# EUR-Lex - 52015PC0129 - EN

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# 52015PC0129

**Proposal for a COUNCIL DIRECTIVE repealing Council Directive 2003/48/EC /* COM/2015/0129 final - 2015/0065 (CNS) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

In 2003, the Council adopted a Directive on
the taxation of savings income received in the form of interest payments (the
Savings Directive). This Directive served two main purposes: avoiding
distortions to the movement of capital and allowing effective taxation of
interest payments made from paying agents established in one Member State to
individuals resident in another Member State. The Savings Directive facilitates
the taxation of this type of interest payment in accordance with the laws of
the Member State of residence of the individual receiving the savings income,
by way of requesting automatic exchange of information on the interest payments
being made to those individuals. The provisions of the Directive became
applicable on 1 July 2005, were extended to Bulgaria and Romania as an effect
of the accession of these countries on 1 January 2007, and to Croatia as an
effect of the accession of this country on 1 July 2013.

The Directive was the result of the
Presidency Conclusions of the European Council of 19-20 June 2000, when Member
States agreed that, in order to implement the principle that all citizens
should pay tax due on all their savings income, exchange of information, “on as
wide a basis as possible”, shall be the ultimate objective of the EU in line
with international developments.

The Directive, as adopted in 2003, covered
individuals’ savings income resulting from debt claims (either classical
interest income or capital gains on debt securities) received either directly
or through investment funds, or through some other intermediary untaxed
entities. It introduced provisions on the automatic exchange of information on
this savings income paid by paying agents established in one Member State to
individuals resident in another Member State. All Member States except Belgium,
Luxembourg and Austria immediately introduced systems for reporting information
automatically. Belgium, Luxembourg and Austria were allowed during a
transitional period to levy a withholding tax instead of providing information,
at a rate of 15 % for the first three years following the entry into force
of the Directive (until 30 June 2008), at a rate of 20 % for the following
three years (until 30 June 2011), and at a rate of 35 % thereafter. The
rules stipulated that 75 % of the revenue from this withholding tax be
transferred to the investor’s Member State of residence. Belgium decided to
stop applying the transitional withholding tax as of 1 January 2010 and to
exchange information in the same way as other Member States. Luxembourg has
done the same as of 1 January 2015.

Equivalent measures to those of the Savings
Directive have been applied, from 1 July 2005, in five non-EU European
countries, including Switzerland, in regard to savings income paid there to EU
resident individuals. Measures identical to those of the Directive have been
applied, from the same date, in ten dependent or associated territories of EU
Member States (twelve following the dissolution of the Netherlands Antilles)
through the implementation of bilateral agreements that each of these
jurisdictions signed with each of the Member States. Following
Saint-Barthélemy’s change of status, France has undertaken that
Saint-Barthélemy will apply both the current and future provisions of both the
Savings Directive and the Directive on Administrative Cooperation.

Following the first review of the Savings
Directive, the Commission proposed a number of amendments in November 2008,
with a view to closing existing loopholes and more effectively preventing tax
evasion. The proposed amendments sought to improve the Directive by
strengthening measures to ensure that interest payments were subject to
taxation. The scope of the provisions on intermediate structures was therefore
extended. The proposal also extended the scope of the Directive to income from
instruments equivalent to debt instruments, i.e. innovative financial products
and certain life insurance products. The amendments were adopted by the Council
under Directive 2014/48/EU of 24 March 2014[1]
(the Amending Savings Directive). Article 2 of this Directive stipulates that
Member States must adopt and publish the laws, regulations and administrative
provisions necessary to comply with the Directive by 1 January 2016. Member
States would be obliged to apply these provisions from 1 January 2017.

While asking the Council to proceed to the
formal adoption of the Amending Savings Directive, the European Council of 21
March 2014 concluded that the Global Standard being developed by the Organisation for Economic Co-operation and Development (OECD) shall be the method for automatic exchange of information
that the EU will apply within its borders. The European Council did so by
inviting the Council to ensure that, with the further adoption by the end of
2014 of an amended text for the Directive on Administrative Cooperation, EU law
is fully aligned with the new global standard.

