European Parliament legislative resolution of 6 July 2017 on the proposal for a Council directive on Double Taxation Dispute Resolution Mechanisms in the European Union (COM(2016)0686 — C8-0035/2017 — 2016/0338(CNS))
Date: 2017-07-06
Institutions: Committee on Economic and Monetary Affairs, Committee on the Internal Market and Consumer Protection, European Parliament
Subjects: EU Member State, European tax cooperation, approximation of laws, corporation tax, double taxation, personal income tax, tax law




C_2018334EN.01026601.xml










19.9.2018   


EN


Official Journal of the European Union


C 334/266






P8_TA(2017)0314
Double taxation dispute resolution mechanisms in the EU *
European Parliament legislative resolution of 6 July 2017 on the proposal for a Council directive on Double Taxation Dispute Resolution Mechanisms in the European Union (COM(2016)0686 — C8-0035/2017 — 2016/0338(CNS))
(Special legislative procedure — consultation)
(2018/C 334/42)

The European Parliament,






—


having regard to the Commission proposal to the Council (COM(2016)0686),










—


having regard to Article 115 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C8-0035/2017),










—


having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,










—


having regard to its resolutions of 25 November 2015 (1) and of 6 July 2016 (2) on tax rulings and other measures similar in nature or effect,










—


having regard to Rule 78c of its Rules of Procedure,










—


having regard to the report of the Committee on Economic and Monetary Affairs (A8-0225/2017),












1.


Approves the Commission proposal as amended;












2.


Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union;












3.


Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;












4.


Asks the Council to consult Parliament again if it intends to substantially amend the Commission proposal;












5.


Calls on the Council to consider the possibility of progressively abrogating the Convention of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (3) after the adoption of the proposed Directive and thereby to strengthen a coordinated Union approach to dispute resolution through the proposed Directive;












6.


Instructs its President to forward its position to the Council, the Commission and the national parliaments.





Amendment 1


Proposal for a directive


Recital 1








Text proposed by the Commission




Amendment











(1)


Situations, in which different Member States tax the same income or capital twice can create serious tax obstacles for businesses operating cross border. They create an excessive tax burden for businesses and are likely to cause economic distortions and inefficiencies, 
as well as to
 have a negative impact on cross border investment and growth.












(1)




On the basis of the principle of fair and effective taxation, all businesses must pay their fair share of tax where profits and gains are generated, but double taxation and double non-taxation must be avoided.
 Situations in which different Member States tax the same income or capital twice can create serious tax obstacles
, mainly
 for 
small and medium-sized
 businesses operating cross border 
and thus have a negative impact on the proper functioning of the internal market
. They create an excessive tax burden
, a lack of legal certainty and unnecessary costs
 for businesses and are likely to cause economic distortions and inefficiencies. 
In addition, they
 have a negative impact on 
cross-border
 investment and growth.









Amendment 2


Proposal for a directive


Recital 1 a (new)








Text proposed by the Commission




Amendment





 










(1a)






On 25 November 2015, the European Parliament adopted a resolution on tax rulings and other measures similar in nature or effect, where it contested the usefulness of the Convention of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises

 (1a)

(the ‘Union Arbitration Convention’) and considered that that instrument should be reshaped and made more efficient, or replaced by a Union dispute resolution mechanism with more effective mutual agreement procedures. On 6 July 2016, the European Parliament adopted a resolution on tax rulings and other measures similar in nature or effect, where it stressed that the setting of a clear timeframe for dispute resolution procedures is key to enhancing the effectiveness of the systems.











Amendment 3


Proposal for a directive


Recital 1 b (new)








Text proposed by the Commission




Amendment





 










(1b)






On 16 December 2015, the European Parliament adopted a resolution with recommendations to the Commission on bringing transparency, coordination and convergence to corporate tax policies in the Union, where it called on the Commission to propose legislation to improve cross-border taxation disputes in the Union, focussing not only on cases of double taxation but also double non-taxation. It also called for clearer rules, more stringent timelines and transparency.











Amendment 4


Proposal for a directive


Recital 1 c (new)








Text proposed by the Commission




Amendment





 










(1c)






Attempts to eliminate double taxation have often led to ‘double non-taxation’, where, through the practice of base erosion and profit shifting, companies have managed to have their profits taxed in those Member States which have corporate taxes of close to zero. That ongoing practice distorts competition, damages domestic enterprises and undermines taxation, to the detriment of growth and jobs.











Amendment 5


Proposal for a directive


Recital 2








Text proposed by the Commission




Amendment











(2)


For this reason, it is necessary that mechanisms available in the Union ensure 
the
 resolution of double taxation disputes and the effective elimination of the double taxation at stake.












(2)




Current dispute resolution procedures are too long, costly and often do not result in an agreement, with some cases receiving no acknowledgement at all. Some businesses currently accept double taxation rather than spending money and time on burdensome procedures to eliminate double taxation.
 For this reason, it is 
essential
 that mechanisms available in the Union ensure 
an effective, rapid and enforceable
 resolution of double taxation disputes and the effective 
and timely
 elimination of the double taxation at stake
, with regular and effective communication to the taxpayer
.









Amendment 6


Proposal for a directive


Recital 3








Text proposed by the Commission




Amendment











(3)


The currently existing mechanisms provided for in bilateral 
tax
 treaties do not achieve the provision of a full relief from double taxation in a timely manner in all cases. The 
existing Convention on the elimination of double taxation in connection with the adjustments of profits of associated enterprises (90/436/EEC)

 (7)

(‘the
 Union Arbitration Convention’) has a limited scope as it is only applicable to transfer pricing disputes and attribution of profits to permanent establishments. The monitoring exercise carried out as part of the implementation of the Union Arbitration Convention has revealed some important shortcomings, in particular as regards access to the procedure 
and
 the length and the effective conclusion of the procedure.












