #

Proposal for a directive
Recital 9

(9) In order to safeguard the systems for relief of excess withholding taxes, Member States maintaining a national register should also require certified financial intermediaries to verify the eligibility of investors that wish to claim a relief. In particular, certified financial intermediaries should collect the tax residence certificate of the relevant investor, and a declaration that such investor is the beneficial owner of the payment according to the legislation of the source Member State. They should also verify the applicable withholding tax rate based on the investor’s specific circumstances and indicate if they are aware of any financial arrangement involving the underlying securities that has not been settled, expired or otherwise terminated at the ex-dividend date. The due diligence requirements could be applied on an annual basis. Certified financial intermediaries should be held liable for tax revenue losses that have been incurred due to the inadequate fulfilment of these obligations, to the extent that national law of the Member State where the loss incurred so provides. In order to ensure proportionality of the burden and liability imposed on certified financial intermediaries, reduced verification obligations should apply to all relief procedures, where the risk of abuse is low and in particular where the total amount of the dividend paid to the investor for a shareholding in a company is lower than EUR 1000. Should such abuse be proven otherwise, Member States can however apply consequences under national law, including denying the systems of relief provided in this Directive, but they cannot hold certified financial intermediaries liable for absence of verification.

Amendment 41 #

Proposal for a directive
Recital 10

(10) It is acknowledged that financial arrangements can be used to shift the economic ownership, in whole or in part, of a security and/or relevant investment risks. It has also been evidenced that such arrangements have been used in dividend arbitrage and dividend stripping schemes such as the Cum/Ex and Cum/Cum schemes, with the sole purpose to obtain refunds when there was no entitlement thereto or to increase the amount of refund to which an investor was actually entitled. Information on such financial arrangements, which encompass ordinarily legitimate securities transactions such as repurchase agreements or securities lending, and also derivative products such as single stock futures, is therefore necessary for tax administrations to fight tax abuse. To ensure a proportionate approach, reporting on this information should only be required by those certified financial intermediaries that, due to their position within the chain, may have been directly involved in the relevant financial arrangement. Such reporting is not required in the case of bonds and interest payments.

Amendment 42 #

Proposal for a directive
Recital 12

(12) The proper implementation and enforcement of the proposed rules in each Member State concerned is critical for the promotion of the CMU as a whole as well as for the protection of the tax base of Member States and should therefore be monitored by the Commission. Member States should therefore communicate to the Commission on a regular basis, statistical information as specified by means of implementing act, on the implementation and enforcement in their territory of national measures adopted pursuant to this Directive. The Commission should prepare an evaluation on the basis of the information provided by Member States and other available data to evaluate the effectiveness of the proposed new rules. In this context the Commission should consider the need to update the rules introduced by virtue of this Directive.

Amendment 43 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ

Proposal for a directive
Recital 13

(13) In order to ensure uniform conditions for the implementation of this Directive, in particular for ~~(i)~~ the digital tax residence certificate~~, (ii)~~ and the reporting of financial intermediaries ~~and (iii) the request for relief under this Directive~~, implementing powers should be conferred on the Commission to adopt standard forms 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 Council30 . _________________ 30 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13)

Amendment 44 #

Proposal for a directive
Recital 14

(14) Any processing of personal data carried out within the framework of this Directive should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council31 . Financial intermediaries and Member States may process personal data under this Directive solely with the objective of serving a general public interest, namely for the purposes of combating tax fraud, tax evasion and tax avoidance, safeguarding tax revenues and promoting fair taxation, which strengthen opportunities for social, political and economic inclusion in Member States. Only entities participating in the WHT relief procedures under this Directive will have access to this data. Only the minimal amount of personal information required to identify underreporting, non-reporting, tax fraud, or abuse would be sent. Lastly, personal information will only be retained for as long as required for this purpose. To allow the effective pursuit of this objective, it is necessary to restrict certain rights of individuals provided by the aforementioned Regulation, especially the right to be notified on the processing of their data and the scope thereof as well as the right to consent on certain types of data processing. ~~_________________ 31 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~~ The rights of the data subjects shall be restored as soon as the conditions th~~e free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1)~~at supported the restriction cease to exist.