On 12 June 2013, the Commission had
actually proposed amendments to Directive 2011/16/EU on Administrative
Cooperation in the field of Taxation. The main purpose of the proposal was to
provide Member States with an appropriate EU-level legal basis for implementing
the global standard on automatic exchange of information (the global standard)
being developed by the OECD. The scope of the proposed Amending Directive is
very broad, as it covers all types of financial products (with specific
exemptions) held directly or indirectly by individuals or by “non-public”
entities. This Amending Directive was adopted on 9 December 2014 – Council
Directive 2014/107/EU[2] (the Amending Directive on Administrative Cooperation). Article 2
of this Directive stipulates that Member States must adopt and publish the
laws, regulations and administrative provisions necessary to comply with the
Directive by 31 December 2015. They are required to apply these provisions from
1 January 2016 and to start exchanging information by September 2017. Austria
received a derogation under Article 2(2), on the grounds of structural
differences, and is allowed to start applying the Directive up to one year
later than other Member States. At the time of adopting the Directive, Austria
announced that it would not make full use of the derogation. It would start
exchanging information by September 2017 on a limited set of accounts (only new
accounts opened during the period 1 October 2016 - 31 December 2016), while
making use of the derogation for other accounts.

The last subparagraph of the new Article
8(3a) introduced by the Amending Directive on Administrative Cooperation states
clearly that the provisions contained in this paragraph (paragraph 3a) will
take precedence over the revised Savings Directive. Since there is significant
overlap between the two Directives, there would thus be only a few cases where
the revised Savings Directive would still apply.

This small number of cases arises in
essence for three reasons. Firstly, the Amending Directive on Administrative
Cooperation sets reporting obligations on Financial Institutions that are
entities as defined therein. Therefore, unlike the Savings Directive, it does
not set reporting obligations on individuals (e.g. brokers) that may pay
financial income. Secondly, there are some exemptions in the Amending Directive
on Administrative Cooperation with regard to certain pension/retirement funds,
credit card issuers, regulated tax-favoured accounts and similar financial
institutions and products that pose a low risk for tax evasion. Thirdly, the
paying agent on receipt approach in Article 4(2) of the Savings Directive
covers also interest paid by a non-participating jurisdiction through a Member
State’s paying agent on receipt; in addition, the look-through approach under
Article 2(3) and enhanced paying agent on receipt approach under Article 4(2)
of the revised Savings Directive cover also income paid through
"Active" non-financial entities, as long as they are tax-exempt.
These residual cases exist as a result of slight differences in the approaches
taken by the Savings Directive and the Amending Directive on Administrative
Cooperation, and specific exemptions included in the two Directives. The effect
of these residual cases being covered or not by the EU legislation under
discussion here is marginal in the context of the overall scope of the Amending
Directive on Administrative Cooperation. The international application of the
global standard and the close supervision of its implementation by the Global
Forum on Transparency and Exchange of Information will minimise any risks
associated with these residual cases.

It follows that the benefit to be gained
from keeping the two legal instruments operating in parallel would be minimal.
While the above-mentioned carve-out provided for by the new Article 8(3a)
introduced by the Amending Directive on Administrative Cooperation could have
served to avoid the reporting under the Savings Directive in most of the cases,
the co-existence of two legal instruments with a substantially similar scope is
not in line with better regulation principles and the interest of clarity and
legal certainty. In addition, keeping the two legal systems operating in
parallel would mean having two sets of similar, but not fully aligned, customer
due diligence rules, procedures and reporting systems — both in respect of
financial institutions reporting to competent authorities, and of competent
authorities exchanging information between themselves. The cost of this would
greatly outweigh the benefits of the additional coverage given by the Savings
Directive.

In order to make sure that there is only
one applicable standard for automatic exchange of information within the EU,
and to avoid situations where two standards are applied in parallel, the
Savings Directive should be repealed.

