CELEX: 52015PC0150
Language: en
Date: 2015-04-07
Title: Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Amending Protocol to the Agreement between the European Community and the Swiss Confederation 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

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		52015PC0150
		
			Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Amending Protocol to the Agreement between the European Community and the Swiss Confederation 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 /* COM/2015/0150 final - 2015/0075 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
Following the adoption of Council Directive
2003/48/EC, the Savings Directive, and in order to preserve the level playing
field of economic operators, the EU signed Agreements with Switzerland,
Andorra, Liechtenstein, Monaco and San Marino providing for measures equivalent
to those laid down in the Directive. Member States also signed agreements with
the dependent territories of the United Kingdom and the Netherlands.
More recently, the importance of automatic
exchange of information as a means to combat cross-border tax fraud and tax
evasion by ensuring full tax transparency and cooperation between tax
administrations worldwide has also been recognised at the international level.
The Organisation for Economic Cooperation and Development (OECD) was mandated
by the G20 to develop a single global standard for automatic exchange of
financial account information. The Global Standard was released by the OECD
Council in July 2014.
Following the adoption of a proposal to update
the Savings Directive, the Commission adopted on 17 June 2011 a recommendation
for a mandate to initiate negotiations with Switzerland, Liechtenstein,
Andorra, Monaco and San Marino, in order to upgrade the EU’s Agreements with
those countries in line with international developments and to ensure that
those countries continue to apply measures equivalent to those in the EU. On 14
May 2013, the Council reached an agreement on the Negotiating Mandate by
concluding that negotiations should be aligned with the recent developments at
global level where it was agreed to promote automatic exchange of information
as an international standard.
In its communication of 6 December 2012
containing an Action Plan to strengthen the fight against tax fraud and tax
evasion, the Commission highlighted the need to promote vigorously the
automatic exchange of information as the future European and international
standard for transparency and exchange of information in tax matters.
On the basis of a proposal presented by the
Commission in June 2013, the Council on 9 December 2014 adopted Directive
2014/107/EU amending Directive 2011/16/EU and extending the mandatory automatic
exchange of information between EU tax authorities to a full range of financial
items in accordance with the Global Standard. The amendment ensures a coherent,
consistent and comprehensive Union-wide approach to the automatic exchange of
financial account information in the Internal Market.
As Directive
2014/107/EU is generally broader in scope than Directive 2003/48/EC and
provides that in cases of overlap of scope, Directive 2014/107/EU prevails, on
18 March 2015 the Commission adopted a proposal to repeal Directive 2003/48/EC.
In order to
minimise costs and administrative burdens both for tax administrations and for
economic operators, it is crucial to ensure that the amendment of the existing
Savings Agreement with Switzerland is in line with EU and international
developments. This will increase tax transparency in Europe and will be the
legal basis for implementing the OCDE Global Standard on automatic exchange of
information between Switzerland and the EU. 
Given the Swiss
constitutional requirements for ratification, for Switzerland to be able to
commence due diligence procedures in January 2017, with first exchanges under
the Global Standard by September 2018, the Amending Protocol would need to be
signed by May 2015. This would grant to all Member States the earliest possible
cooperation to which Switzerland is committed at international level.
2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
The Amending
Protocol implements the Global Standard between EU Member States and
Switzerland. The different stakeholders were already consulted on various
occasions during the development of the OECD Global Standard.
EU Member States
have also been consulted and informed during the negotiations between the
Commission and Switzerland. The Commission reported to the European Council at
its meetings in March and December 2014 on the state of play of the
negotiations with Switzerland. 
The Commission
has also consulted the new Expert Group on automatic exchange of financial
account information that provides advice to ensure that EU legislation on
automatic exchange of information in direct taxation is effectively aligned and
fully compatible with the OECD Global Standard. The Expert Group includes
representatives from organisations representing the financial sector and
organisations campaigning against tax evasion and tax avoidance.