Amendment 45 #

Proposal for a directive
Recital 16 a (new)

(16 a) This Directive should be reviewed regularly with the aim of further facilitating witholding tax relief for retail investors.

Amendment 46 #

This Directive lays down rules on the issuance of a digital tax residence certificate by Member States and the procedure to re~~liev~~imburse any excess withholding tax that can be withheld by a Member State on dividends from publicly traded shares ~~and, where applicable~~, interest from publicly traded bonds paid to registered owners who are resident for tax purposes outside that Member State and payments of royalties.

Amendment 47 #

Proposal for a directive
Article 2 – paragraph 2

The procedures laid down in Chapter III shall apply to all Member States that provide relief of excess withholding tax on dividends paid for publicly traded shares~~. Member States that provide relief of excess withholding tax~~, on interest paid for publicly traded bonds ~~may apply Chapter III~~and on royalties.

Amendment 48 #

Enikő GYŐRI

Proposal for a directive
Article 2 – paragraph 2

~~The procedures laid down in Chapter III shall apply to all~~ Member States that provide relief of excess withholding tax on dividends paid for publicly traded shares via relief at source system may opt in to apply Chapter III. Member States that do not have such a comprehensive relief at source system shall apply Chapter III. Member States that provide relief of excess withholding tax on interest paid for publicly traded bonds may apply Chapter III.

Amendment 49 #

Proposal for a directive
Article 2 – paragraph 2

~~The procedures laid down in Chapter III shall apply to all~~ Member States that provide relief of excess withholding tax on dividends paid for publicly traded shares. and Member States that provide relief of excess withholding tax on interest paid for publicly traded bonds may apply Chapter III.

Amendment 50 #

Proposal for a directive
Article 3 – paragraph 1 – point 3 a (new)

(3 a) royalties’ means the payments as defined in Article 2 of Directive 2003/49/EC of 3 June 2003;

Amendment 51 #

Proposal for a directive
Article 3 – paragraph 1 – point 19

(19) ‘double tax treaty’ means an agreement or convention that provides for the elimination of double taxation of income, and where applicable, capital, in force between two (or more) ~~countrie~~jurisdictions.

Amendment 52 #

Proposal for a directive
Article 4 – paragraph 2 – introductory part

2. Member States shall issue the eTRC based on the available information within ~~one~~seven working day from submission of a request, subject to paragraph 4. The eTRC shall comply with the technical requirements of Annex I and shall include the following information:

Amendment 53 #

Proposal for a directive
Article 4 – paragraph 2 – point a

(a) the first and last name of the taxpayer and the date and place of birth, if the taxpayer is an individual, or its name and its European Unique Identifier number (EUID), if the taxpayer is an entity, where available

Amendment 54 #

Proposal for a directive
Article 4 – paragraph 2 – point f a (new)

(f a) the double tax treaty pursuant to which the taxpayer is considered resident for tax purposes in the Member State of issuance, where applicable;

Amendment 55 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ

Proposal for a directive
Article 4 – paragraph 2 – point f a (new)

(f a) the double tax treaty

Amendment 56 #

Proposal for a directive
Article 4 – paragraph 2 – point g

(g) any additional information that may be relevant where the certificate is issued to serve purposes other than relief of withholding tax under this Directive or information required to be included in a tax residence certificate under EU law.deleted

Amendment 57 #

Proposal for a directive
Article 4 – paragraph 2 – point g

Amendment 58 #

Proposal for a directive
Article 4 – paragraph 4

4. If more than ~~one~~seven working day is required to verify the tax residency of a specific taxpayer, the Member State shall inform the person requesting the certificate of the additional time needed and the reasons for the delay.

Amendment 59 #

Proposal for a directive
Article 4 – paragraph 4

4. If more than one working day is required to verify the tax residency of a specific taxpayer, the Member State shall inform the person requesting the certificate of the additional time needed and the reasons for the delay that, in any case, shall be no longer than three working days.

Amendment 60 #

Proposal for a directive
Article 4 – paragraph 5

5. Member States shall recognise an eTRC issued by another Member State as adequate proof of residence of a taxpayer in that other Member State in accordance with paragraph 3. However, if the Member State has a suspicion on the real residence of the taxpayer, the Member State is allowed to ask for additional proof and suspend the recognition of the eTRC in the meantime.

