COMMISSION IMPLEMENTING REGULATION (EU) …/... laying down detailed rules for implementing certain provisions of Council Directive 2011/16/EU as regards the assessment and determination of equivalence of information in an agreement between the competent authorities of a Member State and a non-Union jurisdiction
Date: 2023-01-20
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: common tariff policy, fiscal policy



IMMC.Ares%282023%29452049.ENG.xhtml.PART-2022-843991V2.docx








COMMISSION IMPLEMENTING REGULATION (EU) …/...


of XXX


laying down detailed rules for implementing certain provisions of Council Directive 2011/16/EU as regards the assessment and determination of equivalence of information in an agreement between the competent authorities of a Member State and a non-Union jurisdiction


THE EUROPEAN COMMISSION,


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


Having regard to Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC
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, and in particular Article 8ac(7), first subparagraph, thereof,


Whereas:


(1)Directive 2011/16/EU was amended by Council Directive (EU) 2021/514
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 in order to improve the provisions that relate to all forms of exchanges of information and administrative cooperation by providing for a mandatory automatic exchange of information reported by platform operators.


(2)Given the nature and flexibility of digital platforms, the reporting obligation, as defined in Annex V, Section IA, point 4(b) of Directive 2011/16/EU, extends to those platform operators that perform commercial activity in the Union but are neither resident for tax purposes, nor incorporated or managed, nor have a permanent establishment in a Member State (‘foreign platform operators’). This ensures a level playing field for all digital platforms regardless of their place of establishment and prevents unfair competition within the Union.


(3)Directive 2011/16/EU lays down measures that are intended to reduce the administrative burden on foreign platform operators and the tax authorities of Member States, in cases where adequate arrangements exist which ensure that equivalent information is exchanged between a non-Union jurisdiction and a Member State.


(4)Article 8ac(7), first subparagraph, of Directive 2011/16/EU provides that the Commission is to, following a reasoned request by a Member State or on its own initiative, determine whether the information received by a Member State is equivalent to that specified in Section III, paragraph B, of Annex V to that Directive. 


(5)This  Regulation establishes the criteria for assessing and determining the extent to which the national law of a non-Union jurisdiction and an agreement between the competent authorities of a Member State and a non-Union jurisdiction  ensures that the information received by that Member State relates to the activities within the scope of  Directive 2011/16/EU and is equivalent to the information required under the reporting rules set out in that Directive.


(6)At international level, the Organisation for Economic Cooperation and Development (OECD) published on 3 July 2020, Model Rules for Reporting by Platform Operators with respect to Sellers in the Sharing and Gig Economy
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 (‘Model Rules’) and on 22 June 2021, an Optional Module extending the Model Rules to the sale of goods and the rental of means of transportation
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 (‘Optional Module’). The Model Rules and Optional Module are not a minimum standard and, as a result, may be implemented in a different manner by jurisdictions. It is therefore necessary for the Commission to assess the national law transposing the Model Rules and Optional Module of the non-Union jurisdiction, on a case-by-case basis to determine the extent to which the activities in the scope of and the information required under the reporting rules of that national law are equivalent to those required under Directive 2011/16/EU. 


(7)The assessment and determination of such equivalence should take an approach that ensures that Member States receive the necessary information and prevents excessive burden on the platforms that have already reported the relevant information in a non-Union jurisdiction. Therefore, the Commission should carry out the assessment in accordance with the corresponding criteria, as defined in Article 8ac(7) and with due consideration for the optional exclusions offered under the Model Rules and Optional Module.


(8)The European Data Protection Supervisor was consulted on the measures provided for in this Regulation in accordance with Article 42(1) of Regulation (EU) 2018/1725
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(9)The measures provided for in this Regulation are in accordance with the opinion of the Committee on Administrative Cooperation for Taxation,


HAS ADOPTED THIS REGULATION:


Article 1


Criteria for assessing and determining equivalence


The Commission shall apply the criteria set out in Articles 2 to 7 of this Regulation when determining whether the information that is required to be automatically exchanged pursuant to an agreement between competent authorities of a Member State and a non-Union jurisdiction is, within the meaning of subparagraph A(7) of Section I of Annex V to Directive 2011/16/EU, equivalent to that specified in paragraph B of Section III of Annex V to that Directive.