3.           LEGAL ELEMENTS OF THE
PROPOSAL
The legal basis
for this proposal is provided by Article 115 of the Treaty on the Functioning
of the European Union, in conjunction with Article 218(5) and (8) second
subparagraph. The substantive legal basis is provided by Article 115 TFEU. 
Article 1 of the
Amending Protocol annexed to this Proposal for Council Decision changes the
title of the existing Agreement in order to better reflect the contents of the
Agreement, as amended by that Amending Protocol. 
Article 2 replaces
the existing articles and Annexes with a new set of provisions comprising 11
Articles, an Annex I that reflects the OECD Common Reporting Standard which is
part of the Global Standard, an Annex II that reflects important parts of the
OECD Commentaries to the Global Standard and an Annex III that lists the
Competent Authorities of Switzerland and of each Member State.
The new Articles
reflect the articles of the OECD Model Competent Authority agreement for the
implementation of the Global Standard, with minor adaptations to reflect the
particular legal context of an EU Agreement. In Article 1 there is no
definition of  Tax Identification Number (TIN), since there is already a
definition of TIN in Section VIII(E)(5) of Annex I. Article 5 includes a full
set of provisions on exchange of information upon request that follows the
latest text of the OECD Model Tax Convention. Article 6 includes a more
detailed set of provisions on data protection. Article 7 provides for an
additional stage of consultation before any Member State or Switzerland
undertakes to suspend the Agreement. Article 8 features provisions on
amendments to the Agreement, including a quick mechanism for provisional
application by one of the Contracting Parties of amendments to the Global Standard,
on the condition of consent by the other Party. Article 9 takes over the full
set of provisions of Article 15 of the Agreement before its amendment by the
Amending Protocol, because the negotiators of the Contracting Parties agreed
not to make any change to these provisions which relate to business taxation
and are not influenced by the Global Standard. Article 11 defines the
territorial scope.
Annex I follows
both the OECD Common Reporting Standard and Annex I to the Directive on
Administrative Cooperation. Annex II implements key parts of the CRS
Commentaries and corresponds to Annex II to the Directive on Administrative
Cooperation. The minor deviations from Annex I or II to the Directive on
Administrative Cooperation are justified by the re-alignment of the text to the
OECD Common Reporting Standard (CRS) requested by the Swiss negotiators. Those
include the following:
1. In Section
I(D) the reference to the reporting of place of birth is realigned to the CRS.
2. Section I(A)
on insurances that are effectively prevented by law from being sold to
residents of a Reportable Jurisdiction is reintroduced. In order to avoid risks
of abuse of that exemption, a corresponding Joint Declaration is included at
the end of the Amending Protocol.
3. All the relevant
options provided for in the OECD CRS Commentaries and in the Directive on
Administrative Cooperation have been left at the discretion of each Member
State and Switzerland and are not exercised directly in the Agreement. There is
instead an obligation on Member States and Switzerland to notify each other and
the Commission whether they have exercised any particular option. This is meant
as a safeguard for the correct application of the alternative definition of
“Related Entity” in connection with the option on new accounts of current
customers.
4. The
definitions of “International Organisation” and “Central Bank” in Section
VIII(B)(3) and (4) have been realigned to the CRS in order to enable them to
apply also in the context of the exemption from the look-through for Passive
non-financial entities (NFEs) in Section VIII(D)(9)(c).
5. In Annex II
the definition of “Residence of a Financial Institution” is aligned to the CRS
Commentaries in order to cover cases where the residence of another Financial
Institution should be determined, e.g. for the look-through for Passive NFEs.
Article 3 of the
Amending Protocol includes provisions on the entry into force and application.
It deals with issues on the transition from the existing Agreement to the
amended Agreement, with regard to requests for information, credits available
to beneficial owners for withholding tax, final payments of withholding tax by
Switzerland to Member States and final exchanges of information under the
voluntary disclosure mechanism.
Article 4
includes a Protocol on additional safeguards related to the exchange of
information on request, which Switzerland includes in its tax treaties. The
text specifies that exchanges on the basis of a group request are not
prevented. The Protocol on additional safeguards is in line with the Global
Forum's Terms of Reference for exchange of information on request.