Amendment 61 #

Proposal for a directive
Article 4 – paragraph 5

5. Member States shall recognise an eTRC issued by another Member State as adequate proof of residence of a taxpayer in that other Member State in accordance with paragraph 3. In any case, Member States may prove the residence for tax purposes in their jurisdictions.

Amendment 62 #

Niels FUGLSANG, Aurore LALUCQ, Jonás FERNÁNDEZ, Evelyn REGNER, Rasmus ANDRESEN

Proposal for a directive
Article 4 – paragraph 5 a (new)

5 a. Member States shall take the appropriate measures to require an individual or entity deemed resident in their jurisdiction for tax purposes to inform tax authorities issuing the eTRC about any change that could affect the validity or the content of the eTRC.

Amendment 63 #

Proposal for a directive
Article 4 – paragraph 6

6. The Commission shall adopt implementing acts laying down standard computerised forms in machine-readable format, including the linguistic arrangements, and technical protocols, including security standards, for the issuance of an eTRC. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 18.

Amendment 64 #

Proposal for a directive
Chapter III – title

III WITHHOLDING TAX RE~~LIEF~~IMBURSMENT PROCEDURE

Amendment 65 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States that levy a withholding tax on dividends from publicly traded shares paid to registered owners resident for tax purposes outside that Member State and that provide relief of excess withholding tax shall establish a national register of certified financial intermediaries. Member States may opt to use this national register also in relation to relief of excess withholding tax onAll Member States shall establish a national register of certified financial intermediaries, covering dividends from publicly traded shares, interest from publicly traded bonds~~, if applicable~~ and payments of royalties.

Amendment 66 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States that levy a withholding tax on dividends from publicly traded shares paid to registered owners resident for tax purposes outside that Member State and that provide relief of excess withholding tax ~~shall~~may establish a national register of certified financial intermediaries. Member States may opt to use this national register also in relation to relief of excess withholding tax on interest from publicly traded bonds, if applicable.

Amendment 67 #

Proposal for a directive
Article 5 – paragraph 2

2. Member States that levy a withholding tax on interest from publicly traded bonds while they do not levy withholding tax on dividends from publicly traded shares may opt to establish a national register.deleted

Amendment 68 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ, Rasmus ANDRESEN

Proposal for a directive
Article 5 – paragraph 3

3. Member States establishing a national register according to paragraph 1 ~~and 2~~ shall designate a competent authority responsible for maintaining and updating that register.

Amendment 69 #

Proposal for a directive
Article 5 – paragraph 4 – point d a (new)

(d a) Information on the fees charged for the provision of services under this Directive.

Amendment 70 #

Proposal for a directive
Article 5 – paragraph 4 – point d a (new)

(d a) (e) detailed financial balance sheet;

Amendment 71 #

Proposal for a directive
Article 5 – paragraph 4 – point d b (new)

(d b) (f) beneficial ownership.

Amendment 72 #

Proposal for a directive
Article 6 – paragraph 1

1. Member States ~~that maintain a national register according to Article 5~~ shall require all ~~large~~ institutions ~~as referred to in Article 3(10)~~ that handle payments of dividends ~~and, where relevant~~, interest on securities and payments of royalties originating in their jurisdictions~~, and central securities depositories as referred to in Article 3(4) that provide withholding tax agent services for the same payments,~~ to register with their national register.

Amendment 73 #

Proposal for a directive
Article 6 – paragraph 2

2. Member States maintaining a national register in accordance with Article 5 shall enable, upon request, the registration in that register of any financial intermediary meeting the requirements of Article 7.deleted

Amendment 74 #

Proposal for a directive
Article 7 – paragraph 1 – introductory part

1. Member States shall ensure that a financial intermediary is registered in their national register of certified financial intermediaries within t~~hree~~wo months from submission of a request of the financial intermediary that provides evidence of all of the following requirements:

