Commission Implementing Regulation (EU) 2019/652 of 24 April 2019 laying down standard Rules of Functioning for the Advisory Commission or Alternative Dispute Resolution Commission and a standard form for the communication of information concerning publicity of the final decision in accordance with Council Directive (EU) 2017/1852
Date: 2019-04-24
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: EU Member State, EU office or agency, European tax cooperation, alternative dispute resolution, double taxation, operation of the Institutions, tax on capital, tax on income








L_2019110EN.01002601.xml










25.4.2019   


EN


Official Journal of the European Union


L 110/26








            COMMISSION IMPLEMENTING REGULATION (EU) 2019/652
of 24 April 2019
         
laying down standard Rules of Functioning for the Advisory Commission or Alternative Dispute Resolution Commission and a standard form for the communication of information concerning publicity of the final decision in accordance with Council Directive (EU) 2017/1852


THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,


Having regard to Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European Union (1), and in particular Articles 11(3) and 18(4) thereof,

Whereas:







(1)


Directive (EU) 2017/1852 introduces a mechanism for the effective resolution of tax disputes between Member States concerning the interpretation and application of agreements and conventions that provide for the elimination of double taxation of income and, where applicable, capital.












(2)


Directive (EU) 2017/1852 provides that if the mutual agreement procedure which is foreseen as a first step for the resolution of disputes does not lead to an agreement between the competent authorities of the Member States concerned within a certain timeframe, the dispute may be submitted for resolution by an Advisory Commission or an Alternative Dispute Resolution Commission.












(3)


Directive (EU) 2017/1852 provides that the competent authorities of each Member State involved in the dispute shall sign the Rules of Functioning for the Advisory Commission or Alternative Dispute Resolution Commission (‘Rules of Functioning’) and notify them to the affected persons.












(4)


Directive (EU) 2017/1852 provides that the Commission shall establish standard Rules of Functioning to apply where the Rules of Functioning have not been notified to the affected person(s) within the prescribed timeframe or they are incomplete. Standard Rules of Functioning should therefore be established, in order to achieve the continuity and effectiveness of the dispute resolution procedure. For this reason, the standard Rules of Functioning should create a comprehensive procedural framework for the dispute resolution procedure to run without obstacles and to guarantee the rights of the affected person(s) under Directive (EU) 2017/1852. It would be particularly important to delineate the legal base of the dispute, the terms of reference, as well as deal with the details of the organisation and functioning of the Advisory Commission or Alternative Dispute Resolution Commission and also provide for the sharing of costs. In order to ensure the independence of the Advisory Commission or Alternative Dispute Resolution Commission, it would also be necessary to include a comprehensive disclosure of any conflicts of interest.












(5)


Directive (EU) 2017/1852 provides that the competent authorities may agree to publish their final decision in its entirety, subject to consent of the affected person(s) concerned. Directive (EU) 2017/1852 also provides that where the competent authorities or affected person(s) concerned do not consent to publishing the final decision in its entirety, the competent authorities shall publish an abstract of such final decision.












(6)


In order to guarantee the coherent communication of the information concerning the publicity of the final decision, a standard form should be established. In order to ensure transparency regarding the final decision whilst also protect business secrecy of the affected person(s), the standard form should condition the publication of the final decision on an agreement of the competent authorities and the consent of the affected person(s). In the case that one of these parties disagrees with the publication, the rules should provide for releasing an abstract of the final decision and setting out the elements that should feature thereon. It should also be accepted that the affected person be entitled to request the competent authorities not to publish information that pertains to business secrecy.












(7)


In order to ensure legal certainty and a proper functioning of the system, this Regulation should start to apply after the time limit for transposition laid down in the first subparagraph of Article 22(1) of Directive (EU) 2017/1852.












(8)


The measures provided for in this Regulation are in accordance with the opinion of the Committee on Dispute Resolution,





HAS ADOPTED THIS REGULATION:



Article 1

Standard Rules of Functioning

Where the competent authorities of the Member States involved in a dispute resolution procedure under Directive (EU) 2017/1852 have not notified the Rules of Functioning for the Advisory Commission or Alternative Dispute Resolution Commission (‘Rules of Functioning’) or have notified incomplete Rules of Functioning to the affected person(s), the independent persons of standing and the chair shall complete the Rules of Functioning on the basis of the standard form laid down in Annex I to this Regulation.