Article 5 lists
the languages in which the Amending Protocol is signed.
The revised
Agreement is supplemented by four Joint Declarations of the contracting parties
and one Unilateral Declaration by Switzerland.
The first Joint
Declaration concerns the expected date of entry into force of the revised
Agreement. The second and third Declarations make a link respectively to the
Commentaries to the Global Standard and Article 26 of the OECD Model Tax
Convention on Income and on Capital. The fourth Declaration aims at preventing
misinterpretation of Section III(A) of Annex I and establishes a mechanism of
mutual notification of the cases where that exemption would have grounds to
apply. The fifth Declaration is a unilateral one from the Swiss side.
4.           BUDGETARY IMPLICATION
The proposal does not entail have any budgetary
implications.
5.           OPTIONAL ELEMENTS
2015/0075 (NLE)
Proposal for a
COUNCIL DECISION
on the signing, on behalf of the European
Union, of the Amending Protocol to the Agreement between the European Community
and the Swiss Confederation 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 COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 115 in conjunction
with Article 218(5) and the second paragraph of Article 218(8) thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1)       On 14 May 2013 the Council
authorised the Commission to open negotiations with the Swiss Confederation to
amend the Agreement between the European Community and the Swiss Confederation
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, in
order to align that Agreement with the recent developments at global level
where it was agreed to promote automatic exchange of information as an
international standard.
(2)       The text of the Amending
Protocol which is the result of the negotiations duly reflects the negotiating
directives issued by the Council as it aligns the Agreement with the latest
developments at international level concerning automatic exchange of
information, namely the Global Standard for automatic exchange of financial
account information in tax matters developed by the Organisation for Economic
Cooperation and Development (OECD). The Union, its Member States and the Swiss
Confederation have actively participated in the work of the OECD. The text of
the Agreement, as amended by the Amending Protocol, is the legal basis for
implementing the Global Standard in the relations between the Union and the
Swiss Confederation.
(3)       Therefore, the Amending
Protocol should be signed on behalf of the Union, subject to its conclusion at
a later date,
HAS ADOPTED THIS DECISION: 
Article 1
The signing of the Amending Protocol to the
Agreement between the European Union and the Swiss Confederation 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 is hereby
authorised on behalf of the Union,
subject to the conclusion of that Amending Protocol.
The text of the Amending Protocol to be
signed is attached to this Decision.
Article 2
The Council Secretariat General shall
establish the instrument of full powers to sign the Amending Protocol, subject
to its conclusion, for the person(s) indicated by the negotiator of the
Amending Protocol.
Article 3 
This Decision shall
enter into force on the twentieth day following that of its publication in the Official
Journal of the European Union.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
Amending Protocol to the Agreement
between the European Community and the Swiss Confederation 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
Amending Protocol
Amending
the                                                                                                        

 “Agreement between the European Community
and the Swiss Confederation 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”, hereinafter referred to as ‘Agreement’
THE EUROPEAN UNION, 
and
THE SWISS CONFEDERATION, hereinafter
referred to as ‘Switzerland’,
both hereinafter referred to as ‘Contracting
Party’ or ‘Contracting Parties’,
With a view to implementing the OECD
Standard for Automatic Exchange of Financial Account Information, hereinafter
referred to as ‘Global Standard’, within a framework of cooperation which takes
account of the legitimate interests of both Contracting Parties,
Whereas, the Contracting Parties have a
longstanding and close relationship with respect to mutual assistance in tax
matters, in particular on the application of measures equivalent to those laid
down in Council Directive 2003/48/EC on taxation of savings income in the form
of interest payments, and desire to improve international tax compliance by
further building on that relationship,
Whereas, the Contracting Parties desire to
conclude an agreement to improve international tax compliance based on
reciprocal automatic exchange of information, subject to certain
confidentiality and other protections, including provisions limiting the use of
the information exchanged,
Whereas Article 10 of the Agreement in the
form prior to its amendment with this Amending Protocol, which currently