(3)


The currently existing mechanisms provided for in bilateral 
double taxation
 treaties do not achieve the provision of a full relief from double taxation in a timely manner in all cases. The 
mechanisms provided for in those treaties are, in many cases lengthy, costly, difficult to access and do not always lead to agreement.
 The Union Arbitration Convention has a limited scope as it is only applicable to transfer pricing disputes and attribution of profits to permanent establishments. The monitoring exercise carried out as part of the implementation of the Union Arbitration Convention has revealed some important shortcomings, in particular as regards access to the procedure
, a lack of legal remedies,
 the length and the 
absence of a final binding
 effective conclusion of the procedure. 
Those shortcomings represent an obstacle to investment and should be eliminated.











Amendment 7


Proposal for a directive


Recital 3 a (new)








Text proposed by the Commission




Amendment





 










(3a)






In order to shape a fair, clear and stable tax environment and to reduce taxation disputes within the internal market, at least some minimum convergence in corporate tax policies is required. The introduction of a common consolidated corporate tax base as proposed by the Commission

 (1a)

is the most effective way of eliminating the risk of double corporate taxation.











Amendment 8


Proposal for a directive


Recital 4








Text proposed by the Commission




Amendment











(4)


With a view to create a fairer tax environment, rules on transparency need to be enhanced and anti-avoidance measures need to be strengthened. At the same time in the spirit of a fair taxation system, it is necessary to ensure that taxpayers are not taxed twice on the same income and that mechanisms on dispute resolution are comprehensive, effective and sustainable. Improvements to double taxation dispute resolution mechanisms are also 
necessary
 to respond to a risk of increased number of double or multiple taxation disputes with potentially high amounts being at stake due to more regular and focused audit practices established by tax administrations.












(4)


With a view to create a fairer tax environment 
for enterprises active in the Union
, rules on transparency need to be enhanced and anti-avoidance 
and tax evasion
 measures need to be strengthened 
nationally, at Union level and globally
. 
Avoiding double non-taxation must remain a priority of the Union.
 At the same time in the spirit of a fair taxation system, it is necessary to ensure that taxpayers are not taxed twice on the same income and that mechanisms on dispute resolution are comprehensive, effective and sustainable. Improvements to double taxation dispute resolution mechanisms are also 
vital in order
 to respond to a risk of increased number of double or multiple taxation disputes with potentially high amounts being at stake due to more regular and focused audit practices established by tax administrations.









Amendment 9


Proposal for a directive


Recital 5








Text proposed by the Commission




Amendment











(5)


The introduction of an effective and efficient framework for resolution of tax disputes which ensures legal certainty and 
a business friendly environment for
 investments is therefore a crucial action in order to achieve a fair and efficient corporate tax system in the Union. 
The double taxation dispute resolution mechanisms should also create a harmonised and transparent framework for solving double taxation issues and as such provide benefits to all taxpayers.














(5)


The introduction of an effective and efficient framework for resolution of tax disputes which ensures legal certainty and 
supports
 investments is therefore a crucial action in order to achieve a fair and efficient corporate tax system in the Union. 
Member States should dedicate an adequate level of human, technical and financial resources to competent authorities for this purpose.











Amendment 10


Proposal for a directive


Recital 5 a (new)








Text proposed by the Commission




Amendment





 










(5a)






The Union has the potential to become a model and a global leader in tax transparency and coordination. The double taxation dispute resolution mechanisms should therefore also create a harmonised and transparent framework for solving double taxation issues and as such provide benefits to all taxpayers. Unless proven by the taxpayers concerned that some sensitive trade, industrial or professional information in the decision should not be published, all final decisions should be published in their entirety and be made available by the Commission in a common data format also on a centrally managed webpage. Publication of final decisions is in the interest of the public as it improves understanding of how the rules should be interpreted and applied. This Directive will only realise its full potential if similar rules are also implemented in third countries. Therefore, the Commission should also advocate the establishment of binding dispute resolution procedures at international level.











Amendment 11


Proposal for a directive


Recital 5 b (new)








Text proposed by the Commission




Amendment





 










(5b)






An effective and efficient framework should include the possibility for Member States to propose alternative dispute resolution mechanisms that take better account of the specific characteristics of small and medium-sized enterprises (SMEs) and can result in lower costs, less bureaucracy, more efficiency and the faster elimination of double taxation.











Amendment 12


Proposal for a directive


Recital 6








Text proposed by the Commission




Amendment











(6)


The elimination of double taxation should be achieved through a procedure 
under which, as
 a first step, the case is submitted to the tax authorities of the Member States concerned with a view to settling the dispute by Mutual Agreement Procedure. In the absence of such agreement within a certain time frame, the case should be submitted to an Advisory Commission or Alternative Dispute Resolution Commission, consisting both of representatives of the tax authorities concerned and of independent persons of standing. The tax authorities should take a final binding decision by reference to the opinion of 
an
 Advisory Commission or Alternative Dispute Resolution Commission.












(6)


The elimination of double taxation should be achieved through a procedure 
that is simple to use. As
 a first step, the case is submitted to the tax authorities of the Member States concerned with a view to settling the dispute by Mutual Agreement Procedure. In the absence of such agreement within a certain time frame, the case should be submitted to an Advisory Commission or 
an
 Alternative Dispute Resolution Commission, consisting both of representatives of the tax authorities concerned and of independent persons of standing 
whose names will appear in a publicly available list of independent persons of standing
. The tax authorities should take a final binding decision by reference to the opinion of 
the
 Advisory Commission or Alternative Dispute Resolution Commission.









