EN Official Journal of the European Union L 381/32

COUNCIL DECISION

of 29 November 2004

on the signing of the Agreement between the European Community and the Republic of San Marino providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments and the approval and signing of the accompanying Memorandum of Understanding

(2004/903/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 94 in conjunction with the first subparagraph of Article 300(2) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) On 16 October 2001, the Council authorised the Commission to negotiate with the Republic of San Marino an appropriate agreement for securing the adoption by the Republic of San Marino of measures equivalent to those to be applied within the Community to ensure effective taxation of savings income in the form of interest payments.

(2) The text of the Agreement which is the result of the negotiations duly reflects the negotiating directives issued by the Council. It is accompanied by a Memorandum of Understanding between the European Community and its Member States, and the Republic of San Marino.

(3) Subject to the adoption at a later date of a Decision on the conclusion of the Agreement, it is desirable to sign the two documents that were initialled on 12 July 2004 and have confirmation of the Council approval of the Memorandum of Understanding,

HAS DECIDED AS FOLLOWS:

Article 1

Subject to the adoption at a later date of a Decision on the conclusion of the Agreement between the European Community and the Republic of San Marino providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments, the President of the Council is hereby authorised to designate the persons empowered to sign, on behalf of the Community, the Agreement and the accompanying Memorandum of Understanding and the Letters from the European Community which have to be exchanged in accordance with Article 21(2) of the Agreement and the last paragraph of the Memorandum of Understanding.

The Memorandum of Understanding is approved by the Council.

The texts of the Agreement and of the Memorandum of Understanding are attached to this Decision.

Article 2

This Decision shall be published in the Official Journal of the European Union.

Done at Brussels, 29 November 2004. For the Council The President L. J. BRINKHORST

AGREEMENT

between the European Community and the Republic of San Marino providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments

THE EUROPEAN COMMUNITY, hereinafter referred to as ‘Community’,

and

THE REPUBLIC OF SAN MARINO, hereinafter referred to as San Marino,

both hereinafter referred to as ‘Contracting Party’ or ‘Contracting Parties’,

HAVE AGREED AS FOLLOWS:

Article 1

Aim

1. The purpose of this Agreement between the Community and San Marino is to consolidate and extend the existing close relations between the two Contracting Parties by establishing measures equivalent to those laid down in the Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments made to beneficial owners, individuals, resident for tax purposes in a Member State of the European Community, hereinafter referred to as the Directive.

2. San Marino shall take the necessary measures and specifically provide for provisions on procedures and penalties, to ensure that the tasks necessary for the implementation of this Agreement are carried out by paying agents established within its territory, irrespective of the place of establishment of the debtor of the debt-claim producing the interest.

Article 2

Definition of beneficial owner

1. For the purposes of this Agreement, ‘beneficial owner’ shall mean any individual who receives an interest payment or any individual for whom an interest payment is secured, unless such individual provides evidence that it was not received or secured for his or her own benefit, that is to say that:

(a) he or she acts as a paying agent within the meaning of Article 4, or

(b) he or she acts on behalf of a legal person, an investment fund or a comparable or equivalent body for common investments in securities, or

(c) he or she acts on behalf of another individual who is the beneficial owner and discloses to the paying agent the identity of that beneficial owner in accordance with Article 3.

2. Where a paying agent has information suggesting that the individual who receives an interest payment or for whom an interest payment is secured may not be the beneficial owner, and where neither paragraph 1(a) nor 1(b) applies to that individual, that agent shall take reasonable steps to establish the identity of the beneficial owner in accordance with Article 3. If the paying agent is unable to identify the beneficial owner, that agent shall treat the individual in question as the beneficial owner.

Article 3

Identity and residence of beneficial owners

In order to establish the identity and residence of the beneficial owner as defined in Article 2, the paying agent shall keep a record of the family name, the first name and the data concerning the address and residence status in accordance with the Republic of San Marino Law against usury and money-laundering. For contractual relations entered into, or transactions carried out in the absence of contractual relations, on or after 1 January 2004, for individuals presenting a passport or official identity card issued by a Member State of the European Union, hereinafter referred to as ‘Member State’, who declare themselves to be resident in a State other than a Member State or San Marino, residence shall be established by means of a tax residence certificate issued by the competent authority of the State in which the individual claims to be resident. Failing the presentation of such a certificate, the Member State which issued the passport or other official identity document shall be considered the State of residence.

Article 4

Definition of paying agent

For the purposes of this Agreement, ‘paying agent’ in San Marino shall mean banks under San Marino banking law, as well as economic operators including natural and legal persons resident or established in San Marino, partnerships and permanent establishments of foreign companies, which, even occasionally, accept, hold, invest or transfer assets of third parties or merely pay or secure interests in the course of their business.

Article 5

Definition of competent authority

1. For the purposes of this Agreement the ‘competent authorities of the Contracting Parties’ shall mean those listed in Annex I.

