# EUR-Lex - 52013PC0556 - EN

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# 52013PC0556

**Proposal for a COUNCIL DECISION on the signature, on behalf of the European Union, of 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 /* COM/2013/0556 final - 2013/0270 (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 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
France, acting for Saint-Barthélemy, and the Union that provided, for that
territory, for the application of the Union legislation on 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[1]
and Council Directive 2011/16/EU[2]
on administrative cooperation in the field of taxation and of Council Directive
2003/48/EC[3]
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 the
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(5) 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[4].
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 Member
States.

Statistics and information concerning the
application of the agreement to the collectivity of Saint-Barthélemy will be
submitted to the Commission by France (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 the 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.

2013/0270 (NLE)

Proposal for a

COUNCIL DECISION

on the signature, on behalf of the
European Union, of 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

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(5) and (8), second paragraph thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       According to the terms of
European Council Decision 2010/718/EU of 29 October 2010 amending the
status of the island of Saint-Barthélemy with regard to the European Union[5], the island of Saint-Barthélemy
ceased to be an outermost region of the Union with effect from 1 January 2012
and gained the status of overseas country or territory referred to in Part Four
of the Treaty on the Functioning of the European Union. The French Republic had
undertaken to conclude the agreements necessary to ensure that the interests of
the Union were preserved when the change took place, to ensure, inter alia,
that the mechanisms of Directive 2011/16/EU[6]
and of Directive 2003/48/EC[7]
would also apply to Saint-Barthélemy following its change of status.

(2)       Acting on the
authorisation conferred on it by the Council on 20 October 2011, the
Commission negotiated an agreement between the French Republic, acting for
Saint‑Barthélemy, and the Union that provided, for that territory, for
the application of the Union legislation on taxation of savings and
administrative cooperation in the field of taxation.

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

(4)       The Agreement should be
signed on behalf of the Union, subject to its conclusion at a later date,

HAS ADOPTED THIS DECISION:

Article 1

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

The text of the Agreement to be signed is
attached to this Decision.

Article 2

The Council
Secretariat General shall establish the instrument of full powers to sign the
Agreement, subject to its conclusion, for the person(s) indicated by the
negotiator of the Agreement.

Article 3

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

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 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, it
is no longer part of the European Union from 1 January 2012[8].

(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 this
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 2033/48/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
Saint-Barthélemy, in accordance with Article 1 of this Agreement.

Article 4

Monitoring

The French Republic shall submit statistics
and information to the European 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
apply.

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 may 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, Irish, Italian,
Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian,
Spanish and Swedish languages, each text being equally authentic.

Done at ... , on
...

For the European Union            For the
French Republic

[1]               Council Directive 77/799/EEC of 19 December 1977
concerning mutual assistance by the competent authorities of the Member States
in the field of direct taxation and taxation of insurance premiums, OJ L
336, 27.12.1977, p. 15.

[2]               Council
Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the
field of taxation and repealing Directive 77/799/EEC, OJ L 64, 11.3.2011, p. 1.

[3]               Council Directive 2003/48/EC of 3 June 2003 on
taxation of savings income in the form of interest payments, OJ L 157,
26.6.2003, p. 38.

[4]               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.

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

[6]               Council
Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the
field of taxation and repealing Directive 77/799/EEC, OJ L 64, 11.3.2011, p. 1.

[7]               Council Directive 2003/48/EC of 3 June 2003 on
taxation of savings income in the form of interest payments, OJ L 157,
26.6.2003, p. 38.

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