1977L0799 — EN — 06.03.1992 — 004.001 — 1
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►B ►M2 COUNCILDIRECTIVE
of19December 1977
concerning mutual assistance by the competent authorities of the Member States in the field of
directandindirecttaxation
(77/799/EEC) ◄
(OJ L 336, 27.12.1977, p. 15)
Amended by:
Official Journal
No page date
►M1Council Directive 79/1070/EEC of 6 December 1979 L 331 8 27.12.1979
►M2Council Directive 92/12/EEC of 25 February 1992 L 76 1 23.3.1992
Amended by:
►A1Act of Accession of Greece L 291 17 19.11.1979
►A2Act of Accession of Spain and Portugal L 302 23 15.11.1985
Corrected by:
►C1Corrigendum, OJ L 346, 2.12.1981, p. 24 (79)
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COUNCILDIRECTIVE
of19December 1977
concerning mutual assistance by the competent authorities of the
Member Statesinthefieldofdirectandindirecttaxation
(77/799/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament(
1),
Having regard to the opinion of the Economic and Social
Committee(2),
Whereas practices of tax evasion and tax avoidance extending across
the frontiers of Member States lead to budget losses and violations of
the principle of fair taxation and are liable to bring about distortions ofcapital movements and of conditions of competition; whereas theytherefore affect the operation of the common market;
Whereas, for these reasons the Council adopted on 10 February 1975 a
resolution on the measures to be taken by the Community in order to
combat international tax evasion and avoidance(
3);
Whereas the international nature the problem means that national
measures, whose effect does not extend beyond national frontiers, are
insufficient; whereas collaboration between administrations on the basis
of bilateral agreements is also unable to counter new forms of taxevasion and avoidance, which are increasingly assuming a multina-tional character;
Whereas collaboration between tax administrations within the Commu-
nity should therefore be strengthened in accordance with common
principles and rules;
Whereas the Member States should, on request, exchange information
concerning particular cases; whereas the State so requested shouldmake the necessary enquiries to obtain such information;
Whereas the Member States should exchange, even without any
request, any information which appears relevant for the correct assess-ment of taxes on income and on capital, in particular where thereappears to be an artificial transfer of profits between enterprises in
different Member States or where such transactions are carried out
between enterprises in two Member States through a third country inorder to obtain tax advantages, or where tax has been or may beevaded or avoided for any reason whatever;
Whereas it is important that officials of the tax administration of one
Member State be allowed to be present in the territory of another
Member State if bothth e States concerned consider it desirable;
Whereas care must be taken to ensure that information provided in the
course of suchcollaboration is not disclosed to unauth orized persons,
so that the basic rights of citizens and enterprises are safeguarded;
whereas it is therefore necessary that the Member States receivingsuch information should not use it, without the authorization of theMember State supplying it, other than for the purposes of taxation orto facilitate legal proceedings for failure to observe the tax laws ofthe receiving State: whereas it is also necessary that the receiving1977L0799 — EN — 06.03.1992 — 004.001 — 2
(1) OJ No C 293, 13. 12. 1976, p 34.
(2) OJ No C 56, 7. 3. 1977, p. 66
(3) OJ No C 35, 14. 2. 1975, p. 1.▼M2
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States afford the information the same degree of confidentiality which
it enjoyed in the State which provided it, if the latter so requires;
Whereas a Member State which is called upon to carry out enquiries or
to provide information shall have the right to refuse to do so where itslaws or administrative practice prevent its tax administration from
carrying out thes enquiries or from collecting or using this information
for its own purposes, or where the provision of such information wouldbe contrary to public policy or would lead to the disclosure of acommercial, industrial or Professional secret or of a commercialprocess, or where the Member State for which the information isintended is unable for practical or legal reasons to provide similar
information;
Whereas collaboration between the Member States and the Commission
is necessary for the permanent study of cooperation procedures and the
pooling of experience in the fields considered, and in particular in thefield of the artifical transfer of profits within groups of enterprises,with the aim of improving those procedures and of preparing appro-priate Community rules,
HAS ADOPTED THIS DIRECTIVE:
Article 1
General provisions
1. In accordance with this Directive the competent authorities of the
Member State shall exchange any information that may enable them toeffect a correct assessment of taxes on income and capital and anyinformation relating to the assessment of the following indirect taxes:
— value added tax,
— excise duty on mineral oils,
— excise duty on alcohol and alcoholic beverages,
— excise duty on manufactured tobacco.
2. There shall be regarded as taxes on income and on capital, irre-
spective of the manner in which they are levied, all taxes imposed ontotal income, on total capital, or on elements of income or of capital,including taxes on gains from the disposal of movable or immovableproperty, taxes on the amounts of wages or salaries paid by enterprises,as well as taxes on capital appreciation.
