# EUR-Lex - 52013PC0555 - EN

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# 52013PC0555

**Proposal for a COUNCIL DECISION on the conclusion of an agreement between the European Union and the French Republic concerning the application to the collectivity of Saint-Barthélemy of Union legislation on the taxation of savings and administrative cooperation in the field of taxation /* COM/2013/0555 final - 2013/0269 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           BACKGROUND TO THE
PROPOSAL

Under European Council Decision 2010/718/EU of
29 October 2010 the territorial collectivity of Saint-Barthélemy ceased to
be an outermost region of the Union and gained the status of overseas country or
territory on 1 January 2012.

Decision 2010/718/EU noted that France had undertaken to conclude the agreements necessary to ensure that the interests of the Union were preserved when the change took place.

To further progress on such agreements, a
Council decision of 20 October 2011, which was sent to the European
Commission on 24 October 2011, authorised the Commission to negotiate the
terms. Specifically, the authorisation concerned an agreement between the French Republic, acting for Saint-Barthélemy, and the Union that provided, for that territory,
for the application of Union legislation on the taxation of savings and
administrative cooperation in the field of taxation

The negotiating directives annexed to the
Council's decision laid down, in particular, that:

- the objective was to conclude an agreement
providing for the application to Saint-Barthélemy of the mechanisms of Council
Directive 77/799/EEC and Council Directive 2011/16/EU of 15 February 2011
on administrative cooperation in the field of taxation and of Council Directive
2003/48/EC of 3 June 2003 on taxation of savings income. To do this,
further legislative developments in these areas should be taken into account so
that the arrangements applicable to Saint-Barthélemy would be equivalent to
those applicable in mainland France;

- the agreement had to cover the arrangements
provided for in the Directives referred to above. On the question of taxation
of savings, it had to cover interest payments, as defined in Article 6 of
Council Directive 2003/48/EC and any amendments, made​by paying agents
established in Saint-Barthélemy to beneficial owners resident in the EU;

- the agreement was to be concluded for an
indefinite period of time.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES

Acting on this authorisation, the European
Commission drew up a draft agreement, on which negotiations were conducted with
  France in 2012 and early 2013.

The draft agreement was also discussed in the
EU Council's Working Party on Tax Questions and no Member State entered any
reservation.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The legal basis for this proposal is provided
by Articles 113 and 115 of the Treaty on the Functioning of the European Union,
in conjunction with Article 218(6)(b) and (8), second subparagraph. The
substantive legal basis is provided by Articles 113 and 115 TFEU. In fact, the
measure is designed to extend the mechanisms of Directives 2011/16/EU and
2003/48/EC, which are based on these two articles - to relations between the Member States and Saint-Barthélemy.

According to Article 1 of
the agreement, its purpose is to ensure the application to Saint-Barthélemy of
the tax provisions of:

- Council Directive 2011/16/EU, which repealed
Directive 77/799/EEC from 1 January 2013,

- Council Directive 2003/48/EC,

- and any related acts.

The provisions of Article 1(3)
and Article 2 render the agreement dynamic. It covers not only
future amendments to the two Directives but also any current or future
delegated and implementing acts[1].
This is needed to ensure identical treatment at all times in situations within
the European Union and between the Member States and Saint-Barthélemy.

Article 3 provides that the competent authorities are central liaison
offices, liaison departments and competent officials so as to ensure
consistency with any national measures transposing Council Directives
2011/16/EU and 2003/48/EC which have been taken, or will be taken, by the
Member States.

Statistics and information concerning the
application of the agreement to the collectivity of Saint-Barthélemy will be
submitted to the Commission by the French Republic (Article 4).

Provision is made for the settlement of
disputes as follows:

- a mutual agreement procedure between the
competent authorities of only the Member States concerned where implementation
or interpretation of the agreement leads to problems or raises issues between
these competent authorities (Article 5). The European
Commission will be informed of the results of this conciliation procedure,
after which it must inform the other Member States. Where there are issues of
interpretation, the European Commission may take part in consultations at the
request of any of the competent authorities;

- in the event of a dispute between the parties
on the interpretation or application of the agreement, they must meet with the
Commission before any referral to the Court of Justice (Article 6).
The Court has sole jurisdiction to judge such disputes.

The
formalities for the agreement's entry into force are set out in Article 7.

In keeping with the negotiating directives, Article 8
provides that the agreement is concluded for an indefinite period,
offering the parties the possibility of termination through diplomatic
channels.

2013/0269 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of an agreement between
the European Union and the French Republic concerning the application to the
collectivity of Saint-Barthélemy of Union legislation on the taxation of
savings and administrative cooperation in the field of taxation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
functioning of the European Union, and in particular Articles 113 and 115, in
conjunction with Article 218(6)(b) and (8), second subparagraph, thereof,

Having regard to the proposal from the
European Commission,

Having regard to the opinion of the
European Parliament,

Whereas:

(1)       In accordance with Council
Decision [XXX] of [...][2],
the Agreement between the European Union and the French Republic on the
application to the collectivity of Saint-Barthélemy of Union legislation on the
taxation of savings and administrative cooperation in the field of taxation was
signed on [...], subject to its conclusion at a later date.

(2)       The purpose of this
Agreement is to ensure that the mechanisms of two Directives, designed in
particular to combat fraud and cross-border tax evasion, continue to apply to
Saint-Barthélemy despite its changed status.

(3)       The Agreement should be
approved on behalf of the European Union,

HAS ADOPTED THIS DECISION:

Article 1

The Agreement between the European Union and
the French Republic concerning the application to the collectivity of
Saint-Barthélemy of Union legislation on the taxation of savings and
administrative cooperation in the field of taxation is hereby approved on
behalf of the Union.