In order not to leave any gaps in the
reporting, the repeal of the Savings Directive needs to be well coordinated
with the timing of the application of the Amending Directive on Administrative
Cooperation, taking particular account of the extension of the timeline for
application granted to Austria.

Since the objective of this proposal for a
Directive, namely the repeal of the Savings Directive with the temporary
exceptions necessary to protect the acquired rights and to take account of the
derogation allowed to Austria under the Amending Directive on Administrative
Cooperation, cannot be sufficiently achieved by the Member States and can
therefore, by reason of the uniformity and effectiveness required, be better
achieved at the level of the Union, the Union may adopt measures, in accordance
with the principle of subsidiarity as set out in Article 5 of the Treaty on the
European Union. In accordance with the principle of proportionality, as set out
in that Article, this proposal for a Directive does not go beyond what is
necessary in order to achieve that objective.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

The European Council Conclusions of 21
March 2014 and the Economic and Financial Affairs Council Statement of 9
December 2014 demonstrate Member States clear preference for having only one
standard for the automatic exchange of information on financial income. This
standard has now been fully implemented through the Amending Directive on
Administrative Cooperation.

In meetings of the Commission expert group
on the taxation of savings income, experts stressed the importance of having
one system by which information is reported automatically for the purpose of
direct taxation. They explained that the parties they represent — EU financial
institutions and intermediaries — wished to avoid duplication of reporting
systems. The export group also reported that the sector was already introducing
new or adapting existing IT systems in preparation for US  Foreign Account Tax
Compliance Act (FATCA) reporting and emphasised the need for future EU
legislation on the automatic exchange of financial account information to be
aligned with the OECD global standard on automatic exchange of information
(which is itself based on customer due diligence principles developed in
FATCA), in order to reduce compliance and administrative burdens.

As outlined above, repealing the Savings
Directive will have a very marginal effect, if any, on the effectiveness of
automatic exchange of information as resulting from the Amending Directive on
Administrative Cooperation and essentially constitutes a measure of better
regulation. Consequently, no impact assessment has been prepared.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

Article 1 enacts the repeal of the
Directive. It coordinates the repeal with the application of the Amending
Directive on Administrative Cooperation by Member States.

Article 1(1)(a) and Article 1(1)(b)
encompass the core reporting and information exchange obligations foreseen in
Article 4(2) and, respectively, in Article 8 and Article 9 of the Savings Directive.

Article 1(1)(a) provides that economic
operators and the Member States where those are established shall report and
exchange the information that has been collected for 2015. That information
relates to paying agents on receipt under Article 4(2) of the Savings Directive
established in other Member States, to be reported under the same deadline as
foreseen in Article 9, “within six months following the end of the tax year”.
This deadline is 30 June 2016 for most Member States, but it is 5 October 2016
in the case of the United Kingdom. The extension of the application is
therefore fixed to encompass also the United Kindom deadline. The timeline is
left open for any follow-ups and corrections after that date.

Article 1(1)(b) provides that economic operators
and paying agents and the Member States where those are established shall
report and exchange the information that has been collected for 2015, as
provided in Article 9 “within six months following the end of the tax year”,
which is 30 June 2016 for most Member States, but it is 5 October 2016 in the
case of the United Kingdom. The extension of the application is therefore fixed
to 5 October 2016 with a view to encompass also the United Kindom deadline. The
timeline is left open for any complements of information and corrections needed
after that date.

Article 1(2) contains specific provisions
to be implemented by Austria.

Austria will apply the Amending Directive
on Administrative Cooperation with a delay that will in most cases be one year.
Nevertheless, at the time of the adoption of the Directive on 9 December 2014,
Austria committed to exchanging information already in 2017, albeit only on a
limited set of accounts (only new accounts opened in the period 1 October 2016
– 31 December 2016), while retaining the derogation in other cases.  Therefore,
Austria will in general have to apply the Savings Directive for an additional
year, except for the limited set of accounts that will be reported in 2017
under the Directive on Administrative Cooperation. Unlike Luxembourg, Austria
has not indicated that it will apply automatic exchange of information under
the Savings Directive before the end of the transitional period indicated in
Article 10 therein. It is also not expected that the conditions for the end of
that transitional

period will be fulfilled by the date of
application by Austria of the Amending Directive on Administrative Cooperation.
Therefore, for the purposes of Article 1 paragraph 2 it is assumed that Austria
will continue to apply the transitional withholding tax under the Savings
Directive during 2016, with the exception of the limited set of accounts that
will be reported by Austria in 2017 under the Amending Directive on
Administrative Cooperation.