3. The taxes referred to in paragraph 2 are at present, in particular:in Belgium:
lmpôt des personnes physiques/Personenbelasting,Impôt des sociétés/Vennootschapsbelasting,Impôt des personnes morales/Rechtspersonenbelasting,Impôt des non-résidents/Belasting der niet-verblijfhouders;
in Denmark:
Indkomstskat til staten,
Selsskabsskat,Den kommunale indkomstskat,Den amtskommunale indkomstskat,Folkepensionsbidragene,Sømandsskat,Den særlige indkomstskat,Kirkeskat,Formueskat til staten,Bidrag til dagpengefonden;1977L0799 — EN — 06.03.1992 — 004.001 — 3
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in Germany:
Einkommensteuer,Körperschaftsteuer,Vermögensteuer,Gewerbesteuer,Grundsteuer;
in France:
Impôt sur le revenu,Impôt sur les sociétés,Taxe professionnelle,Taxe foncière sur les propriétés bâties,Taxe foncière sur les propriétés non bâties;
in Ireland:
Income tax,Corporation tax,Capital gains tax,Wealthtax;
in Italy:
Imposta sul reddito delle persone fisiche,Imposta sul reddito delle persone giuridiche,Imposta locale sui redditi;
in Luxembourg:
impôt sur le revenu des personnes physiques,impôt sur le revenu des collectivités,impôt commercial communal,impôt sur la fortune,impôt foncier;
in the Netherlands:
Inkomstenbelasting,Vennootschapsbelasting,Vermogensbelasting;
in the United Kingdom:
Income tax,
Corporation tax,Capital gains tax,Petroleum revenue tax,Development land tax;
in Greece:
Φόρος είσοδήµατος φυσικών προσώπων,
Φόρος είσοδήµατος νοµικών προσώπων,
Φόρος ακινήτου περιουσίας;
in Spain:
Impuesto sobre la Renta de las Personas Físicas,Impuesto sobre Sociedades,Impuesto Extraordinario sobre el Patrimonio de las Personas
Físicas;1977L0799 — EN — 06.03.1992 — 004.001 — 4
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in Portugal:
Contribuição predial,Imposto sobre a indústria agrícola,
Contribuição industrial,
Imposto de capitais,Imposto profissional,
Imposto complementar,
Imposto de mais-valias,Imposto sobre o rendimento do petróleo,
Os adicionais devidos sobre os impostos precedentes.
4. Paragraph1 sh all also apply to any identical or similar taxes
imposed subsequently, whether in addition to or in place of the taxeslisted in paragraph 3. The competent authorities of the Member Statesshall inform one another and the Commission of the date of entry into
force of suchtaxes.
5. The expression ‘competent authority’ means:in Belgium:
De minister van financiën or an authorized representativeLe ministre des finances or an authorized representative
in Denmark:
Skatteministeren or an authorized representative
in Germany:
Der Bundesminister der Finanzen or an authorized representative
in France:
Le ministre de l'économie or an authorized representative
in Ireland:
The Revenue Commissioners or their authorized representative
Italy:
Il Ministro per le finanze or an authorized representative
in Luxembourg:
Le ministre des finances or an authorized representative
in the Netherlands:
De minister van financiën or an authorized representative
in the United Kingdom:
— The Commissioners of Customs and Excise or an authorized repre-
sentative for information required concerning value added tax and
excise duty
— The Commissioners of Irland Revenue or an authorized representa-
tive for all other information
in Greece:
Υπουργός Οικονοµικών or an authorized representative
in Spain:
El Ministro de Economía y Hacienda or an authorized representa-
tive
in Portugal:
O Ministro das Finanças or an authorized representative.1977L0799 — EN — 06.03.1992 — 004.001 — 5
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Article 2
Exchangeonrequest
1. The competent authority of a Member State may request the
competent authority of another Member State to forward the informa-
tion referred to in Article 1 (1) in a particular case. The competentauthority of the requested State need not comply with the request if itappears that the competent authority of the State making the requesthas not exhausted its own usual sources of information, which it couldhave utilized, according to the circumstances, to obtain the information
requested without running the risk of endangering the attainment of the
sought after result.
2. For the purpose of forwarding the information referred to in para-
graph 1, the competent authority of the requested Member State shall
arrange for the conduct of any enquiries necessary to obtain such infor-
mation.
Article 3
Automaticexchangeofinformation
For categories of cases which they shall determine under the consulta-
tion procedure laid down in Article 9, the competent authorities of theMember States shall regularly exchange the information referred to in
Article 1 (1) without prior request.
Article 4
Spontaneousexchangeofinformation
1. The competent authority of a Member State shall without prior
request forward the information referred to in Article 1 (1) of which ithas knowledge, to the competent authority of any other Member Stateconcerned, in the following circumstances:
(a) the competent authority of the one Member State has grounds for
supposing that there may be a loss of tax in the other MemberState;
(b) a person liable to tax obtains a reduction in or an exemption from
tax in the one Member State which would: give rise to an increase
in tax or to liability to tax in the other Member State;
(c) business dealings between a person liable to tax in a Member State
and a person liable to tax in another Member Staid are conducted
through one or more countries in such a way that a saving in taxmay result in one or the other Member State or in both:
(d) the competent authority of a Member State has grounds for
supposing that a saving of tax may result from artificial transfersof profits within groups of enterprises;
(e) information forwarded to the one Member State by the competent
authority of the other Member State has enabled information to beobtained which may be relevant in assessing liability to tax in the
latter Member State.