Amendment 13


Proposal for a directive


Recital 7 a (new)








Text proposed by the Commission




Amendment





 










(7a)






The procedure for the settlement of double taxation disputes provided for in this Directive consists, among other options, of dispute resolution for the taxpayer. That includes mutual agreement procedures under bilateral double tax conventions or under the Union Arbitration Convention. The dispute resolution procedure laid down in this Directive should be prioritised over the other options, as it provides for a coordinated, Union-wide approach to dispute resolution, including clear and enforceable rules, a duty to eliminate double taxation and a fixed timeframe.











Amendment 14


Proposal for a directive


Recital 7 b (new)








Text proposed by the Commission




Amendment





 










(7b)






At present, it is unclear how this Directive relates to existing arbitration provisions in bilateral tax agreements and the existing Union Arbitration Convention. Therefore, the Commission should clarify those relations so that taxpayers can, if applicable, choose the procedure best fit for purpose.











Amendment 15


Proposal for a directive


Recital 7 c (new)








Text proposed by the Commission




Amendment





 










(7c)






A large number of double taxation cases involve third countries. Therefore, the Commission should strive to create a global framework, preferably within the context of the OECD. Until such OECD framework has been realised, the Commission should aim for a mandatory, instead of the current voluntary, and binding agreement procedure for all cases of potential cross-border double taxation.











Amendment 16


Proposal for a directive


Recital 10 a (new)








Text proposed by the Commission




Amendment





 










(10a)






The scope of this Directive should be extended as soon as possible. The Directive only provides a framework for the resolution of disputes regarding the double taxation of business profits. Disputes on the double taxation of income, such as pensions and salaries, have not been brought under its scope, while the impact on individuals can be significant. A different interpretation of a tax agreement by Member States can lead to economic double taxation, for example if one Member State interprets a source of income as salary while the other Member State interprets the same source of income as profit. Therefore, differences of interpretation between Member States in relation to the taxation of income should also be brought under the scope of this Directive.











Amendment 17


Proposal for a directive


Recital 11








Text proposed by the Commission




Amendment











(11)


The Commission should review the application of this Directive after a period of five years 
and
 Member States should provide the Commission with appropriate input to support this review,












(11)


The Commission should review the application of this Directive after a period of five years
, including a determination of whether the Directive should continue to be applied or amended.
 Member States should provide the Commission with appropriate input to support this review
. At the end of its review, the Commission should present a report to the European Parliament and the Council, including an assessment of the extension of the scope of this Directive to cover all cross-border double taxation situations and double non-taxation, and if appropriate, an amending legislative proposal
,









Amendment 18


Proposal for a directive


Article 1 — paragraph 4








Text proposed by the Commission




Amendment





This Directive shall not preclude the application of national legislation or provisions of international agreements where it is necessary to prevent tax evasion, tax fraud or abuse.


This Directive shall not preclude the application of national legislation or provisions of international agreements where it is necessary to prevent tax evasion 
and avoidance
, tax fraud or abuse.





Amendment 19


Proposal for a directive


Article 3 — paragraph 1








Text proposed by the Commission




Amendment






1.   Any taxpayer subject to double taxation shall be entitled to submit a complaint requesting the resolution of the double taxation to each of the competent authorities of the Member States concerned within three years from the receipt of the first notification of the action resulting in double taxation, whether or not it uses the remedies available in the national law of any of the Member States concerned. The taxpayer shall indicate in its complaint to each respective competent authority which other Member States are concerned.




1.   Any taxpayer subject to double taxation shall be entitled to submit a complaint requesting the resolution of the double taxation to each of the competent authorities of the Member States concerned within three years from the receipt of the first notification of the action resulting in double taxation, whether or not it uses the remedies available in the national law of any of the Member States concerned. The taxpayer shall 
submit the complaint to both competent authorities of the Member States concerned at the same time and
 indicate in its complaint to each respective competent authority which other Member States are concerned. 
The Commission shall host a central contact point in all official languages of the Union, which is easily accessible to the public with up-to-date contact information for each competent authority and a full overview of applicable Union legislation and tax treaties.








Amendment 20


Proposal for a directive


Article 3 — paragraph 2








Text proposed by the Commission




Amendment






2.   
The
 competent 
authorities
 shall acknowledge receipt of the complaint 
within one month from the receipt of the complaint. They shall also inform
 the competent authorities of the other Member States concerned 
on
 the receipt of the complaint.




2.   
Each
 competent 
authority
 shall acknowledge receipt of the complaint 
in writing and notify
 the competent authorities of the other Member States concerned 
within two weeks of
 receipt of the complaint.






Amendment 21


Proposal for a directive


Article 3 — paragraph 3 — point a








Text proposed by the Commission




Amendment











(a)


name, address, tax identification number and other information necessary for identification of the taxpayer(s) who presented the complaint to the competent authorities and of any other taxpayer directly affected;












(a)


name, address, tax identification number and other information necessary for identification of the taxpayer(s) who presented the complaint to the competent authorities and of any other taxpayer directly affected 
to the best of the complainant's knowledge
;









Amendment 22


Proposal for a directive


Article 3 — paragraph 3 — point d








Text proposed by the Commission




Amendment













(d)






applicable national rules and double taxation treaties;










deleted







Amendment 23


Proposal for a directive


Article 3 — paragraph 3 — point e — point iii








Text proposed by the Commission




Amendment











(iii)


a commitment by the taxpayer to respond as completely and quickly as possible to all appropriate requests made by a competent authority and provide any documentation at the request of the competent authorities;












(iii)


a commitment by the taxpayer to respond as completely and quickly as possible to all appropriate requests made by a competent authority and provide any documentation at the request of the competent authorities 
with the competent authorities giving due consideration to any constraints on access to requested documents and any external time delays
;









Amendment 24


Proposal for a directive


Article 3 — paragraph 3 — point f








Text proposed by the Commission




Amendment











(f)


any specific additional information requested by the competent authorities.