Accordingly, there is a reference in Article
1(2)(a) to the obligations of Austria and the underlying obligations of paying
agents established therein to transfer the withholding tax on interest payments
withheld in 2016, in accordance with Article 12 of the Savings Directive.

Austria will also have to fulfil its
obligations with regard to the reporting by its economic operators under the
last subparagraph of Article 4(2) of the Savings Directive, in cases where the
entity receiving an interest payment from those economic operators and referred
to in Article 11(5) of the same Directive has formally agreed to its name,
address and the total amount of interest paid to it or secured for it being
communicated in accordance with the last subparagraph of Article 4(2) of that
Directive. The relevant provision ensuring this is in Article 1(2)(b) of this
Proposal.

In addition, should Austria provide for the
procedure under Article 13(1)(a) of the Savings Directive, the obligations on
Austria and the underlying obligations of the paying agents established therein
to report under Chapter II of the Savings Directive would also have to be
respected. The relevant provision ensuring this is in Article 1(2)(c) of this
Proposal.

All the obligations foreseen in Article
1(2) should be fulfilled within six months of the end of the tax year in
Austria, i.e. 30 June 2017.

For the limited set of accounts that will
be subject to customer due diligence as of 1 October 2016 and will be reported
in 2017 under the Directive on Administrative Cooperation as amended by the
related Amending Directive, an exception to the extension of the application of
the Savings Directive is added in Article 1(3).

The 27 Member States that will apply the
Amending Directive on Administrative Cooperation as of 1 January 2016 will
still have to grant to beneficial owners resident therein the certificate under
Article 13(2) of the Savings Directive. Since the last date where that
certificate would be applicable is the last date where Austria would apply
withholding tax under the Savings Directive, the date is fixed in Article
1(1)(c) of this Proposal at 31 December 2016. As Luxembourg will apply the
Savings Directive without levying a withholding tax as of 1 January 2015,
Austria is the only Member State that will apply the withholding tax under the Savings
Directive in 2015 and 2016.

The rules for the elimination of any double
taxation that might result from the application of the transitional withholding
tax levied under the Savings Directive would also have to extend beyond the
date of application of the Amending Directive on Administrative Cooperation.
Subject to the domestic rules in the specific Member State that is to provide
the credit or refund according to Article 14 of the Savings Directive, the
application of that provision may have to extend well beyond the last date when
the withholding will be applied, which is 31 December 2016 for the withholding
tax levied in Austria (see Article 1(1)(d) of this Proposal). This is a
transitional measure protecting acquired rights of beneficial owners under
Article 14 of the Savings Directive with regard to their Member State of
residence.

Article 2 provides that the Directive shall
enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.

Article 3 provides that the Directive is
addressed to the Member States.

4.           BUDGETARY IMPLICATION

The proposal does not have any budgetary
implications.

2015/0065 (CNS)

Proposal for a

COUNCIL DIRECTIVE

repealing Council Directive 2003/48/EC

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 115 thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national parliaments,

Having regard to the opinion of the
European Parliament,

Having regard to the opinion of the
European Economic and Social Committee,

Acting in accordance with a special
legislative procedure,

Whereas:

(1)       Building
on the consensus reached at the European Council of 20 June 2000 that relevant
information should be exchanged for tax purposes on as wide a basis as
possible, Council Directive 2003/48/EC[3]
has been applied in Member States since 1 July 2005 with the aim of enabling
savings income in the form of interest payments made in one Member State to
beneficial owners who are individuals resident in another Member State to be
made subject to effective taxation in accordance with the laws of the latter
Member State, thus eliminating distortions in capital movements between Member
States incompatible with the internal market.