2. The ‘competent authorities of States not included in the Contracting Parties’ shall mean those authorities of such States which are competent for the purposes of bilateral or multilateral conventions, or, failing that, which are competent to issue certificates of residence for tax purposes.

Article 6

Definition of interest payment

1. For the purposes of this Agreement, ‘interest payment’ means:

(a) interest paid, or credited to an account, relating to debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures; penalty charges for late payments shall not be regarded as interest payments;

(b) interest accrued or capitalised at the sale, refund or redemption of the debt-claims referred to in (a);

(c) income deriving from interest payments either directly or through an entity referred to in Article 4(2) of the Directive, distributed by: (i) undertakings for collective investment or comparable or equivalent bodies for common investments in securities established within the territories referred to in Article 19, (ii) an entity domiciled in a Member State, which exercises the option under Article 4(3) of the Directive and informs the paying agent of this fact, (iii) undertakings for collective investment or comparable or equivalent bodies for common investment in securities established outside the territories referred to in Article 19;

(d) income realised upon the sale, refund or redemption of shares or units in the following undertakings and entities, if they invest directly or indirectly via other undertakings for collective investment or entities referred to below more than 40 % of their assets in debt-claims as referred to in (a): (i) undertakings for collective investment or comparable or equivalent bodies for common investments in securities established within the territories referred to in Article 19, (ii) an entity domiciled in a Member State, which exercises the option under Article 4(3), of the Directive and informs the paying agent of this fact, (iii) undertakings for collective investment or comparable or equivalent bodies for common investment in securities established outside the territories referred to in Article 19.

However, San Marino shall have the option of including income mentioned under (d) in the definition of interest only to the extent that such income corresponds to gains directly or indirectly deriving from interest payments within the meaning of (a) and (b).

2. As regards paragraphs 1(c) and (d), when a paying agent has no information concerning the proportion of the income which derives from interest payments, the total amount of the income shall be considered an interest payment.

3. As regards paragraph 1(d), when a paying agent has no information concerning the percentage of the assets invested in debt-claims or in shares or units as defined in that paragraph, that percentage shall be considered to be above 40 %. Where that agent cannot determine the amount of income realised by the beneficial owner, the income shall be deemed to correspond to the proceeds of the sale, refund or redemption of the shares or units.

4. As regards paragraphs 1(b) and (d), San Marino shall have the option of requiring paying agents in its territory to annualise the interest over a period of time which may not exceed one year, and treating such annualised interest as an interest payment even if no sale, redemption or refund occurs during that period.

5. By way of derogation from paragraphs 1(c) and (d), San Marino shall have the option of excluding from the definition of interest payment any income referred to in those paragraphs from undertakings or entities established within its territory where the investment in debt-claims referred to in paragraph 1(a) of such entities has not exceeded 15 % of their assets.

The exercise of such option by San Marino, once notified to the other Contracting Party, shall be binding on both Contracting Parties.

6. The percentage referred to in paragraph 1(d) and paragraph 3 shall after 31 December 2010 be 25 %.

7. The percentages referred to in paragraph 1(d) and in paragraph 5 shall be determined by reference to the investment policy as laid down in the fund rules or instruments of incorporation of the undertakings or entities concerned and, failing which, by reference to the actual composition of the assets of the undertakings or entities concerned.

Article 7

Withholding tax

1. Where the beneficial owner is resident in a Member State, San Marino shall levy a withholding tax at a rate of 15 % during the first three years from the date of application of this Agreement, 20 % for the subsequent three years and 35 % thereafter.

2. The paying agent shall levy withholding tax as follows:

(a) in the case of an interest payment within the meaning of Article 6(1)(a): on the amount of interest paid or credited;

(b) in the case of an interest payment within the meaning of Article 6(1)(b) or (d): on the amount of interest or income referred to in those paragraphs or by a levy of equivalent effect to be borne by the recipient on the full amount of the proceeds of the sale, redemption or refund;

(c) in the case of an interest payment within the meaning of Article 6(1)(c): on the amount of income referred to in that paragraph;

(d) where San Marino exercises the option under Article 6(4): on the amount of annualised interest.

3. For the purposes of paragraph 2(a) and (b), withholding tax is levied pro rata to the period of holding of the debt-claim by the beneficial owner. When the paying agent is unable to determine the period of holding on the basis of information in its possession, it shall treat the beneficial owner as having held the debt-claim throughout its period of existence unless he provides evidence of the date of acquisition.

4. Taxes other than that provided for in this Agreement on the same interest payment, and in particular the withholding taxes levied by San Marino on San Marino's source interest income, shall be credited against the amount of the withholding tax calculated in accordance with this Article.

5. The imposition of withholding tax by the paying agent located in the Republic of San Marino shall not preclude the Member State of residence for tax purposes of the beneficial owner from taxing the income in accordance with its domestic law. In cases where a taxpayer declares his or her interest income obtained from a paying agent located in San Marino to the tax authorities in the Member State of his or her residence, that interest income shall be subject to taxation there at the same rates as those applied to interest earned domestically.