(f)


any specific additional information requested by the competent authorities 
relevant to the taxation dispute
.









Amendment 25


Proposal for a directive


Article 3 — paragraph 5








Text proposed by the Commission




Amendment






5.   The competent authorities of the Member States concerned shall take a decision on the acceptance and admissibility of the complaint of a taxpayer within 
six
 months of the receipt 
thereof
. 
The competent authorities shall
 inform 
the taxpayers
 and the competent authorities of the other Member States of their decision.




5.   The competent authorities of the Member States concerned shall take a decision on the acceptance and admissibility of the complaint of a taxpayer within 
three
 months of the receipt 
of the complaint and
 inform 
that taxpayer
 and the competent authorities of the other Member States 
in writing
 of their decision 
within two weeks
.






Amendment 26


Proposal for a directive


Article 4 — paragraph 1 — subparagraph 1








Text proposed by the Commission




Amendment





Where the competent authorities of the Member States concerned decide to accept the complaint according to Article 3(5), they shall endeavour to eliminate the double taxation by mutual agreement procedure within 
two years
 starting from the last notification of one of the Member States’ decision on the acceptance of the complaint.


Where the competent authorities of the Member States concerned decide to accept the complaint according to Article 3(5), they shall endeavour to eliminate the double taxation by mutual agreement procedure within 
one year
 starting from the last notification of one of the Member States’ decision on the acceptance of the complaint.





Amendment 27


Proposal for a directive


Article 4 — paragraph 1 — subparagraph 2








Text proposed by the Commission




Amendment





The period of 
two years
 referred to in the first subparagraph may be extended by up to 
six
 months at the request of a competent authority of a Member State concerned, if the requesting competent authority provides justification it in writing. That extension shall be subject to the acceptance by taxpayers and the other competent authorities.


The period of 
one year
 referred to in the first subparagraph may be extended by up to 
three
 months at the request of a competent authority of a Member State concerned, if the requesting competent authority provides justification it in writing. That extension shall be subject to the acceptance by taxpayers and the other competent authorities.





Amendment 28


Proposal for a directive


Article 4 — paragraph 3








Text proposed by the Commission




Amendment






3.   Once the competent authorities of the Member States have reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall transmit this agreement to the taxpayer as a decision which is binding on the authority and enforceable by the taxpayer, subject to the taxpayer renouncing the right to any domestic remedy. That decision shall be implemented irrespective of any time limits prescribed by the national law of the Member States concerned.




3.   Once the competent authorities of the Member States have reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall 
within five days
 transmit this agreement to the taxpayer as a decision which is binding on the authority and enforceable by the taxpayer, subject to the taxpayer renouncing the right to any domestic remedy. That decision shall be 
immediately
 implemented irrespective of any time limits prescribed by the national law of the Member States concerned.






Amendment 29


Proposal for a directive


Article 4 — paragraph 4








Text proposed by the Commission




Amendment






4.   Where the competent authorities of the Member States concerned have not reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall inform the taxpayers indicating the reasons for the failure to reach agreement.




4.   Where the competent authorities of the Member States concerned have not reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall inform the taxpayers 
within two weeks
 indicating the reasons for the failure to reach agreement 
and informing the taxpayers of their options for appeal, with relevant contact information for the appeal bodies
.






Amendment 30


Proposal for a directive


Article 5 — paragraph 1








Text proposed by the Commission




Amendment






1.   The competent authorities of the Member States concerned may decide to reject the complaint where the complaint is inadmissible or there is no double taxation or the three-year period set forth in Article 3(1) is not respected.




1.   The competent authorities of the Member States concerned may decide to reject the complaint where the complaint is inadmissible or there is no double taxation or the three-year period set forth in Article 3(1) is not respected. 
The competent authorities shall inform the taxpayer of the reasons for the rejection of the complaint.








Amendment 31


Proposal for a directive


Article 5 — paragraph 2








Text proposed by the Commission




Amendment






2.   Where the competent authorities of the Member States concerned have not taken a decision on the complaint within 
six
 months following receipt of a complaint by a taxpayer, the complaint shall be deemed to be rejected.




2.   Where the competent authorities of the Member States concerned have not taken a decision on the complaint within 
three
 months following receipt of a complaint by a taxpayer, the complaint shall be deemed to be rejected 
and the taxpayer shall be notified within one month of that three-month period
.






Amendment 32


Proposal for a directive


Article 5 — paragraph 3








Text proposed by the Commission




Amendment






3.   In 
case
 of rejection of the complaint, the taxpayer shall be entitled to appeal against the decision of the competent authorities of the Member States concerned in accordance with national rules.




3.   In 
the event
 of rejection of the complaint, the taxpayer shall be entitled to appeal against the decision of the competent authorities of the Member States concerned in accordance with national rules. 
The taxpayer is entitled to make an appeal to either competent authority. The competent authority to whom the appeal is made shall inform the other competent authority of the existence of the appeal and the two competent authorities shall coordinate when processing the appeal. In the case of SMEs, if the appeal is successful, the financial burden shall be borne by the competent authority that initially rejected the complaint.