provides for exchange of information upon request limited to conduct
constituting tax fraud and the like should be aligned to the OECD standard on
transparency and exchange of information in tax matters,
Whereas, the Contracting Parties will apply
their respective data protection laws and practices to the processing of
personal data exchanged in accordance with the Agreement as amended by this
Amending Protocol and undertake to notify each other without undue delay in the
event of any change in the substance of these laws and practices,
Whereas, the Member States and Switzerland
have in place (i) appropriate safeguards to ensure that the information
received pursuant to the Agreement as amended by this Amending Protocol remains
confidential and is used solely for the purposes of and by the persons or
authorities concerned with the assessment or collection or recovery of, the
enforcement or prosecution in respect of, or the determination of appeals in
relation to taxes, or the oversight of these, as well as for other authorised
purposes, and (ii) the infrastructure for an effective exchange relationship
(including established processes for ensuring timely, accurate, secure and
confidential information exchanges, effective and reliable communications, and
capabilities to promptly resolve questions and concerns about exchanges or
requests for exchanges and to administer the provisions of Article 4 of the
Agreement as amended by this Amending Protocol),
Whereas the categories of Reporting
Financial Institutions and Reportable Accounts covered by the Agreement as
amended by this Amending Protocol are designed to limit the opportunities for
taxpayers to avoid being reported by shifting assets to Financial Institutions
or investing in financial products that are outside the scope of the Agreement
as amended by this Amending Protocol. However, certain Financial Institutions
and accounts that present a low risk of being used to evade tax should be excluded
from the scope. Thresholds should not be generally included as they could
easily be circumvented by splitting accounts into different Financial
Institutions. The financial information which is required to be reported and
exchanged should concern not only all relevant income (interests, dividends and
similar types of income) but also account balances and sale proceeds from
Financial Assets, in order to address situations where a taxpayer seeks to hide
capital that in itself represents income or assets with regard to which tax has
been evaded. Therefore, the processing of information under the Agreement as
amended by this Amending Protocol is necessary and proportionate for the
purpose of enabling Member States’ and Switzerland’s tax administrations to correctly
and unequivocally identify the taxpayers concerned, to administer and enforce
their tax laws in cross-border situations, to assess the likelihood of tax
evasion being perpetrated and to avoid unnecessary further investigations,
HAVE AGREED AS FOLLOWS:
Article 1
The title of the Agreement shall be
replaced by the following title:
“Agreement between the European Union and
the Swiss Confederation on the automatic exchange of financial account
information to improve international tax compliance”
Article 2
Articles 1 through 22 as well as the
Annexes shall be replaced by the following:
“Article 1
Definitions
1. For the purposes of this agreement (“Agreement”), the following
terms have the following meanings:
a) The term “European Union” means the Union as established by the
Treaty on the European Union and includes the territories in which the Treaty
on the Functioning of the European Union is applied and under the conditions
laid down in that Treaty.
b) The term “Member State” means a Member State of the European
Union.
c) The term “Switzerland” means the territory of the Swiss
Confederation as defined by its law in accordance with international law.
d) For the purposes of this Agreement the Competent Authorities of
Switzerland and Member States shall mean those authorities listed in Annex III.
Annex III shall form an integral part of this Agreement. The list of Competent
Authorities in Annex III may be amended by simple notification of the other
Contracting Party by Switzerland for the authority referred to in (a) therein
and by the European Union for the other authorities referred to in (b) to (ac)
therein.
e) The term “Member State Financial Institution” means (i) any
Financial Institution that is resident in a Member State, but excludes any
branch of that Financial Institution that is located outside that Member State,
and (ii) any branch of a Financial Institution that is not resident in that
Member State, if that branch is located in that Member State.
f) The term “Swiss Financial Institution” means (i) any Financial
Institution that is resident in Switzerland, but excludes any branch of that
Financial Institution that is located outside Switzerland, and (ii) any branch
of a Financial Institution that is not resident in Switzerland, if that branch
is located in Switzerland.