2. The competent authorities of the Member States may, under the
consultation procedure laid down in Article 9, extend the exchange ofinformation provided for in paragraph 1 to cases other than those speci-
fied therein.
3. The competent authoriries of the Member States may forward to
each other in any other case, without prior request, the informationreferred to in Article 1 (1) of which they have knowledge.1977L0799 — EN — 06.03.1992 — 004.001 — 6
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Article 5
Timelimitforforwardinginformation
The competent authority of a Member State which, under the preceding
Articles, is called upon to furnishinformation, sh all forward it asswiftly as possible. If it encounters obstacles in furnishing the informa-tion or if it refuses to furbish the information, it shall forthwith informthe requesting authority to this effect, indicating the nature of theobstacles or the reasons for its refusal.
Article 6
CollaborationbyofficialsoftheStateconcerned
For the purpose of applying the preceding provisions, the competent
authority of the Member State providing the information and the
competent authority of the Member State for which the information isintended may agree, under the consultation procedure laid down inArticle 9, to authorize the presence in the first Member State of offi-cials of the tax administration of the other Member State. The details
for applying this provision shall be determined under the same proce-
dure.
Article 7
Provisionsrelating tosecrecy
1. All information made known to a Member State under this Direc-
tive shall be kept secret in that State in the same manner as informationreceived under its domestic legislation.
In any case, suchinformation:
— may be made available only to the persons directly involved in the
assessment of the tax or in the administrative control of this assess-ment,
— may in addition be made known only in connection withjudicial
proceedings or administrative proceedings involving sanctionsundertaken witha view to, or relating to, th e making or reviewingthe tax assessment and only to persons who are directly involved in
suchproceedings; suchinformation may, h owever, be disclosed
during public hearings or in judgments if the competent authorityof the Member State supplying the information raises no objection,
— shall in no circumstances be used other than for taxation purposes
or in connection withjudicial proceedings or administrative
proceedings involving sanctions undertaken witha view to, or inrelation to, the making or reviewing the tax assessment.
2. Paragraph 1 shall not oblige a Member State whose legislation or
administrative practice lays down, for domestic purposes, narrowerlimits than those contained in the provisions of that paragraph, toprovide information if the State concerned does not undertake torespect those narrower limits.
3. Notwithstanding paragraph 1, the competent authorities of the
Member State providing the information may pemit it to be used forother purposes in the requesting State, if, under the legislation of the
informing State, the information could, in similar circumstances, be
used in the informing State for similar purposes.
4. Where a competent authority of a Member State considers that
information which it has received from the competent authority ofanother Member State is likely to be useful to the competent authorityof a third Member State, it may transmit it to the latter competentauthority with the agreement of the competent authority which suppliedthe information.1977L0799 — EN — 06.03.1992 — 004.001 — 7
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Article 8
Limitstoexchangeofinformation
1. This Directive shall impose no obligation to have enquiries
carried out or to provide information if the Member State, which
should furnish the information, would be prevented by its laws oradministrative practices from carrying out these enquiries or fromcollecting or using this information for its own purposes.
2. The provision of information may be refused where it would lead
to the disclosure of a commercial, industrial or professional secret or ofa commercial process, or of information whose disclosure would becontrary to public policy.
3. The competent authority of a Member State may refuse to
provide information where the State concerned is unable, for practicalor legal reasons, to provide similar information.
Article 9
Consultations
1. For the purposes of the implementation of this Directive, consul-
tations shall be held, if necessary in a Committee, between:
— the competent authorities of the Member States concerned at the
request of either, in respect of bilateral questions,
— the competent authorities of all the Member States and the
Commission, at the request of one of those authorities or theCommission, in so far as the matters involved are not solely ofbilateral interest.
2. The competent authorities of the Member States may communi-
cate directly with each other. The compctent authorities of theMember States may by mutual agreement permit authorities designatedby them: to communicate directly with each other in specified cases orin certain categories of cases.
3. Where the competent authorities make arrangements on bilateral
matters covered by this Directive other than as regards individualcases, they shall as soon as possible inform the Commission thereof.
The Commission shall in turn notify the competent authorities of the
other Member States.
Article 10
Poolingofexperience
The Member States shall, together with the Commission, constantly
monitor the cooperation procedure provided for in this Directive and
shall pool their experience, especially in the field of transfer pricingwithin groups of enterprises, with a view to improving such coopera-tion and, where appropriate, drawing up a body of rules in the fieldsconcerned.
Article 11
Applicabilityofwider-rangingprovisionsofassistance
The foregoing provisions shall not impede the fulfilment of any wider
obligations to exchange information which might flow from other legalacts.
Article 12
Finalprovisions
1. Member States shall bring into force the necessary laws, regula-
tions and administrative provisions in order to comply withth isDirective not later than 1 January 1979 and shall forthwith communi-cate them to the Commission.1977L0799 — EN — 06.03.1992 — 004.001 — 8
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2. Member States shall communicate to the Commission the texts of
any important provisions of national law which they subsequentlyadopt in the field covered by this Directive.
Article 13
This Directive is addressed to the Member States.1977L0799 — EN — 06.03.1992 — 004.001 — 9