Amendment 33


Proposal for a directive


Article 6 — paragraph 2 — subparagraph 1








Text proposed by the Commission




Amendment





The Advisory Commission shall adopt a decision on the admissibility and acceptance of the complaint within 
six
 months from the date of notification of the last decision rejecting the complaint under Article 5(1) by the competent authorities of the Member States concerned. By default of any decision notified 
in
 the 
six
 month period, the complaint is deemed to be rejected.


The Advisory Commission shall adopt a decision on the admissibility and acceptance of the complaint within 
three
 months from the date of notification of the last decision rejecting the complaint under Article 5(1) by the competent authorities of the Member States concerned. By default of any decision notified 
within
 the 
three-
month period, the complaint is deemed to be rejected.





Amendment 34


Proposal for a directive


Article 6 — paragraph 2 — subparagraph 2








Text proposed by the Commission




Amendment





Where the Advisory Commission confirms the existence of double taxation and the admissibility of the complaint, the mutual agreement procedure provided for in Article 4 shall be initiated at the request of one of the competent authorities. The competent authority concerned shall notify the Advisory Commission, the other competent authorities concerned and the taxpayers of that request. The period of 
two years
 provided for in Article 4(1) shall start from the date of the decision taken by the Advisory Commission on the acceptance and admissibility of the complaint.


Where the Advisory Commission confirms the existence of double taxation and the admissibility of the complaint, the mutual agreement procedure provided for in Article 4 shall be initiated at the request of one of the competent authorities. The competent authority concerned shall notify the Advisory Commission, the other competent authorities concerned and the taxpayers of that request. The period of 
one year
 provided for in Article 4(1) shall start from the date of the decision taken by the Advisory Commission on the acceptance and admissibility of the complaint.





Amendment 35


Proposal for a directive


Article 6 — paragraph 3 — subparagraph 1








Text proposed by the Commission




Amendment







The Advisory Commission shall be set up by
 competent authorities of the Member States concerned 
where they
 have failed to reach an agreement to eliminate the double taxation under the mutual agreement procedure within the time limit provided for in Article 4(1).




If the
 competent authorities of the Member States concerned have failed to reach an agreement to eliminate the double taxation under the mutual agreement procedure within the time limit provided for in Article 4(1)
, the Advisory Commission shall deliver an opinion on the elimination of double taxation pursuant to Article 13(1)
.





Amendment 36


Proposal for a directive


Article 6 — paragraph 4 — subparagraph 1








Text proposed by the Commission




Amendment





The Advisory Commission shall be set up no later than 
fifty calendar days
 after the end of the 
six
-
month
 period provided for in Article 3(5), if the Advisory Commission is set up in accordance with paragraph 1.


The Advisory Commission shall be set up no later than 
one month
 after the end of the 
three
-
month
 period provided for in Article 3(5), if the Advisory Commission is set up in accordance with paragraph 1.





Amendment 37


Proposal for a directive


Article 6 — paragraph 4 — subparagraph 2








Text proposed by the Commission




Amendment





The Advisory Commission shall be set up no later than 
fifty calendar days
 after the end of the period provided for in Article 4(1) if the Advisory Commission is set up in accordance with paragraph 2.


The Advisory Commission shall be set up no later than 
one month
 after the end of the period provided for in Article 4(1) if the Advisory Commission is set up in accordance with paragraph 2.





Amendment 38


Proposal for a directive


Article 7 — paragraph 1 — subparagraph 2








Text proposed by the Commission




Amendment





Where the competent authority of a Member State has failed to appoint at least one independent person of standing and its substitute, the taxpayer may request the competent court in that Member State to appoint an independent person and the substitute from the list referred to in Article 8(4).


Where the competent authority of a Member State has failed to appoint at least one independent person of standing and its substitute, the taxpayer may request the competent court in that Member State to appoint an independent person and the substitute from the list referred to in Article 8(4) 
within three months
.





Amendment 39


Proposal for a directive


Article 7 — paragraph 1 — subparagraph 3








Text proposed by the Commission




Amendment





If the competent authorities of all Member States concerned have failed to do so, the taxpayer may request the competent courts of each Member State to appoint the two independent persons of standing in accordance with the second and third subparagraphs. The thus appointed independent persons of standing shall appoint the chair by drawing lots from the list of the independent persons who qualify as chair according to Article 8(4).


If the competent authorities of all Member States concerned have failed to do so, the taxpayer may request the competent courts of each Member State to appoint the two independent persons of standing in accordance with the second and third subparagraphs 
of Article 8(4)
. The 
Commission shall make details of the competent courts of each Member State clearly available in a central information point on its website in all official languages of the Union. The
 thus appointed independent persons of standing shall appoint the chair by drawing lots from the list of the independent persons who qualify as chair according to Article 8(4).





Amendment 40


Proposal for a directive


Article 7 — paragraph 2








Text proposed by the Commission




Amendment






2.   Appointment of the independent persons and their substitutes according to paragraph 1 shall be referred to a competent court of a Member State only after the end of the 
fifty-day
 period referred to in Article 6(4) and within two weeks after the end of that period.




2.   Appointment of the independent persons and their substitutes according to paragraph 1 shall be referred to a competent court of a Member State only after the end of the 
one month
 period referred to in Article 6(4) and within two weeks after the end of that period.






Amendment 41


Proposal for a directive


Article 7 — paragraph 3








Text proposed by the Commission




Amendment






3.   The competent court shall adopt a decision according to paragraph 1 and notify it to the applicant. The applicable procedure for the competent court to appoint the independent persons when the Member States fail to appoint them shall be the same as the one applicable under national rules in matters of civil and commercial arbitration when courts appoint arbitrators in cases where parties fail to agree in this respect. The competent court shall also inform the competent authorities having initially failed to set up the Advisory Commission. This Member State shall be entitled to appeal a decision of the court, provided they have the right to do so under their national law. In case of rejection, the applicant shall be entitled to appeal against the decision of the court in accordance with the national procedural rules.