Article 2


Reporting Platform Operator


1.The Commission shall assess the definitions regarding reporting platform operator set out in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction, to determine their equivalence with the definitions set out in Section I, subparagraphs A(1) to A(4) of Annex V to Directive 2011/16/EU.


2.Where a non-Union jurisdiction does not consider as a reporting platform operator, a Platform Operator that facilitates the provision of relevant activities for which, over the previous calendar year, the aggregate consideration at the level of the platform is less than EUR 1 million or less than an amount approximately equivalent to EUR 1 million in the local currency of that jurisdiction, as a reporting platform operator, a determination of equivalence shall only apply to reporting platform operators as defined in the national law of the relevant non-Union jurisdiction.


Article 3


Reportable Sellers


The Commission shall assess the definitions regarding reportable sellers set out in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction, to determine their equivalence with the definitions set out in Section I, subparagraphs B(1) to B(4), and C(1) and C(2), of Annex V to Directive 2011/16/EU.


Article 4


Relevant Activity


1.The Commission shall assess the definitions of relevant activity set out in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction, to determine their equivalence with the definitions set out in Section I, subparagraphs A(8), A(10), A(11), and C(9), of Annex V to Directive 2011/16/EU.


2.Where a non-Union jurisdiction does not include in its national law one or more of the relevant activities as defined in Section I, subparagraph A(8) of Annex V to Directive 2011/16/EU as a relevant activity, a determination of equivalence shall only apply to information in relation to a relevant activity as defined in the national law of that non-Union jurisdiction.


Article 5


Due diligence procedures


The Commission shall assess the due diligence procedures laid down in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction to determine their equivalence with the due diligence procedures set out in Section II of Annex V to Directive 2011/16/EU and the definitions set out in Section I, subparagraphs C(3) to C(7), of Annex V to Directive 2011/16/EU.


Article 6


Reporting requirements


The Commission shall assess the reporting requirements laid down in the national law of a non-Union jurisdiction and  pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction to determine their equivalence with the reporting requirements set out in Section III, subparagraphs A(1), A(2), A(5), A(6) and A(7), and paragraph B, of  Annex V to Directive 2011/16/EU, and the  definitions set out in Section I, subparagraphs C(3) to C(8), of Annex V to Directive 2011/16/EU. 


Article 7


Effective implementation


The Commission shall assess the rules and administrative procedures laid down in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction to ensure the effective implementation of, and compliance with, the due diligence procedures and reporting requirements, and to determine their equivalence with the provisions set out in Section IV, paragraphs A to D of Annex V to Directive 2011/16/EU.


Article 8


Determination of equivalence


Where the criteria referred to in Article 1 and assessed in accordance with Articles 2 to 7 are met, the information that is required to be automatically exchanged pursuant to an agreement between the competent authorities of the Member State and the non-Union jurisdiction concerned shall be considered equivalent. That determination of equivalence shall apply to the same competent authority agreement concluded between the non-Union jurisdiction concerned and any other Member State.


Without prejudice to Article 2(2), a Reporting Platform Operator as defined in Section I, subparagraph A(4), point (b), of  Annex V to Directive 2011/16/EU that is not considered a reporting platform operator under the national law of the relevant non-Union jurisdiction, shall be obliged to register and report information to a single Member State in accordance with Article 8ac(4) and Section IV, subparagraph F(1) of Annex V to  Directive 2011/16/EU. 


Without prejudice to Article 4(2), a reporting platform operator as defined in Section I, subparagraph A(4), point (b), of Annex V to Directive 2011/16/EU, that facilitates the carrying out of any relevant activity that is not considered a relevant activity under the national law of the relevant non-Union jurisdiction, shall be obliged to register and report information on Reportable Sellers with respect to such relevant activity  to a single Member State in accordance with Article 8ac(4) and Section IV, subparagraph F(1) of Annex V to of  Directive 2011/16/EU.


Article 9


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.




This Regulation shall be binding in its entirety and directly applicable in all Member States.


Done at Brussels,



   For the Commission


   The President

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