g) The term “Reporting Financial Institution” means any Member State
Financial Institution or Swiss Financial Institution, as the context requires,
that is not a Non-Reporting Financial Institution.
h) The term “Reportable Account” means a Member State Reportable
Account or a Swiss Reportable Account, as the context requires, provided it has
been identified as such pursuant to due diligence procedures, consistent with
Annexes I and II, in place in that Member State or Switzerland.
i) The term “Member State Reportable Account” means a Financial
Account that is maintained by a Swiss Reporting Financial Institution and held
by one or more Member State persons that are Reportable Persons or by a Passive
NFE with one or more Controlling Persons that is a Member State Reportable
Person.
j) The term “Swiss Reportable Account” means a Financial Account
that is maintained by a Member State Reporting Financial Institution and held
by one or more Swiss persons that are Reportable Persons or by a Passive NFE
with one or more Controlling Persons that is a Swiss Reportable Person.
k) The term “Member State Person” means an individual or Entity that
is identified by a Swiss Reporting Financial Institution as resident in a
Member State pursuant to due diligence procedures consistent with Annexes I and
II, or an estate of a decedent that was a resident of a Member State.
l) The term “Swiss Person” means an individual or Entity that is
identified by a Member State Reporting Financial Institution as resident in
Switzerland pursuant to due diligence procedures consistent with Annexes I and
II, or an estate of a decedent that was a resident of Switzerland.
2. Any capitalised term not otherwise defined in this Agreement will
have the meaning that it has at that time, (i) for Member States, under Council
Directive 2011/16/EU on administrative cooperation in the field of taxation or,
where applicable, the domestic law of the Member State applying the Agreement,
and (ii) for Switzerland, under its domestic law, such meaning being consistent
with the meaning set forth in Annexes I and II. 
Any term not
otherwise defined in this Agreement or in Annexes I or II will, unless the
context otherwise requires or the Competent Authority of a Member State and
Switzerland agree to a common meaning as provided for in Article 7 (as
permitted by domestic law), have the meaning that it has at that time under the
law of the jurisdiction concerned applying this Agreement, (i) for Member
States, under Council Directive 2011/16/EU on administrative cooperation in the
field of taxation or, where applicable, the domestic law of the Member State
concerned, and (ii) for Switzerland, under its domestic law, any meaning under
the applicable tax laws of the jurisdiction concerned (being a Member State or Switzerland) prevailing over a meaning given to the term under other laws of
that jurisdiction.
Article 2 
Automatic
Exchange of Information with Respect to Reportable Accounts 
1. Pursuant to the provisions of this Article and subject to the applicable
reporting and due diligence rules consistent with Annexes I and II, which shall
form an integral part of this Agreement, the Competent Authority of Switzerland
will annually exchange with each of the Member States’ Competent Authorities
and each of the Member States’ Competent Authorities will annually exchange
with the Competent Authority of Switzerland on an automatic basis the
information obtained pursuant to such rules and specified in paragraph 2. 
2. The information to be exchanged is, in the case of a Member State
with respect to each Swiss Reportable Account, and in the case of Switzerland
with respect to each Member State Reportable Account: 
a) the name, address, TIN and date and place of birth (in the case
of an individual) of each Reportable Person that is an Account Holder of the
account and, in the case of any Entity that is an Account Holder and that,
after application of due diligence procedures consistent with Annexes I and II,
is identified as having one or more Controlling Persons that is a Reportable
Person, the name, address, and TIN of the Entity and the name, address, TIN and
date and place of birth of each Reportable Person; 
b) the account number (or functional equivalent in the absence of an
account number); 
c) the name and identifying number (if any) of the Reporting
Financial Institution; 
d) the account balance or value (including, in the case of a Cash
Value Insurance Contract or Annuity Contract, the Cash Value or surrender
value) as of the end of the relevant calendar year or other appropriate
reporting period or, if the account was closed during such year or period, the
closure of the account; 
e) in the case of any Custodial Account: 
(i) the total gross amount of interest, the total gross amount of
dividends, and the total gross amount of other income generated with respect to
the assets held in the account, in each case paid or credited to the account
(or with respect to the account) during the calendar year or other appropriate
reporting period; and
(ii) the total gross proceeds from the sale or redemption of
Financial Assets paid or credited to the account during the calendar year or
other appropriate reporting period with respect to which the Reporting
Financial Institution acted as a custodian, broker, nominee, or otherwise as an
agent for the Account Holder;
f) in the case of any Depository Account, the total gross amount of
interest paid or credited to the account during the calendar year or other
appropriate reporting period; and 
g) in the case of any account not described in subparagraph 2(e) or
(f), the total gross amount paid or credited to the Account Holder with respect
to the account during the calendar year or other appropriate reporting period
with respect to which the Reporting Financial Institution is the obligor or
debtor, including the aggregate amount of any redemption payments made to the
Account Holder during the calendar year or other appropriate reporting period. 