The text of the Agreement is attached to
this Decision.

Article 2

The
President of the Council shall designate the person empowered to proceed, on
behalf of the European Union, to the notification referred to in Article 7 of
the Agreement in order to express the consent of the European Union to be bound
by the Agreement.

Article 3

This Decision shall enter into force on the
day of its adoption.[3]

Done at Brussels,

For
the Council

The
President

ANNEX

Agreement between the European Union and
the French Republic concerning the application to the collectivity of
Saint-Barthélemy of Union legislation on the taxation of savings and
administrative cooperation in the field of taxation

The EUROPEAN UNION, represented by the
European Commission,

and

the FRENCH REPUBLIC, on behalf of the
collectivity of Saint-Barthélemy,

Whereas:

(1) The collectivity of Saint-Barthélemy is
an integral part of the French Republic but, in accordance with the European
Council Decision 2010/718/EU of 29 October 2010 amending the status of the
collectivity of Saint-Barthélemy with regard to the European Union, is no
longer part of the European Union from 1 January 2012[4].

(2) In order to continue to protect the
interests of the European Union, and in particular to combat fraud and
cross-border tax evasion, it is necessary to ensure that Union legislation on
administrative cooperation in the field of taxation and on taxation of savings
income in the form of interest payments continues to apply to the collectivity
of Saint-Barthélemy. It is equally necessary to ensure that any acts amending
this legislation will also apply to the collectivity of Saint-Barthélemy,

HAVE AGREED AS FOLLOWS:

Article 1

Application of
Council Directives 2011/16/EU and 2003/48/EC and related acts

1. The French Republic and the other Member States shall apply to the collectivity of Saint-Barthélemy Council Directive
2011/16/EU and any measures that they have adopted to implement this Directive.

2. The French Republic and the other Member States shall apply to the collectivity of Saint-Barthélemy Council Directive
2003/48/EC and any measures that they have adopted to implement the Directive.

3. The French Republic and the other Member States shall apply to the collectivity of Saint-Barthélemy any applicable acts of
the European Union adopted on the basis of the Directives referred to in
paragraphs 1 and 2.

4. The Parties to this Agreement declare
that the European Commission has, with respect to the collectivity of
Saint-Barthélemy, the same tasks as those provided for in Council Directives 2011/16/EU
and 2003/48/EC and by any other related legal instruments adopted by the
Council with a view to facilitating administrative cooperation between the
competent authorities of the Member States.

Article 2

Applicable versions
of Union acts referred to in this Agreement

The references in this Agreement to
Directives 2011/16/EU and 2003/48/EC, and to other acts and instruments of the
European Union referred to in Article 1(3) and (4), shall be understood as
being made to the Directives and related acts and instruments in the version in
force at any given time, amended where appropriate by any subsequent amending
acts.

Article 3

Competent
authorities, central liaison offices, liaison
departments and competent officials

The Parties to this Agreement declare that
the competent authorities designated under Directive 2003/48/EC, and the
competent authorities, central liaison offices, liaison departments and
competent officials designated under Directive 2011/16/EU by Member States,
shall be invested with the same functions and powers for the purpose of
implementing these Directives with respect to the collectivity of St
Barthélemy, in accordance with Article 1 of this Agreement.

Article 4

Monitoring

The French Republic shall submit statistics
and information to the Commission concerning the application of this Agreement
to the collectivity of Saint-Barthélemy. This data shall have the same scope,
and be reported in the same manner and within the same time limits, as the
information that must be provided on the functioning of Directives 2011/16/EU
and 2003/48/EC with respect to the French territories to which these Directives
are applicable.

Article 5

Mutual agreement
procedure between the competent authorities

1. Where implementation or interpretation
of this Agreement leads to problems or raises issues between the competent
authority for the collectivity of Saint-Barthélemy and one or more competent
authorities of the Member States, they shall endeavour to resolve the matter by
mutual agreement. They shall inform the European Commission of the results of
this conciliation procedure, after which the Commission shall inform the other
Member States.

2. Where there are issues of
interpretation, the European Commission may take part in consultations at the
request of any of the competent authorities referred to in paragraph 1.

Article 6

Settlement of
disputes between Parties to this Agreement

1. In the event
of a dispute between the Parties on the interpretation or application of this
Agreement, the Parties shall meet before any referral to the Court of Justice
of the European Union in accordance with paragraph 2.

2. The Court of Justice of the European Union shall have exclusive
jurisdiction for settling disputes between the Parties to this Agreement about
its application or interpretation. Referral can be made by any of the Parties.

Article 7

Entry into force

Each Contracting Party shall notify the
other of the completion of the procedures required for entry into force of this
Agreement. The Agreement shall take effect on the day following the day of
receipt of the second notification.

Article 8

Duration and
termination

This Agreement is concluded for an
indefinite period, subject to termination by one of the Contracting Parties
after written notice to the other Party through diplomatic channels. This
Agreement shall expire twelve months after the receipt of such notice.

Article 9

Languages

This Agreement
is drawn up in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch,
English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian,
Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish
and Swedish languages, each of these texts being equally authentic.

Done at ... on ...

For
the European Union            For the French Republic

[1]               This does not prejudge in any way the position of the
Member States in the Council when deciding whether delegated or implementing
powers should be conferred on the Commission.

[2]               OJ [...], [...], p. [...].

[3]               The date of entry into force of the Agreement will be
published in the Official Journal of the European Union by the General
Secretariat of the Council.

[4]               OJ L 325, 9.12.2010, p.4.