3.   The competent court shall adopt a decision according to paragraph 1 and notify it to the applicant 
within one month
. The applicable procedure for the competent court to appoint the independent persons when the Member States fail to appoint them shall be the same as the one applicable under national rules in matters of civil and commercial arbitration when courts appoint arbitrators in cases where parties fail to agree in this respect. The competent court shall also inform the competent authorities having initially failed to set up the Advisory Commission. This Member State shall be entitled to appeal a decision of the court, provided they have the right to do so under their national law. In case of rejection, the applicant shall be entitled to appeal against the decision of the court in accordance with the national procedural rules.






Amendment 42


Proposal for a directive


Article 8 — paragraph 1 — subparagraph 1 — point c








Text proposed by the Commission




Amendment











(c)


one or two independent persons of standing who shall be appointed by each competent authority from the list of persons referred to in paragraph 4.












(c)


one or two independent persons of standing who shall be appointed by each competent authority from the list of persons referred to in paragraph 4
, excluding the persons proposed by their own Member State
.









Amendment 43


Proposal for a directive


Article 8 — paragraph 1 — subparagraph 3 a (new)








Text proposed by the Commission




Amendment





 




Member States may decide to appoint the representatives referred to in point (b) of the first subparagraph on a permanent basis.







Amendment 44


Proposal for a directive


Article 8 — paragraph 3 — point b








Text proposed by the Commission




Amendment











(b)


where that person has, or has had, a large holding in or is or has been an employee of or adviser to one or each of the taxpayers;












(b)


where that person 
or a relative of that person
 has, or has had, a large holding in or is or has been an employee of or adviser to one or each of the taxpayers;









Amendment 45


Proposal for a directive


Article 8 — paragraph 4 — subparagraph 2








Text proposed by the Commission




Amendment





Independent persons of standing must be nationals of a Member State and resident within the Union. They must be competent 
and
 independent.


Independent persons of standing must be nationals of a Member State and resident within the Union
, preferably officials and civil servants working in the field of tax law or members of an Administrative Court
. They must be competent, independent
, impartial and of high integrity
.





Amendment 46


Proposal for a directive


Article 8 — paragraph 4 — subparagraph 3








Text proposed by the Commission




Amendment





Member States shall notify to the Commission the names of the independent persons of standing they have nominated. Member States 
may
 specify in the notification which of the five persons they have nominated can be appointed as a chair. They shall also provide the Commission with complete and up-to-date information regarding their professional and academic background, competence, expertise and conflicts of interest. Member States shall inform the Commission of any changes to the list of independent persons without delay.


Member States shall notify to the Commission the names of the independent persons of standing they have nominated. Member States 
shall
 specify in the notification which of the five persons they have nominated can be appointed as a chair. They shall also provide the Commission with complete and up-to-date information regarding their professional and academic background, competence, expertise and conflicts of interest
. Such information shall be updated in the event of changes in the curriculum vitae of the independent persons
. Member States shall inform the Commission of any changes to the list of independent persons without delay.





Amendment 47


Proposal for a directive


Article 8 — paragraph 4 — subparagraph 3 a (new)








Text proposed by the Commission




Amendment





 




The Commission shall check the information referred to in the third subparagraph concerning the independent persons of standing nominated by Member States. Such checks shall be carried out within three months of receipt of the information from Member States. Where the Commission has doubts as to the independence of the nominated persons, it can request a Member State to provide additional information and, if doubts remain, it may ask the Member State to remove that person from the list and appoint someone else.







Amendment 48


Proposal for a directive


Article 8 — paragraph 4 — subparagraph 3 b (new)








Text proposed by the Commission




Amendment





 




The list of independent persons of standing shall be publicly available.







Amendment 49


Proposal for a directive


Article 9 — paragraph 1








Text proposed by the Commission




Amendment






1.   The competent authorities of the Member States concerned may agree to set up an Alternative Dispute Resolution Commission instead of the Advisory Commission to deliver an opinion on the elimination of the double taxation in accordance with Article 13.




1.   The competent authorities of the Member States concerned may agree to set up an Alternative Dispute Resolution Commission instead of the Advisory Commission to deliver an opinion on the elimination of the double taxation in accordance with Article 13. 
The use of the Alternative Dispute Resolution Commission shall, however, remain as exceptional as possible.








Amendment 50


Proposal for a directive


Article 9 — paragraph 2








Text proposed by the Commission




Amendment






2.   The Alternative Dispute Resolution Commission may differ regarding its composition and form from the Advisory Commission and apply conciliation, mediation, expertise, adjudication or any other dispute resolution processes or techniques to solve the dispute.




2.   The Alternative Dispute Resolution Commission may differ regarding its composition and form from the Advisory Commission and apply conciliation, mediation, expertise, adjudication or any other 
effective and recognised
 dispute resolution processes or techniques to solve the dispute.






Amendment 51


Proposal for a directive


Article 9 — paragraph 4








Text proposed by the Commission




Amendment






4.   Articles 11 to 15 shall apply to the Alternative Dispute Resolution Commission, except for the rules on majority set out in Article 13(3). The competent authorities of the Member States concerned can agree on different rules on majority in the Rules of Functioning of the Alternative Dispute Resolution Commission.




4.   Articles 11 to 15 shall apply to the Alternative Dispute Resolution Commission, except for the rules on majority set out in Article 13(3). The competent authorities of the Member States concerned can agree on different rules on majority in the Rules of Functioning of the Alternative Dispute Resolution Commission
, provided that the independence of the appointed persons to solve the disputes and the absence of any conflict of interests are ensured
.