Article 8

Revenue sharing

1. San Marino shall retain 25 % of its revenue from the withholding tax referred to in Article 7 and transfer 75 % of the revenue to the Member State of residence of the beneficial owner of the interest payment.

2. Such transfers shall take place in one instalment per Member State at the latest within a period of six months following the end of the tax year of San Marino.

3. San Marino shall take the necessary measures to ensure the proper functioning of the revenue sharing system.

Article 9

Voluntary disclosure

1. San Marino shall provide for a procedure which allows the beneficial owner as defined in Article 2 to avoid the withholding tax referred to in Article 7 by expressly authorising his paying agent established in San Marino to report the interest payments to the competent authority of that State. Such authorisation shall cover all interest payments made to, or secured for the immediate benefit of, the beneficial owner by that paying agent.

2. The minimum amount of information to be reported by the paying agent in case of express authorisation by the beneficial owner shall consist of:

(a) the identity and residence of the beneficial owner established in accordance with Article 3 of this Agreement, supplemented, when available, by the tax identification number allocated by the Member State where the beneficial owner has his or her residence;

(b) the name and address of the paying agent;

(c) the account number of the beneficial owner or, where there is none, identification of the debt-claim giving rise to the interest, and

(d) the amount of the interest payment established in accordance with Article 6 of this Agreement.

3. The competent authority of San Marino shall communicate the information referred to in paragraph 2 to the competent authority of the Member State of residence of the beneficial owner. Such communications shall be automatic and shall take place at least once a year, within six months following the end of the tax year in San Marino, for all interest payments made during that year.

Article 10

Elimination of double taxation

1. The Member State of residence for tax purposes of the beneficial owner shall ensure the elimination of any double taxation which might result from the imposition of the withholding tax referred to in Article 7, in accordance with the provisions of paragraphs 2 and 3.

2. If interest received by a beneficial owner has been subject to the withholding tax referred to in Article 7 in San Marino, the Member State of residence for tax purposes of the beneficial owner shall grant him or her a tax credit equal to the amount of the tax withheld, in accordance with its national law. Where this amount exceeds the amount of tax due in accordance with its national law on the total amount of the interest payment which has been subject to the withholding tax referred to in Article 7, the Member State of residence for tax purposes of the beneficial owner shall repay to him or her the excess amount of tax withheld.

3. If, in addition to the withholding tax referred to in Article 7, interest received by a beneficial owner has been subject to any other type of withholding tax and the Member State of residence for tax purposes of the beneficial owner grants a tax credit for such withholding tax in accordance with its national law or double taxation conventions, such other withholding tax shall be credited before the procedure in paragraph 2 is applied.

4. The Member State of residence for tax purposes of the beneficial owner may replace the tax credit mechanism referred to in paragraphs 2 and 3 by a refund of the withholding tax referred to in Article 7.

Article 11

Transitional provisions for negotiable debt securities

1. From the date of application of this Agreement for as long as at least one Member State also applies similar provisions, and until 31 December 2010 at the latest, domestic and international bonds and other negotiable debt securities which were first issued before 1 March 2001 or for which the original issuing prospectuses were approved before that date by the authorities which are competent for this purpose in the issuing State shall not be considered as debt-claims within the meaning of Article 6(1)(a), provided that no further issues of such negotiable debt securities are made on or after 1 March 2002.

However, for as long as at least one Member State also applies provisions similar to those of Article 7 of this Agreement the provisions of this Article shall continue to apply beyond 31 December 2010 in respect of such negotiable debt securities:

— which contain gross-up and early redemption clauses, and

— where the paying agent, as defined in Article 4, is established in San Marino, and

— where that paying agent pays interest directly to, or secures the payment of interest for the immediate benefit of, a beneficial owner resident in a Member State.

If and when all Member States cease to apply provisions similar to those of Article 7 of this Agreement, the provisions of this Article shall continue to apply only in respect of those negotiable securities:

— which contain gross-up and early redemption clauses, and

— where the issuer's paying agent is established in San Marino, and

— where that paying agent pays interest directly to, or secures the payment of interest for the immediate benefit of, a beneficial owner resident in a Member State.

If a further issue is made on or after 1 March 2002 of an aforementioned negotiable debt security issued by a Government or a related entity acting as a public authority or whose role is recognised by an international Agreement (listed in Annex II to this Agreement), the entire issue of such a security, consisting of the original issue and any further issue shall be considered a debt-claim within the meaning of Article 6(1)(a).

If a further issue is made on or after 1 March 2002 of an aforementioned negotiable debt security issued by any other issuer not covered by the fourth subparagraph, such further issue shall be considered a debt-claim within the meaning of Article 6(1)(a).