(2)       The
worldwide aspect of the challenges posed by cross-border tax fraud and evasion
is a major focus of concern at a global level and within the Union. Unreported
and untaxed income considerably reduces national tax revenues. The European
Council on 22 May 2013 welcomed ongoing efforts made in the G8, G20 and the
Organisation for Economic Co-operation and Development (OECD) to develop a
global standard.

(3)       Directive 2011/16/EU[4]  provides for mandatory
automatic exchange of certain information between Member States and for a
step-by-step extension of its scope into new categories of income and capital,
for the purpose of combating cross-border tax fraud and evasion.

(4)       On 9 December 2014, the
Council adopted Directive 2014/107/EU[5]
amending Directive 2011/16/EU that extended automatic exchange of information
to a full range of income in accordance with the Global Standard released by
the OECD Council in July 2014 and ensured a coherent, consistent and
comprehensive Union-wide approach to the automatic exchange of financial
account information in the Internal Market.

(5)       Directive 2014/107/EU is
generally broader in scope than Directive 2003/48/EC and provides that in cases
of overlap of scope, Directive 2014/107/EU prevails. There are still residual
cases in which only Directive 2003/48/EC would otherwise apply. These residual
cases are a consequence of slight differences in approach between the two
directives and of different specific exemptions. Where, in those limited
instances, the scope of Directive 2003/48/EC lies outside the scope of
Directive 2014/107/EU, the relevant provisions of Directive 2003/48/EC would
continue to apply, resulting in dual reporting standards within the Union. The
minor benefits of retaining such dual reporting would be outweighed by the
costs.

(6)       On 21 March 2014, the
European Council invited the Council to ensure that relevant Union law is fully
aligned with the new single Global Standard of automatic exchange of
information developed by the OECD. In addition, when adopting Directive
2014/107/EU, the Council  invited the Commission to present a proposal to
repeal Directive 2003/48/EC and to coordinate the repealing of that Directive
with the date of application set forth in Article 2 of Directive 2014/107/EU
with due regard to the derogation provided therein for Austria. Therefore,
Directive 2003/48/EC should continue to apply to Austria during an additional
one-year period. In the light of the position taken by the Council, the repeal
of Directive 2003/48/EC would be needed in order to avoid dual reporting
obligations and to save costs both for tax administrations and economic
operators.

(7)       Under Article 2 of Directive 2014/48/EU[6] amending Directive 2003/48/EC, Member
States would have to adopt and publish, by 1 January 2016, the laws,
regulations and administrative provisions necessary to comply with that
Directive. They would have to apply those provisions as of 1 January 2017. With
the repeal of Directive 2003/48/EC, Directive
2014/48/EU would no longer have to be transposed.

(8)       To ensure the seamless
continuation of automatic reporting of financial account information, the
repeal of Directive 2003/48/EC should enter into effect on the same day as the
date of application set forth in Article 2 of Directive 2014/107/EU.

(9)       Notwithstanding the repeal
of Directive 2003/48/EC, information gathered by paying agents, economic
operators and by Member States until the date of the repeal should be processed
and transferred as originally envisaged and obligations which arose prior to
that date should be met.

(10)     In
relation to withholding tax levied under the transitional period referred to in
Article 10 of Directive 2003/48/EC, Member States
should, in order to protect the acquired rights of beneficial owners, continue
to give credit or refunds as originally envisaged and should issue certificates
on request which would enable beneficial owners to ensure that withholding tax
is not levied.

(11)     Account should be taken of
the fact that, in view of structural differences, Austria has been allowed a
derogation under Article 2(2) of Directive 2014/107/EU with a maximum delay of
one year. On the adoption of that Directive, Austria announced that it would
not make full use of the derogation. Instead, Austria will exchange information
by September 2017, albeit on a limited set of accounts, while retaining the
derogation in other cases. Therefore, specific provision should be made to
ensure that Austria and the paying agents and economic operators established
therein continue to apply the provisions of Directive 2003/48/EC during the
period of derogation, except for those accounts which have been made subject to
Directive 2014/107/EU amending Directive 2011/16/EU.