Article 3 
Time and Manner of Automatic Exchange of
Information 
1. For the purposes of the exchange of information in Article 2, the
amount and characterisation of payments made with respect to a Reportable
Account may be determined in accordance with the principles of the tax laws of
the jurisdiction (being a Member
State or Switzerland) exchanging the information. 
2. For the purposes of the exchange of information in Article 2, the
information exchanged will identify the currency in which each relevant amount
is denominated.
3. With respect to paragraph 2 of Article 2, information is to be
exchanged with respect to the first year starting at the entry into force of
the Amending Protocol signed on [XXXX] and all subsequent years and will be
exchanged within nine months after the end of the calendar year to which the
information relates. 
4. The Competent Authorities will automatically exchange the
information described in Article 2 in a common reporting standard schema in
Extensible Markup Language. 
5. The Competent Authorities will agree on one or more methods for
data transmission including encryption standards. 
Article 4
Collaboration on Compliance and Enforcement
The Competent Authority of a Member State
will notify the Competent Authority of Switzerland and the Competent Authority
of Switzerland will notify the Competent Authority of a Member State when the
first-mentioned (notifying) Competent Authority has reason to believe that an
error may have led to incorrect or incomplete information reporting under
Article 2 or there is non-compliance by a Reporting Financial Institution with the
applicable reporting requirements and due diligence procedures consistent with
Annexes I and II. The notified Competent Authority will take all appropriate
measures available under its domestic law to address the errors or
non-compliance described in the notice.
Article 5
Exchange of Information upon Request
1. Notwithstanding the provisions of Article 2 and of any other
agreement providing for information exchange upon request between Switzerland
and any Member State, the Competent Authorities of Switzerland and any Member
State shall exchange upon request such information as is foreseeably relevant
for carrying out the provisions of this Agreement or to the administration or
enforcement of the domestic laws concerning taxes of every kind and description
imposed on behalf of Switzerland and the Member States, or of their political
subdivisions or local authorities, insofar as the taxation under such domestic
laws is not contrary to an applicable double tax agreement between Switzerland
and the Member State concerned. 
2. In no case shall the provisions of paragraph 1 of this Article
and of Article 6 be construed so as to impose on Switzerland or on a Member
State the obligation: 
a) to carry out administrative measures at variance with the laws
and administrative practice of Switzerland or that Member State; 
b) to supply information which is not obtainable under the laws or
in the normal course of the administration of Switzerland or that Member State;

c) to supply information which would disclose any trade, business,
industrial, commercial or professional secret or trade process, or information,
the disclosure of which would be contrary to public policy (ordre public).
3. If information is requested by a Member State or by Switzerland
acting as the requesting jurisdiction in accordance with this Article,
Switzerland or the Member State acting as the requested jurisdiction shall use
its information gathering measures to obtain the requested information, even
though that requested jurisdiction may not need such information for its own
tax purposes. The obligation contained in the preceding sentence is subject to
the limitations of paragraph 2 but in no case shall such limitations be
construed to permit the requested jurisdiction to decline to supply information
solely because it has no domestic interest in such information. 