2. This Article shall not prevent San Marino and the Member States from continuing to levy a tax on revenues deriving from the aforementioned negotiable debt-claims in paragraph 1 in accordance with their national law.

Article 12

Other withholding taxes — Relationships with other agreements

1. This Agreement shall not preclude the parties from levying other types of withholding tax than that referred to in this Agreement in accordance with their national laws or double taxation conventions.

2. The provisions of the double taxation conventions between San Marino and the Member States shall not prevent the levying of the withholding tax for which this Agreement provides.

Article 13

Exchange of information on request

1. The competent authorities of San Marino and of any Member State shall exchange information on conduct constituting tax fraud under the laws of the requested State, or the like for income covered by this Agreement. ‘The like’ only includes offences with the same level of wrongfulness as is the case for tax fraud under the laws of the requested State, resulting in any prejudice for the taxation interests of the requesting State. In response to a duly justified request, the requested State shall provide information with respect to the conduct that the requesting State is investigating, or may investigate, on a criminal or non-criminal basis.

2. In determining whether information may be provided in response to a request, the requested State shall apply the statute of limitations applicable under the laws of the requesting State.

3. The requested State shall provide information where the requesting State has a reasonable suspicion that the conduct would constitute tax fraud or the like. The requesting State's reasonable suspicion of tax fraud or the like may be based on:

(a) documents, whether authenticated or not, and including but not limited to business records, books of account, or bank account information;

(b) testimonial information from the taxpayer;

(c) information obtained from an informant or other third person that has been independently corroborated or is otherwise likely to be credible; or

(d) circumstantial evidence.

4. The competent authority of the requesting State shall provide the following elements to the competent authority of the requested State when making a request for information under this Agreement to demonstrate the foreseeable relevance of the information to the request:

(a) the identity of the person under examination or investigation;

(b) a statement of the information sought including its nature and the form in which the requesting State wishes to receive the information from the requested State;

(c) the tax purpose for which the information is sought;

(d) grounds for believing that the information requested is held in the requested State or is in the possession or control of a person within the jurisdiction of the requested State;

(e) to the extent known, the name and address of any person believed to be in possession of the requested information;

(f) a statement that the request is in conformity with the law and administrative practices of the requesting State, that if the requested information was within the jurisdiction of the requesting State then the competent authority of the requesting State would be able to obtain the information under the laws of the requesting State or the normal course of administrative practice and that it is in conformity with this Agreement;

(g) a statement that the requesting State has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.

5. The competent authority of the requested State shall forward the requested information as promptly as possible to the requesting State.

6. San Marino shall enter into bilateral negotiations with each of the Member States in order to define individual categories of cases falling under ‘the like’ in accordance with the procedure of taxation applied by those States.

Article 14

Confidentiality

Any information received by a Contracting Party under this Agreement shall be treated as confidential and may be disclosed only to persons or authorities (including courts and administrative bodies) in the jurisdiction of the Contracting Party concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by this Agreement. Such persons or authorities shall use such information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. The information may not be disclosed to any other person or entity or authority or any other jurisdiction without the express written consent of the competent authority of the requested Party.

Article 15

Consultation and review

1. If any disagreement arises between the competent authority of San Marino and one or more of the other competent authorities listed in Annex I as to the interpretation or application of this Agreement, they shall endeavour to resolve this by mutual agreement. They shall immediately notify the Commission of the European Communities and the competent authorities of the other Member States of the results of their consultations. In relation to issues of interpretation the Commission may take part in consultations at the request of any of the competent authorities listed in Annex I.

2. The Contracting Parties shall consult each other at least every three years or at the request of either Contracting Party with a view to examining and, if deemed necessary by the Contracting Parties, improving the technical functioning of the Agreement and assessing international developments. The consultations shall be held within one month of the request or as soon as possible in urgent cases.

3. On the basis of such an assessment, the Contracting Parties may consult each other in order to examine whether changes to the Agreement are necessary taking into account international developments.

4. As soon as sufficient experience of the full implementation of this Agreement is available, the Contracting Parties shall consult each other in order to examine whether changes to this Agreement are necessary taking into account international developments.

5. For the purposes of the consultations referred to in paragraphs 1, 2 and 3, the Contracting Parties shall inform each other of possible developments which could impact on the proper functioning of this Agreement. This shall also include any relevant agreement between one of the Contracting Parties and a third State.

Article 16

Signing, entry into force and termination

1. This Agreement requires ratification or approval by the Contracting Parties in accordance with their own procedures. The Contracting Parties shall notify each other of the completion of these procedures. The Agreement shall enter into force on the first day of the second month following the last notification.

2. Subject to the fulfilment of its constitutional requirements concerning entering into international agreements and without prejudice to Article 17, San Marino shall effectively implement and apply this Agreement as from 1 July 2005 and notify the Community thereof.

3. This Agreement shall remain in force until terminated by a Contracting Party.

4. Either Contracting Party may terminate this Agreement by giving notice to the other. In such a case, the Agreement shall cease to have effect twelve months after the serving of notice.