(12)     This Directive respects the
fundamental rights and observes the principles which are recognised in
particular by the Charter of Fundamental Rights of the European Union,
including the right to the protection of personal data, and nothing in this
Directive shall reduce or eliminate those rights.

(13)     Since the objective of this
Directive, namely the repeal of Directive 2003/48/EC with the temporary
exceptions necessary to protect the acquired rights and to take account of the
derogation allowed to Austria under Directive 2014/107/EU, cannot be
sufficiently achieved by the Member States and can therefore, by reason of the
uniformity and effectiveness required, be better achieved at the level of the
Union, the Union may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on the European Union. In
accordance with the principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in order to achieve that
objective.

(14)     Directive 2003/48/EC should
therefore be repealed,

HAS ADOPTED THIS DIRECTIVE:

Article 1

1.           Directive 2003/48/EC is
repealed with effect from 1 January 2016.

However, the
following obligations under Directive 2003/48/EC, as amended by Directive 2006/98/EC[7], shall continue to
apply:

(a) the
obligations of Member States and economic operators established therein under
the second subparagraph of Article 4(2) of Directive 2003/48/EC shall continue
to apply until 5 October 2016 or until those obligations have been fulfilled;

(b) the
obligations of paying agents under Article 8 and of Member States of paying
agents under Article 9 shall continue to apply until 5 October 2016 or until
those obligations have been fulfilled;

(c) the
obligations of Member States of residence for tax purposes of the beneficial
owners under Article 13(2) shall continue to apply until 31 December 2016;

(d) the
obligations of Member States of residence for tax purposes of the beneficial
owners under Article 14, with regard to withholding tax levied during 2016 and
previous years, shall continue to apply until those obligations have been
fulfilled.

2.           Notwithstanding paragraph
1 of this Article, Directive 2003/48/EC, as amended by Directive 2006/98/EC,
shall continue to apply in its entirety with regard to Austria until 31
December 2016, with the exception of:

(a) the
obligations of Austria and the underlying obligations of the paying agents and
economic operators established therein under Article 12, which shall continue
to apply until 30 June 2017 or until those obligations have been fulfilled;

(b) the
obligations of Austria and economic operators established therein under the
second subparagraph of Article 4(2), which shall continue to apply until 30
June 2017 or until those obligations have been fulfilled;

(c) any
obligations of Austria and the underlying obligations of the paying agents
established therein arising directly or indirectly from the procedures referred
to in Article 13, which shall continue to apply until 30 June 2017 or until
those obligations have been fulfilled.

3.           Notwithstanding paragraph
2 of this Article, Directive 2003/48/EC, as amended by Directive 2006/98/EC,
shall not apply after 1 October 2016 to interest payments with regard to
accounts for which the reporting and due diligence obligations included in
Annexes I and II to Directive 2011/16/EU have been fulfilled and for which
Austria has communicated by automatic exchange the information referred to in
Article 8(3a) of Directive 2011/16/EU within the deadline laid down in Article
8(6)(b) of Directive 2011/16/EU.

Article 2

This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

Article 3

This Directive is addressed to the Member States.

Done at Brussels,

For
the Council

The
President

[1]               COUNCIL DIRECTIVE 2014/48/EU of 24 March 2014
amending Directive 2003/48/EC on taxation of savings income in the form of
interest payments (OJ L111, 15.4.2014, p. 50).

[2]               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 L359, 16.12.2014, 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]               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).

[5]               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).

[6]               Council Directive 2014/48/EU of 24 March 2014
amending Directive 2003/48/EC on taxation of savings income in the form of
interest payments (OJ L 111, 15.4.2014, p. 50).

[7]               Council Directive 2006/98/EC of 20 November 2006
adapting certain Directives in the field of taxation, by reason of the
accession of Bulgaria and Romania (OJ L 363, 20.12.2006, p. 129).