4. In no case shall the provisions of paragraph 2 be construed to
permit Switzerland or a Member State to decline to supply information solely
because the information is held by a bank, other financial institution, nominee
or person acting in an agency or a fiduciary capacity or because it relates to
ownership interests in a person.
5. The Competent Authorities will agree on the standard forms to be
used as well as on one or more methods for data transmission including
encryption standards.
Article 6 
Confidentiality and protection of personal
data
1. Any information obtained by a jurisdiction (being a Member State
or Switzerland) under this Agreement shall be treated as confidential and protected
in the same manner as information obtained under the domestic law of that
jurisdiction and, to the extent necessary for the protection of personal data,
in accordance with the applicable domestic law, and safeguards which may be
specified by the jurisdiction supplying the information as required under its
domestic law.
2. Such information shall in any case be disclosed only to persons
or authorities (including courts and administrative or supervisory bodies)
concerned with the assessment, collection or recovery of, the enforcement or
prosecution in respect of, or the determination of appeals in relation to taxes
of that jurisdiction (being a Member State or Switzerland), or the oversight of
the above. Only the persons or authorities mentioned above may use the
information and then only for purposes spelled out in the preceding sentence.
They may, notwithstanding the provisions of paragraph 1, disclose it in public
court proceedings or in judicial decisions relating to such taxes. 
3. Notwithstanding the provisions of the preceding paragraphs,
information received by a jurisdiction (being a Member State or Switzerland)
may be used for other purposes when such information may be used for such other
purposes under the laws of the supplying jurisdiction (being, respectively,
Switzerland or a Member State) and the Competent Authority of that jurisdiction
authorises such use. Information provided by a jurisdiction (being a Member
State or Switzerland) to another jurisdiction (being, respectively, Switzerland
or a Member State) may be transmitted by the latter to a third jurisdiction
(being another Member State), subject to prior authorisation by the competent
authority of the first-mentioned jurisdiction, from which the information
originated. Information provided by one Member State to another Member State
under its applicable law implementing Council Directive 2011/16/EU on
administrative cooperation in the field of taxation may be transmitted to
Switzerland subject to prior authorisation by the Competent Authority of the
Member State from which the information originated.
4.
Each Competent Authority of a Member State or Switzerland will notify the other
Competent Authority, i.e. that of Switzerland or the specific Member State,
immediately regarding any breach of confidentiality, failure of safeguards and
any sanctions and remedial actions consequently imposed.
Article 7
Consultations and suspension of the
Agreement
1. If any difficulties in the implementation or interpretation of
this Agreement arise, any of the Competent Authorities of Switzerland or a
Member State may request consultations between the Competent Authority of
Switzerland and one or more of the Competent Authorities of Member States to
develop appropriate measures to ensure that this Agreement is fulfilled. Those
Competent Authorities shall immediately notify the European Commission and the
Competent Authorities of the other Member States of the results of their
consultations. In relation to issues of interpretation the European Commission
may take part in consultations at the request of any of the Competent
Authorities.
2. If the question relates to significant non-compliance with the
provisions of this Agreement, and the procedure described in paragraph 1 does
not provide for an adequate settlement, the Competent Authority of a Member
State or Switzerland may suspend the exchange of information under this
Agreement towards, respectively, Switzerland or a specific Member State, by
giving notice in writing to the other Competent Authority concerned. Such
suspension will have immediate effect. For the purposes of this paragraph,
significant non-compliance includes, but is not limited to, non-compliance with
the confidentiality and data safeguard provisions of this Agreement, a failure
by the Competent Authority of a Member State or Switzerland to provide timely
or adequate information as required under this Agreement or defining the status
of Entities or accounts as Non-Reporting Financial Institutions and Excluded
Accounts in a manner that frustrates the purposes of the Agreement.