Article 17

Application and suspension of application

1. The application of this Agreement shall be conditional on the adoption and implementation by the dependent or associated territories of the Member States mentioned in the report of the Council (Economic and Financial Affairs) to the European Council of Santa Maria da Feira of 19 and 20 June 2000, as well as by the United States of America, the Swiss Confederation, Andorra, Liechtenstein, and Monaco, respectively, of measures which conform with or are equivalent to those contained in the Directive or in this Agreement.

2. The Contracting Parties shall decide, by common accord, at least six months before the date referred to in Article 16(2), whether the condition set out in the above paragraph will be met having regard to the dates of entry into force of the relevant measures in the third States and dependent or associated territories concerned. If the Contracting Parties do not decide that the condition will be met, they shall, by common accord, adopt a new date for the purposes of Article 16(2).

3. The application of this Agreement or parts thereof may be suspended by either Contracting Party with immediate effect through notification to the other should the Directive or part of the Directive cease to be applicable either temporarily or permanently in accordance with Community law or in the event that a Member State should suspend the application of its implementing legislation.

4. Either Contracting Party may suspend the application of this Agreement through notification to the other in the event that one of the third States or territories referred to in paragraph 1 should subsequently cease to apply the measures referred to in that paragraph. Suspension of application shall take place no earlier than two months after notification. Application of this Agreement shall resume as soon as the measures are reinstated.

Article 18

Claims and final settlement

1. Should this Agreement be terminated or its application be suspended either in full or in part, the claims of individuals in accordance with Article 10 shall remain unaffected.

2. San Marino will, in such case, establish a final account by the end of the period of applicability of this Agreement and make a final payment to the Member States.

Article 19

Territorial scope

This Agreement shall apply, on the one hand, to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty and, on the other hand, to the territory of San Marino.

Article 20

Annexes

1. The Annexes shall form an integral part of this Agreement.

2. The list of competent authorities in Annex I may be amended simply by notification of the other Contracting Party by San Marino for the authority referred to in (a) therein, and by the Community for the other authorities.

The list of related entities in Annex II may be amended by mutual agreement.

Article 21

Languages

1. This Agreement shall be drawn in duplicate in Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish, each of these texts being equally authentic.

2. The Maltese language version shall be authenticated by the Contracting Parties on the basis of an Exchange of Letters. It shall also be authentic, in the same way as for the language versions referred to in paragraph 1.

EN FE DE LO CUAL, los plenipotenciarios abajo firmantes suscriben el presente Acuerdo. NA DŮKAZ ČEHOŽ připojili níže podepsaní zplnomocnění zástupci k této smlouvě své podpisy. TIL BEKRÆFTELSE HERAF har undertegnede befuldmægtigede underskrevet denne aftale. ZU URKUND DESSEN haben die unterzeichneten Bevollmächtigten ihre Unterschriften unter dieses Abkommen gesetzt. SELLE KINNITUSEKS on täievolilised esindajad käesolevale lepingule alla kirjutanud. ΣΕ ΠΙΣΤΩΣΗ ΤΩΝ ΑΝΩΤΕΡΩ, οι υπογράφοντες πληρεξούσιοι έθεσαν την υπογραφή τους κάτω από την παρούσα συμφωνία. IN WITNESS WHEREOF, the undersigned Plenipotentiaries have hereunto set their hands. EN FOI DE QUOI, les plénipotentiaires soussignés ont apposé leurs signatures au bas du présent accord. IN FEDE DI CHE, i plenipotenziari sottoscritti hanno apposto la propria firma in calce al presente accordo. TO APLIECINOT, attiecīgi pilnvarotas personas ir parakstījušas šo nolīgumu. TAI PALIUDYDAMI, šį Susitarimą pasirašė toliau nurodyti įgaliotieji atstovai. FENTIEK HITELÉÜL e megállapodást az alulírott meghatalmazottak alább kézjegyükkel látták el. B'XIEHDA TA' DAN, il-Plenipotenzjari hawn taħt iffirmati ffirmaw dan il-Ftehim. TEN BLIJKE WAARVAN de ondergetekende gevolmachtigden hun handtekening onder deze overeenkomst hebben geplaatst. W DOWÓD CZEGO, niżej podpisani pełnomocnicy złożyli swoje podpisy. EM FÉ DO QUE, os plenipotenciários abaixo assinados apuserem as suas assinaturas no final do presente Acordo. NA DÔKAZ ČOHO dolupodpísaní splnomocnení zástupcovia podpísali túto dohodu. V POTRDITEV TEGA so spodaj podpisani pooblaščenci podpisali ta sporazum. TÄMÄN VAKUUDEKSI allamainitut täysivaltaiset edustajat ovat allekirjoittaneet tämän sopimuksen. TILL BEVIS HÄRPÅ har undertecknade befullmäktigade undertecknat detta avtal. Hecho en Bruselas, el siete de diciembre del dos mil cuatro. V Bruselu dne sedmého prosince dva tisíce čtyři. Udfærdiget i Bruxelles den syvende december to tusind og fire. Geschehen zu Brüssel am siebten Dezember zweitausendundvier. Kahe tuhande neljanda aasta detsembrikuu seitsmendal päeval Brüsselis. Έγινε στις Βρυξέλλες, στις εφτά Δεκεμβρίου δύο χιλιάδες τέσσερα. Done at Brussels on the seventh day of December in the year two thousand and four. Fait à Bruxelles, le sept décembre deux mille quatre. Fatto a Bruxelles, addì sette dicembre duemilaquattro. Briselē, divi tūkstoši ceturtā gada septītajā decembrī. Pasirašyta du tūkstančiai ketvirtų metų gruodžio septintą dieną Briuselyje. Kelt Brüsszelben, a kettőezer negyedik év december hetedik napján. Magħmul fi Brussel fis-seba' jum ta' Diċembru tas-sena elfejn u erbgħa. Gedaan te Brussel, de zevende december tweeduizendvier. Sporządzono w Brukseli dnia siódmego grudnia roku dwutysięcznego czwartego. Feito em Bruxelas, em sete de Dezembro de dois mil e quatro. V Bruseli siedmeho decembra dvetisícštyri. V Bruslju, dne sedmega decembra leta dva tisoč štiri. Tehty Brysselissä seitsemäntenä päivänä joulukuuta vuonna kaksituhattaneljä. Som skedde i Bryssel den sjunde december tjugohundrafyra. Por la Comunidad Europea Za Evropské společenství For Det Europæiske Fællesskab Für die Europäische Gemeinschaft Euroopa Ühenduse nimel Για την Ευρωπαϊκή Κοινότητα For the European Community Pour la Communauté européenne Per la Comunità europea Eiropas Kopienas vārdā Europos bendrijos vardu az Európai Közösség részéről Għall-Komunità Ewropea Voor de Europese Gemeenschap W imieniu Wspólnoty Europejskiej Pela Comunidade Europeia Za Európske spoločenstvo za Evropsko skupnost Euroopan yhteisön puolesta På Europeiska gemenskapens vägnar Per la Repubblica di San Marino