Amendment 75 #

Proposal for a directive
Article 7 – paragraph 1 – point a

(a) a residence for tax purposes in a Member State or third country jurisdiction not included on Annex I or II of the EU list of non-cooperative jurisdictions for tax purposes39 nor on the table I of the Annex to Delegated Regulation (EU) 2016/167540 ; _________________ 39 Council of the European Union, Economic and Financial Affairs Council, 14094/16, Brussels 8 November 2016 40 Commission Delegated Regulation (EU) 2016/1675 of 14 July 2016 supplementing Directive (EU) 2015/849 of the European Parliament and of the Council by identifying high-risk third countries with strategic deficiencies (OJ L 254, 20.9.2016, p. 1–4)

Amendment 76 #

Proposal for a directive
Article 7 – paragraph 1 – point c

(c) a declaration of compliance with the provisions of Council Directive 2014/107/EU41 or the provisions of Directive 2018/843/EU of the European Parliament and of the Council42 as applicable or with a comparable legislation of a third country jurisdiction not included on Annex I or II of the EU list of non- cooperative jurisdictions for tax purposes or on the table I of the Annex to Delegated Regulation (EU) 2016/1675. _________________ 41 Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (OJ L 359, 16.12.2014, p. 1–29) 42 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (OJ L 156, 19.6.2018, p. 43– 74)

Amendment 77 #

Proposal for a directive
Article 7 – paragraph 2

2. Financial intermediaries shall notify without undue delay the competent authority of the Member State of any relevant change in the information provided under points (a) to (c), providing the relevant documents where necessary.

Amendment 78 #

Proposal for a directive
Article 7 – paragraph 2 a (new)

2 a. Member States shall inform all other Member States about rejections of registration as soon as possible, according to Council Directive 2011/16/EU on administrative cooperation in the field of taxation.

Amendment 79 #

Proposal for a directive
Article 8 – paragraph 1 – point a

~~(a) requests such removal; or~~deleted

Amendment 80 #

Proposal for a directive
Article 8 – paragraph 3

3. The Member State that removes a certified financial intermediary from its national register shall inform, according to Council Directive 2011/16/EU on administrative cooperation in the field of taxation, without delay all other Member States that maintain a national register according to Article 5.

Amendment 81 #

Proposal for a directive
Article 8 – paragraph 3

3. The Member State that removes a certified financial intermediary from its national register shall inform without undue delay all other Member States that maintain a national register according to Article 5, specifying the grounds of the removal according to paragraphs 1 and 2.

Amendment 82 #

Niels FUGLSANG, Pedro MARQUES, Aurore LALUCQ, Jonás FERNÁNDEZ, Evelyn REGNER, Rasmus ANDRESEN

Proposal for a directive
Article 8 – paragraph 3

3. The Member State that removes a certified financial intermediary from its national register shall inform without delay all other Member States that maintain a national register according to Article 5, indicating the reasons for such removal.

Amendment 83 #

Niels FUGLSANG, Evelyn REGNER, Aurore LALUCQ, Pedro MARQUES, Jonás FERNÁNDEZ, Rasmus ANDRESEN

Proposal for a directive
Article 8 – paragraph 3 a (new)

3 a. Member States shall update their national registers to reflect the status of financial intermediaries no longer holding certification. In cases where the removal as a certified financial intermediary results from a decision by a Member State, the specific reasons for such action shall be clearly indicated in the register.

Amendment 84 #

Proposal for a directive
Article 9 – paragraph 1

1. Member States shall take the necessary measures to require certified financial intermediaries in their national register to report to the competent authority the information referred to in Annex II ~~as soon as possible~~within a maximum of 20 calendar days after the record date, unless a settlement instruction in respect of any part of a transaction is pending on the record date, in which case the reporting for that transaction shall take place as soon as possible after the settlement. If 20 days after the record date, settlement is still pending for any part of the transaction, certified financial intermediaries shall report within the next 5 calendar days indicating the part for which settlement is pending.

Amendment 85 #

Proposal for a directive
Article 9 – paragraph 1

1. Member States shall take the necessary measures to require certified financial intermediaries in their national register to report to the competent authority the information referred to in Annex II as soon as possible after the record date, unless a settlement instruction in respect of any part of a transaction is pending on the record date, in which case the reporting for that transaction shall take place as soon as possible after the settlement. If 2015 days after the record date, settlement is still pending for any part of the transaction, certified financial intermediaries shall report within the next 5 calendar days indicating the part for which settlement is pending.