Amendment 52


Proposal for a directive


Article 10 — paragraph 1 — introductory part








Text proposed by the Commission




Amendment





Member States shall provide that within the period of 
fifty calendar days
 as provided for in Article 6(4), each competent authority of the Member States concerned notifies the taxpayers on the following:


Member States shall provide that within the period of 
one month
 as provided for in Article 6(4), each competent authority of the Member States concerned notifies the taxpayers on the following:





Amendment 53


Proposal for a directive


Article 10 — paragraph 1 — subparagraph 2








Text proposed by the Commission




Amendment





The date referred to in point (b) of the first subparagraph shall be set no later than 
6
 months after the setting up of the Advisory Commission or Alternative Dispute Resolution Commission.


The date referred to in point (b) of the first subparagraph shall be set no later than 
three
 months after the setting up of the Advisory Commission or Alternative Dispute Resolution Commission.





Amendment 54


Proposal for a directive


Article 10 — paragraph 3








Text proposed by the Commission




Amendment






3.   In absence or incompleteness of notification of the Rules of Functioning to the taxpayers, the Member States shall provide that the independent persons and the chair shall complete the Rules of Functioning according to Annex II and send it to the taxpayer within two weeks from the expiry date of the 
fifty calendar days
 provided in Article 6(4). When the independent persons and the chair do not agree on the Rules of Functioning or do not notify them to the taxpayers, the taxpayers can refer to the competent court of their state of residence or establishment in order to draw all legal consequences and implement the Rules of Functioning.




3.   In absence or incompleteness of notification of the Rules of Functioning to the taxpayers, the Member States shall provide that the independent persons and the chair shall complete the Rules of Functioning according to Annex II and send it to the taxpayer within two weeks from the expiry date of the 
one-month period
 provided 
for
 in Article 6(4). When the independent persons and the chair do not agree on the Rules of Functioning or do not notify them to the taxpayers, the taxpayers can refer to the competent court of their state of residence or establishment in order to draw all legal consequences and implement the Rules of Functioning.






Amendment 55


Proposal for a directive


Article 12 — paragraph 1 — introductory part








Text proposed by the Commission




Amendment






1.   For the purposes of the procedure referred to in Article 6, the taxpayer(s) concerned 
may
 provide the Advisory Commission or Alternative Dispute Resolution Commission with any information, evidence or documents that may be relevant for the decision. The taxpayer(s) and the competent authorities of the Member States concerned shall provide any information, evidence or documents upon request by the Advisory Commission or Alternative Dispute Resolution Commission. However, the competent authorities of any such Member State may refuse to provide information to the Advisory Commission in any of the following cases:




1.   For the purposes of the procedure referred to in Article 6, the taxpayer(s) concerned 
shall
 provide the Advisory Commission or Alternative Dispute Resolution Commission with any information, evidence or documents that may be relevant for the decision. The taxpayer(s) and the competent authorities of the Member States concerned shall provide any information, evidence or documents upon request by the Advisory Commission or Alternative Dispute Resolution Commission. However, the competent authorities of any such Member State may refuse to provide information to the Advisory Commission in any of the following cases:






Amendment 56


Proposal for a directive


Article 13 — paragraph 1








Text proposed by the Commission




Amendment






1.   The Advisory Commission or Alternative Dispute Resolution Commission shall deliver its opinion no later than 
six
 months after the date it was set up to the competent authorities of the Member States concerned.




1.   The Advisory Commission or Alternative Dispute Resolution Commission shall deliver its opinion no later than 
three
 months after the date it was set up to the competent authorities of the Member States concerned.






Amendment 57


Proposal for a directive


Article 13 — paragraph 2








Text proposed by the Commission




Amendment






2.   The Advisory Commission or Alternative Dispute Resolution Commission when drawing up its opinion shall take into account the applicable national rules and double taxation treaties. In the absence of a double taxation treaty or agreement between the Member States concerned, the Advisory Commission or Alternative Dispute Resolution Commission, when drawing up its opinion, may refer to international practice in matters of taxation such as the latest OECD Model Tax Convention.




2.   The Advisory Commission or Alternative Dispute Resolution Commission when drawing up its opinion shall take into account the applicable national rules and double taxation treaties. In the absence of a double taxation treaty or agreement between the Member States concerned, the Advisory Commission or Alternative Dispute Resolution Commission, when drawing up its opinion, may refer to international practice in matters of taxation such as the latest OECD Model Tax Convention 
and the latest United Nations Model Double Taxation Convention
.






Amendment 58


Proposal for a directive


Article 14 — paragraph 1








Text proposed by the Commission




Amendment






1.   The competent authorities shall agree within 
six
 months of the notification of the opinion of the Advisory Commission or Alternative Dispute Resolution Commission on the elimination of the double taxation.




1.   The competent authorities shall agree within 
three
 months of the notification of the opinion of the Advisory Commission or Alternative Dispute Resolution Commission on the elimination of the double taxation.






Amendment 59


Proposal for a directive


Article 14 — paragraph 3








Text proposed by the Commission




Amendment






3.   Member States shall provide that the final decision eliminating double taxation is transmitted by each competent authority to the taxpayers within thirty calendar days of its adoption. When 
he
 is not notified 
with
 the decision within the thirty 
calendar
 day period, 
the taxpayers
 may appeal in its Member State of residence or establishment in accordance with national rules.