ANNEX I

LIST OF COMPETENT AUTHORITIES OF THE CONTRACTING PARTIES

The competent authorities for the purposes of this Agreement are:

(a) in the Republic of San Marino: Il Segretario di Stato per le Finanze e il Bilancio or an authorised representative;

(b) in the Kingdom of Belgium: De Minister van Financiën/Le Ministre des Finances or an authorised representative;

(c) in the Czech Republic: Ministr financí or an authorised representative;

(d) in the Kingdom of Denmark: Skatteministeren or an authorised representative;

(e) in the Federal Republic of Germany: Der Bundesminister der Finanzen or an authorised representative;

(f) in Republic of Estonia: Rahandusminister or an authorised representative;

(g) in the Hellenic Republic: Ο Υπουργός Οικονομίας και Οικονομικών or an authorised representative;

(h) in the Kingdom of Spain: El Ministro de Economía y Hacienda or an authorised representative;

(i) in the French Republic: Le Ministre chargé du budget or an authorised representative;

(j) in Ireland: The Revenue Commissioners or their authorised representative;

(k) in the Italian Republic: Il Capo del Dipartimento per le Politiche Fiscali or an authorised representative;

(l) in the Republic of Cyprus: Υπουργός Οικονομικών or an authorised representative;

(m) in the Republic of Latvia: Finanšu ministrs or an authorised representative;

(n) in the Republic of Lithuania: Finansų ministras or an authorised representative;

(o) in the Grand Duchy of Luxembourg: Le Ministre des Finances or an authorised representative; however for the purposes of Article 13 the competent authority shall be ‘le Procureur Général d'Etat luxemburgeois’;

(p) in the Republic of Hungary: A pénzügyminiszter or an authorised representative;

(q) in the Republic of Malta: Il-Ministru responsabbli għall-Finanzi or an authorised representative;

(r) in the Kingdom of the Netherlands: De Minister van Financiën or an authorised representative;

(s) in the Republic of Austria: Der Bundesminister für Finanzen or an authorised representative;

(t) in the Republic of Poland: Minister Finansów or an authorised representative;

(u) in the Portuguese Republic: O Ministro das Finanças or an authorised representative;

(v) in the Republic of Slovenia: Minister za finance or an authorised representative;

(w) in the Slovak Republic: Minister financií or an authorised representative;

(x) in the Republic of Finland: Valtiovarainministeriö/Finansministeriet or an authorised representative;

(y) in the Kingdom of Sweden: Chefen för Finansdepartementet or an authorised representative;

(z) in the United Kingdom of Great Britain and Northern Ireland and in the European territories for whose external relations the United Kingdom is responsible: the Commissioners of Inland Revenue or their authorised representative and the competent authority in Gibraltar, which the United Kingdom will designate in accordance with the Agreed Arrangements relating to Gibraltar authorities in the context of EU and EC instruments and related treaties notified to the Member States and institutions of the European Union of 19 April 2000, a copy of which shall be notified to the Republic of San Marino by the Secretary-General of the Council of the European Union, and which shall apply to this Agreement.