Amendment 86 #

Proposal for a directive
Article 9 – paragraph 2

2. Member States shall provide that certified financial intermediaries do not need to report information referred to in Annex II, heading E, if the total dividend paid to the registered owner on the owner’s shareholding in a company does not exceed EUR 1000.deleted

Amendment 87 #

Proposal for a directive
Article 9 – paragraph 2

Amendment 88 #

Proposal for a directive
Article 9 – paragraph 3

3. Member States that opt to use a national register established in accordance with Article 5 in relation to payments of interest, shall require certified financial intermediaries to report the information included in Annex II but shall not require reporting of information under heading E.deleted

Amendment 89 #

Proposal for a directive
Article 9 – paragraph 5

5. Member States shall require certified financial intermediaries in their national register to keep the documentation supporting the information reported for ~~five~~eight years and to provide access to any other information, as well as access to their premises for the purpose of audit and shall require certified financial intermediaries to delete or anonymise any personal data included in such documentation as soon as the audit has been completed and at the latest ~~five~~eight years after reporting.

Amendment 90 #

Proposal for a directive
Chapter III – Section 3 – title

3 SYSTEMS OF RE~~LIEF~~IMBURSMENT

Amendment 91 #

Proposal for a directive
Article 10 – title

Request for ~~relief at source or~~ quick refund

Amendment 92 #

Proposal for a directive
Article 10 – paragraph 1 – introductory part

1. Member States shall require a certified financial intermediary maintaining the investment account of a registered owner receiving dividends or, interest and royalties to request relief pursuant to Article ~~12 and/or Article~~ 13, on behalf of such registered owner, if the following conditions are met:

Amendment 93 #

Proposal for a directive
Article 10 – paragraph 2 – introductory part

2. Notwithstanding paragraph 1, Member States shall not provide re~~lief~~imbursment under the systems as provided for under Articles ~~12 and~~ 13 for a request, where:

Amendment 94 #

Proposal for a directive
Article 10 – paragraph 2 – introductory part

2. Notwithstanding paragraph 1, Member States ~~shall~~may not provide relief under the systems as provided for under Articles 12 and 13 for a request, where:

Amendment 95 #

Proposal for a directive
Article 10 – paragraph 2 – point a

(a) the dividend has been paid on a publicly traded share that the registered owner acquired within a period of ~~two~~five days before the ex-dividend date;

Amendment 96 #

Proposal for a directive
Article 10 – paragraph 2 – point b a (new)

(b a) the amount of the relief requested deriving from each payment exceeds EUR 5000.

Amendment 97 #

Proposal for a directive
Article 10 – paragraph 3 – introductory part

3. Notwithstanding paragraph 1, Member States may exclude requests from re~~lief~~imbursment under Article~~s 12 and~~ 13, where:

Amendment 98 #

Proposal for a directive
Article 10 – paragraph 3 – point b

(b) an exemption or a reduced rate of the withholding tax is claimed.

Amendment 99 #

Proposal for a directive
Article 10 – paragraph 3 a (new)

3 a. The control powers of Member States, pursuant to their national legislation, on the taxable income to which the relief was applied, shall not be limited.

source: 756.221

2023/11/20 ECON 6 amendments...

Amendment 154 #

Proposal for a directive
Annex II – table 1 – column 2 – row 6

Tax identification number, if available, and email address

Amendment 155 #

Proposal for a directive
Annex II – table 1 – column 2 – row 9

Name, TIN, if available, date of birth, address

Amendment 156 #

Proposal for a directive
Annex II – table 1 – column 2 – row 10

Name, LEI, TIN, ~~address, EUID~~if available, address, EUID, where applicable

Amendment 157 #

Name, TIN, if available, date of birth, address

Amendment 158 #

Proposal for a directive
Annex II – table 1 – column 2 – row 15

Name, LEI, TIN, ~~address, EUID~~if available, address, EUID, where applicable

Amendment 159 #