Article 2

Standard form for the communication of information concerning publicity of the final decision

Where the competent authorities of the Member States involved in a dispute resolution procedure under Directive (EU) 2017/1852 communicate information referred to in paragraphs 2 and 3 of Article 18 of that Directive, they shall use the standard form laid down in Annex II to this Regulation.


Article 3

Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 July 2019.




This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 April 2019.


For the Commission


The President

Jean-Claude JUNCKER
            





(1)  
            OJ L 265, 14.10.2017, p. 1.




ANNEX I
PART 1

STANDARD RULES OF FUNCTIONING OF THE ADVISORY COMMISSION OR ALTERNATIVE DISPUTE RESOLUTION COMMISSION


(ARTICLE 11(3) OF DIRECTIVE (EU) 2017/1852)


[To be filled in by the independent persons of standing and the chair and signed by the competent authorities of the Member States concerned]


[Where the advisory commission is set up for the purposes of Article 6(1)(a) of Directive (EU) 2017/1852, fill in items marked with a * only]

1.   GENERAL INFORMATION *

Name(s) of the affected person(s), address(es), tax identification number(s) (TIN)(s): …


Member State of residence for tax purposes of the affected person(s): …


Member States concerned: …


Full address and details of a contact person for the affected person(s), including phone number and email address: …


Names and details of the affected person's counsel (if applicable): …
2.   COMPOSITION OF THE ADVISORY COMMISSION OR ALTERNATIVE DISPUTE RESOLUTION COMMISSION
2.1.   Form:









☐



Advisory Commission













☐



Alternative Dispute Resolution Commission





2.2.   Type of resolution process:









☐


‘Independent opinion’ process












☐


‘Final offer’ process












☐



Other, please specify: …




2.3.   Number of Members and general information *:







—


☐ Chair










—


☐ … Independent persons of standing and … Substitutes










—


☐ …Competent authorities' representatives




Chair:






 


…










 


…










 



Citizenship: … Address and contact details (incl. email address and phone number - optional): …





Independent person of standing (appointed by …):






 


…










 


…










 



Citizenship: … Address and contact details (incl. email address and phone number - optional): …





Substitute (appointed by …):






 


…










 


…










 



Citizenship: … Address and contact details (incl. email address and phone number - optional): …





Independent person of standing (appointed by …):






 


…










 


…










 



Citizenship: … Address and contact details (incl. email address and phone number - optional): …





Substitute (appointed by …):






 


…










 


…










 



Citizenship: … Address and contact details (incl. email address and phone number - optional): …





Competent authorities (Representative appointed for …)

Address and contact details (incl. email address and phone number):







 


…










 


…




Competent authorities (Representative appointed for …)

Address and contact details (incl. email address and phone number):







 


…










 


…




Where applicable, add lines for additional members involved

In addition, as regards the independent persons of standing, their CVs and references with details of their competence and qualifications shall optionally be attached to these Standard Rules of Functioning. The Disclosure of any Conflicts of Interest set out in Part 2 shall be lawfully signed and included.

3.   DESCRIPTION AND CHARACTERISTICS OF THE QUESTION IN DISPUTE *

Subject matter description:

…
…
…
…

Tax period(s):

…
…

Industry sector:

…
…
…

References to applicable laws and treaties:









☐



National law provisions
(Detailed reference of the corresponding articles shall be provided – the full provisions can be attached)





…
…








☐



Double Taxation Convention
(Bilateral or multilateral - detailed reference of the corresponding articles shall be provided – the full provisions can be attached)





…
…








☐



Convention on the elimination of double taxation in connection with the adjustments of profits of associated enterprises (90/436/EEC) (1)
(Detailed reference of the corresponding articles shall be provided – the full provisions can be attached)





…
…








☐


Any other reference agreed by the competent authorities:




…
…
…

Amounts per tax year and other details about the disputed application or interpretation of the agreement or convention as specified in the complaint submitted by the affected person and as verified by the competent authorities:

…
…
…
4.   TERMS OF REFERENCE AGREED BY THE COMPETENT AUTHORITIES

Description of the legal issues subject to interpretation in the disputed case:

…
…
…
…

Description of the factual circumstances to be considered and factual issues on which competent authorities need clarification and/or interpretation by the Advisory Commission or Alternative Dispute Resolution Commission:

…
…
…
…
5.   TIME FRAME FOR THE DISPUTE RESOLUTION PROCEDURE *

Latest date for delivering the opinion:

…

Time-limits for submissions by the competent authorities and affected person(s), including documentary or other evidence and/or expert opinions; consequences of late submission (if any):
…
…

Scheduled dates and place of hearings
(if any):
…
…

Scheduled dates for the appearance or representation of the affected person(s) and/or third parties at the hearings
(if any):
…
…
6.   ORGANISATION AND FUNCTIONING *

Place(s) of meeting of the Advisory Commission or Alternative Dispute Resolution Commission: …


Administrative services that may be required for the Advisory Commission or Alternative Dispute Resolution Commission to carry out their functions:

…

Working language(s) for the dispute resolution procedure: …


Possible need for translation of documents
(in full or in part): …

Possible need for interpretation of oral presentations: …


Practical details concerning written submissions and evidence
(e.g. method of submission, copies, numbering, references):
…

Routing of written communications among the competent authorities and affected person(s)
(including means of sending documents):
…

Arrangements for requests for information by the Advisory Commission or Alternative Dispute Resolution Commission and subsequent replies by the affected person(s) and the competent authorities: …


Experts and other possible third parties (terms and conditions for the submission of oral and written opinions):

…

Conditions for the admissibility of documents (e.g. original or certified copies, etc.):
…

Arrangements for presenting voluminous and complicated documentary evidence
(e.g., through summaries, tabulations, charts, extracts or samples):
…

Arrangements for a record of the hearings: …


Other (to be specified, including other procedural, evidentiary and logistical arrangements that may be applicable):
…
7.   OPINION

Possible requirements concerning filing or delivering the opinion:

…
…
8.   COSTS *
The costs shall be shared between the Member States:








☐



In proportion of: …













☐



Equally





The costs shall include, if any:








☐


The expenses incurred by the independent persons of standing: …












☐


The fees of the independent persons of standing (limited to EUR 1 000 per person per meeting day): …












☐


Translation costs …












☐


Interpretation costs …












☐


Other administrative costs (including Secretariat costs)
…




Other information and arrangements regarding costs (to be specified):
…
…
9.   OTHER
…
…
…

Date:


Signature by the representatives of the competent authorities of the Member States:

…
…
PART 2

DISCLOSURE OF ANY CONFLICTS OF INTEREST


[To be filled in by each appointed independent person of standing and his or her substitute]


Family name: …


First name: …


Appointed by: …









☐


I consider myself independent and impartial. To the best of my knowledge, and having made due enquiry, there is no interest, relationship or any other matter, past or present, that I should disclose because it might affect my independence or impartiality or that might reasonably create an appearance of bias in the proceedings.












☐


Confirmation with disclosure: I am objective and intend to remain so. Accordingly, I am also mindful of my obligation to disclose any facts or circumstances, which might be of such nature as to call into question my independence before the competent authorities. In this context, I draw your attention to the matters below:




…
…
This disclosure does not discharge my ongoing duty to disclose any facts and circumstances that might affect my independence.

Date:


Signature of the appointed independent person or his or her subsitute:

…


(1)  
            OJ L 225, 20.8.1990, p. 10.





ANNEX II

STANDARD FORM FOR THE COMMUNICATION OF INFORMATION CONCERNING PUBLICITY OF THE FINAL DECISION


(ARTICLE 18(4) OF DIRECTIVE (EU) 2017/1852)


[To be filled in by the competent authorities of each Member State concerned]








Publication of the final decision











1.


Agreement of the competent authorities to publish the final decision in its entirety






Yes ☐
No ☐










2.


Consent of the affected person(s) to publish the final decision in its entirety






Yes ☐
No ☐





If ‘Yes’ under both 1. and 2.:











a)


Publication of the final decision in its entirety









Text of final decision in its entirety:






If ‘No’ under any of 1. or 2.:











b)


Publication of the abstract of the final decision














(i)


a description of the issue and the subject matter






…










(ii)


date






…










(iii)


tax periods involved






…










(iv)


legal base






…










(v)


industry sector






…










(vi)


a short description of the final outcome






…










(vii)


a description of the method of arbitration used






…




The final decision has been redacted for reasons concerning a trade, business, industrial or professional secret or trade process, or for being contrary to public policy