ANNEX II

LIST OF RELATED ENTITIES

For the purposes of Article 11 of this Agreement, the following entities will be considered to be a ‘related entity acting as a public authority or whose role is recognised by an international treaty’:

ENTITIES WITHIN THE EUROPEAN UNION: Belgium — Vlaams Gewest (Flemish Region)' — Région wallonne (Walloon Region) — Région bruxelloise/Brussels Gewest (Brussels Region) Communauté française (French Community) — Vlaamse Gemeenschap (Flemish Community) — Deutschsprachige Gemeinschaft (German-speaking Community) Spain — Xunta de Galicia (Regional Executive of Galicia) — Junta de Andalucía (Regional Executive of Andalusia) — Junta de Extremadura (Regional Executive of Extremadura) — Junta de Castilla-La Mancha (Regional Executive of Castilla-La Mancha) — Junta de Castilla-León (Regional Executive of Castilla-León) — Gobierno Foral de Navarra (Regional Government of Navarre) — Govern de les Illes Balears (Government of the Balearic Islands) — Generalitat de Catalunya (Autonomous Government of Catalonia) — Generalitat de Valencia (Autonomous Government of Valencia) — Diputación General de Aragón (Regional Council of Aragon) — Gobierno de las Islas Canarias (Government of the Canary Islands) — Gobierno de Murcia (Government of Murcia) — Gobierno de Madrid (Government of Madrid) — Gobierno de la Comunidad Autónoma del País Vasco/Euzkadi (Government of the Autonomous Community of the Basque Country) — Diputación Foral de Guipúzcoa (Regional Council of Guipúzcoa) — Diputación Foral de Vizcaya/Bizkaia (Regional Council of Vizcaya) — Diputación Foral de Alava (Regional Council of Alava) — Ayuntamiento de Madrid (City Council of Madrid) — Ayuntamiento de Barcelona (City Council of Barcelona) — Cabildo Insular de Gran Canaria (Island Council of Gran Canaria) — Cabildo Insular de Tenerife (Island Council of Tenerife) — Instituto de Crédito Oficial (Public Credit Institution) — Instituto Catalán de Finanzas (Finance Institution of Catalonia) — Instituto Valenciano de Finanzas (Finance Institution of Valencia) Greece — Оργανισμός Тηλεπικοινωνιών Ελλάδος (National Telecommunications Organisation) — Оργανισμός Σιδηροδρόμων Ελλάδος (National Railways Organisation) — ημόσια Επιχείρηση Ηλεκτρισμού (Public Electricity Company) France — La Caisse d'amortissement de la dette sociale (CADES)(Social Debt Redemption Fund) — L'Agence française de développement (AFD)(French Development Agency) — Réseau Ferré de France (RFF)(French Rail Network) — Caisse Nationale des Autoroutes (CNA)(National Motorways Fund) — Assistance publique Hôpitaux de Paris (APHP)(Paris Hospitals Public Assistance) — Charbonnages de France (CDF)(French Coal Board) — Entreprise minière et chimique (EMC)(Mining and Chemicals Company) Italy — Regions — Provinces — Municipalities — Cassa Depositi e Prestiti (Deposits and Loans Fund) Latvia — Pašvaldības (Local governments) Poland — gminy (communes) — powiaty (districts) — województwa (provinces) — związki gmin (associations of communes) — związki powiatów (association of districts) — związki województw (association of provinces) — miasto stołeczne Warszawa (capital city of Warsaw) — Agencja Restrukturyzacji i Modernizacji Rolnictwa (Agency for Restructuring and Modernisation of Agriculture) — Agencja Nieruchomości Rolnych (Agricultural Property Agency) Portugal — Região Autónoma da Madeira (Autonomous Region of Madeira) — Região Autónoma dos Açores (Autonomous Region of Azores) — Municipalities Slovakia — mestá a obce (municipalities) — Železnice Slovenskej republiky (Slovak Railway Company) — Štátny fond cestného hospodárstva (State Road Management Fund) — Slovenské elektrárne (Slovak Power Plants) — Vodohospodárska výstavba (Water Economy Building Company)

INTERNATIONAL ENTITIES: — European Bank for Reconstruction and Development — European Investment Bank — Asian Development Bank — African Development Bank — World Bank/IBRD/IMF — International Finance Corporation — Inter-American Development Bank — Council of Europe Social Development Fund — Euratom — European Community — Corporación Andina de Fomento (CAF) (Andean Development Corporation) — Eurofima — European Coal & Steel Community — Nordic Investment Bank — Caribbean Development Bank The provisions of Article 11 are without prejudice to any international obligations that the Contracting Parties may have entered into with respect to the abovementioned international entities.