3.   Member States shall provide that the final decision eliminating double taxation is transmitted by each competent authority to the taxpayers within thirty calendar days of its adoption. When 
a taxpayer
 is not notified 
of that
 decision within the thirty-day period, 
that taxpayer
 may appeal in its Member State of residence or establishment in accordance with national rules.






Amendment 60


Proposal for a directive


Article 15 — paragraph 2








Text proposed by the Commission




Amendment






2.   The submission of the dispute to the mutual agreement procedure or to the dispute resolution procedure shall 
not
 prevent a Member State from initiating or continuing judicial proceedings or proceedings for administrative and criminal penalties in relation to the same matters.




2.   The submission of the dispute to the mutual agreement procedure or to the dispute resolution procedure shall prevent a Member State from initiating or continuing judicial proceedings or proceedings for administrative and criminal penalties in relation to the same matters.






Amendment 61


Proposal for a directive


Article 15 — paragraph 3 — point a








Text proposed by the Commission




Amendment











(a)




six
 months referred to in Article 3(5);












(a)




three
 months referred to in Article 3(5);









Amendment 62


Proposal for a directive


Article 15 — paragraph 3 — point b








Text proposed by the Commission




Amendment











(b)




two years
 referred to in Article 4(1).












(b)




one year
 referred to in Article 4(1).









Amendment 63


Proposal for a directive


Article 15 — paragraph 6








Text proposed by the Commission




Amendment






6.   By way of derogation from Article 6, Member States concerned may deny access to the dispute resolution procedure in cases of tax fraud, wilful default and gross negligence.




6.   By way of derogation from Article 6, Member States concerned may deny access to the dispute resolution procedure in cases of tax fraud 
established by a legally valid judgement in criminal or administrative proceedings
, wilful default and gross negligence 
in the same matter
.






Amendment 64


Proposal for a directive


Article 16 — paragraph 2








Text proposed by the Commission




Amendment






2.   The competent authorities shall publish the final decision referred to in Article 14
, subject to consent of each of the taxpayers concerned
.




2.   The competent authorities shall publish the final decision referred to in Article 14 
in its entirety. However, in the event that any of the taxpayers argue that some specific points in the decision are sensitive trade, industrial or professional information, the competent authorities shall consider those arguments and shall publish as much of the decision as possible whilst deleting the sensitive parts. While protecting the constitutional rights of taxpayers, in particular as regards information, the publication of which would clearly and evidently reveal industrial and commercially sensitive information to competitors, the competent authorities shall endeavour to ensure maximum possible transparency through the publication of the final decision
.






Amendment 65


Proposal for a directive


Article 16 — paragraph 3 — subparagraph 1








Text proposed by the Commission




Amendment







Where a taxpayer concerned does not consent to publishing the final decision in its entirety, the competent authorities shall publish an abstract of the final decision with description of the issue and subject matter, date, tax periods involved, legal basis, industry sector, short description of the final outcome.






deleted







Amendment 67


Proposal for a directive


Article 16 — paragraph 4








Text proposed by the Commission




Amendment






4.   The Commission shall establish standard forms for the communication of the information referred to in 
paragraphs
 2 
and 3
 by means of implementing acts. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 18(2).




4.   The Commission shall establish standard forms for the communication of the information referred to in 
paragraph
 2 by means of implementing acts. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 18(2).






Amendment 68


Proposal for a directive


Article 16 — paragraph 5








Text proposed by the Commission




Amendment






5.   The competent authorities shall notify the information to be published in accordance with paragraph 3 to the Commission without delay.




5.   The competent authorities shall notify the information to be published in accordance with paragraph 3 to the Commission without delay. 
The Commission shall make that information available in a commonly used data format on a centrally managed webpage
.






Amendment 69


Proposal for a directive


Article 17 — paragraph 1








Text proposed by the Commission




Amendment






1.   The Commission shall make available online and keep up to date the list of the independent persons of standing referred to in Article 8(4), indicating which of those persons can be appointed as chair. That list shall contain 
only
 the names of 
those
 persons.




1.   The Commission shall make available online 
in an open data format
 and keep up to date the list of the independent persons of standing referred to in Article 8(4), indicating which of those persons can be appointed as chair. That list shall contain the names, 
affiliations and curriculum vitae
 of 
those
 persons 
and information relating to their qualifications and practical experience, accompanied by declarations regarding any conflicts of interest
.






Amendment 70


Proposal for a directive


Article 21 a (new)








Text proposed by the Commission




Amendment





 




Article 21a






 




Review






 




By … [three years after the date of entry into force of this Directive], the Commission shall, on the basis of public consultation and in the light of the discussions with competent authorities, carry out a review on the application and the scope of this Directive. The Commission shall also analyse whether an Advisory Committee of a permanent nature (‘Standing Advisory Commission’) would further increase the effectiveness and efficiency of the dispute resolution procedures.






 




The Commission shall submit a report to the European Parliament and the Council, including, if appropriate, an amending legislative proposal.







Amendment 71


Proposal for a directive


Annex I — heading 5 — line 2 a (new)








Text proposed by the Commission




Amendment





 




Gewerbesteuer







Amendment 72


Proposal for a directive


Annex I — heading 12 — line 2 a (new)








Text proposed by the Commission




Amendment





 




Imposta regionale sulle attività produttive








(1)  Texts adopted, P8_TA(2015)0408.

(2)  Texts adopted, P8_TA(2016)0310.

(3)  OJ L 225, 20.8.1990, p. 10.

(1a)  

OJ L 225, 20.8.1990, p. 10.



(7)  

OJ L 225, 20.8.1990, p. 10.



(1a)  
Proposal for a Council directive on a Common Consolidated Corporate Tax Base (CCCTB) (COM(2016)0683).