ENTITIES IN THIRD COUNTRIES: The entities that meet the following criteria: 1. the entity is clearly considered to be a public entity according to the national criteria; 2. such public entity is a non-market producer which administers and finances a group of activities, principally providing non-market goods and services, intended for the benefit of the community and which are effectively controlled by general government; 3. such public entity is a large and regular issuer of debt; 4. the State concerned is able to guarantee that such public entity will not exercise early redemption in the event of gross-up clauses.

MEMORANDUM OF UNDERSTANDING

between the European Community, the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the Republic of San Marino

THE EUROPEAN COMMUNITY, hereinafter referred to as ‘Community’,

THE KINGDOM OF BELGIUM,

THE CZECH REPUBLIC,

THE KINGDOM OF DENMARK,

THE FEDERAL REPUBLIC OF GERMANY,

THE REPUBLIC OF ESTONIA,

THE HELLENIC REPUBLIC,

THE KINGDOM OF SPAIN,

THE FRENCH REPUBLIC,

IRELAND,

THE ITALIAN REPUBLIC,

THE REPUBLIC OF CYPRUS,

THE REPUBLIC OF LATVIA,

THE REPUBLIC OF LITHUANIA,

THE GRAND DUCHY OF LUXEMBOURG,

THE REPUBLIC OF HUNGARY,

THE REPUBLIC OF MALTA,

THE KINGDOM OF THE NETHERLANDS,

THE REPUBLIC OF AUSTRIA,

THE REPUBLIC OF POLAND,

THE PORTUGUESE REPUBLIC,

THE REPUBLIC OF SLOVENIA,

THE SLOVAK REPUBLIC,

THE REPUBLIC OF FINLAND,

THE KINGDOM OF SWEDEN,

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

AND

THE REPUBLIC OF SAN MARINO, hereinafter referred to as ‘San Marino’,

HAVE AGREED AS FOLLOWS:

When an Agreement providing for measures equivalent to those laid down in the Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, hereinafter ‘the Directive’, was concluded, the European Community, the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the Republic of San Marino signed this Memorandum of Understanding supplementing this Agreement.

1. The signatories to this Memorandum of Understanding consider that the Agreement between San Marino and the Community providing for measures equivalent to those laid down in the Directive is a balanced and acceptable agreement protecting the interests of both Contracting Parties. Consequently, they shall apply in good faith the measures agreed and shall refrain from taking any unilateral action which might jeopardise this Agreement without reasonable cause. If a serious discrepancy is discovered between the scope of the Directive as adopted on 3 June 2003 and that of the Agreement, in particular with regard to Articles 4 and 6 of the latter, the Contracting Parties shall consult each other forthwith in accordance with Article 15(1) of the Agreement to ensure that the equivalent nature of the measures provided for by the Agreement is safeguarded. The signatories to this Memorandum of Understanding note that the definition of tax fraud for the purposes of Article 13 of the Agreement concerns only needs relating to the taxation of savings within the framework of this Agreement and is without prejudice to developments and/or decisions relating to tax fraud under other circumstances and in other forums.

2. During the transitional period provided for in the Directive, the Community shall enter into discussions with other important financial centres with a view to promoting the adoption by those jurisdictions of measures equivalent to those to be applied by the Community.

3. Considering that San Marino wishes to be further integrated in the European economic environment, and that it considers its full participation in the European banking and financial system as therefore appropriate and desirable, San Marino and the Community shall enter into consultations as soon as possible with a view to identifying the conditions for reaching a mutual recognition of the prudential measures and systems of the respective Parties on financial services, including insurance. In this context, San Marino, in order to preserve the proper functioning of the internal market in the sectors in question, undertakes to adopt and implement, in the relevant business sectors, the relevant existing, and future, acquis communautaire, including the relevant prudential rules and the supervision of the San Marino operators concerned. Any possible Agreement in this field may also provide that San Marino undertakes to implement other relevant Community rules, both current and those to be introduced in future, for example in matters of competition and taxation.

4. In this context of deepening relations, the conclusion of fiscal agreements with Member States of the European Union, hereinafter referred to as ‘Member States’, and San Marino's commitment to provide, within this framework, for information exchange in accordance with the standards of the OECD would enhance wider economic and tax cooperation. Recognising the efforts made by San Marino, consultations could take place between San Marino and the Member States with the objective of eliminating or reducing, on a bilateral basis, double taxation in relation to different forms of income.

5. The Community and San Marino shall also enter into consultations with a view to: — defining forms for simplifying the procedures laid down in their Agreement on Customs Union and Cooperation. In this regard, San Marino is ready to adopt computerised procedures even similar to the Intrastat system; — better exploring the existing possibilities for nationals and enterprises from the San Marino to participate in research and development Community programmes and activities.