Article 8
Amendments
1. The Contracting Parties shall consult each other at each occasion
where an important change is adopted at OECD level to any of the elements of
the Global Standard or – if deemed necessary by the Contracting Parties – in
order to improve the technical functioning of this Agreement or to assess and
reflect other international developments. The consultations shall be held
within one month of a request by either Contracting Party or as soon as possible
in urgent cases.
2. On the basis of such a contact, the Contracting Parties may
consult each other in order to examine whether changes to this Agreement are
necessary.
3. For the purposes of the consultations referred to in paragraphs 1
and 2 each Contracting Party shall inform the other Contracting Party of
possible developments which could affect the proper functioning of this
Agreement. This shall also include any relevant agreement between one of the
Contracting Parties and a third State.
4. Following the consultations, this Agreement may be amended by
means of a protocol or a new agreement between the Contracting Parties.
5. Where a Contracting Party has implemented a change, adopted by
the OECD, to the Global Standard, and wishes to make a corresponding change to
Annexes I and/or II to this Agreement, it shall notify the other Contracting
Party thereof. A consultation procedure between the Contracting Parties shall
take place within one month from the notification. Notwithstanding paragraph 4,
where the Contracting Parties reach a consensus within this consultation
procedure on the change that should be made to Annexes I and/or II to this
Agreement, and for the period of time necessary for implementation of the
change by a formal amendment of the Agreement, the Contracting Party that
requested the change may provisionally apply the revised version of Annexes I
and/or II to this Agreement, as endorsed by the consultation procedure, as of
the first day of January of the year following the conclusion of the aforementioned
procedure.
A Contracting
Party is considered as having implemented a change, adopted by the OECD, to the
Global Standard:
a) for Member States: when the change has been incorporated in
Council Directive 2011/16/EU on administrative cooperation in the field of
taxation
b) for Switzerland: when the change has been incorporated in an
agreement with a third State or into domestic legislation.
Article 9
Dividends, interest and royalty payments
between companies
1. Without prejudice to the application of domestic or
agreement-based provisions for the prevention of fraud or abuse in Switzerland
and in Member States, dividends paid by subsidiary companies to parent
companies shall not be subject to taxation in the source State where:
- the parent company
has a direct minimum holding of 25 % of the capital of such a subsidiary for at
least two years, and,
- one company is
resident for tax purposes in a Member State and the other company is resident
for tax purposes in Switzerland, and,
- under any double
tax agreements with any third States neither company is resident for tax
purposes in that third State, and,
- both companies
are subject to corporation tax without being exempted and both adopt the form
of a limited company [1].
2. Without prejudice to the application of domestic or
agreement-based provisions for the prevention of fraud or abuse in Switzerland
and in Member States, interest and royalty payments made between associated
companies or their permanent establishments shall not be subject to taxation in
the source State, where:
- such companies
are affiliated by a direct minimum holding of 25 % for at least two years or
are both held by a third company which has directly a minimum holding of 25 %
both in the capital of the first company and in the capital of the second
company for at least two years, and;
- where a
company is resident for tax purposes or a permanent establishment is located in
a Member State and the other company is resident for tax purposes or other
permanent establishment situated in Switzerland, and;
- under any
double tax agreements with any third States none of the companies is resident
for tax purposes in that third State and none of the permanent establishments
is situated in that third State, and;
- all companies
are subject to corporation tax without being exempted in particular on interest
and royalty payments and each adopts the form of a limited company [1].
3. Existing double taxation agreements between Switzerland and the
Member States which provide for a more favourable taxation treatment of
dividends, interest and royalty payments shall remain unaffected.
Article 10
Termination of Agreement
Either Contracting Party may terminate this
Agreement by giving notice of termination in writing to the other Contracting
Party. Such termination will become effective on the first day of the month
following the expiration of a period of 12 months after the date of the notice
of termination. In the event of termination, all information previously
received under this Agreement will remain confidential and subject to Article 6
of this Agreement.
Article 11 
Territorial Scope
This Agreement shall apply, on the one
hand, to the territories of the Member States in which the Treaty establishing
the European Union is applied and under the conditions laid down in that Treaty
and, on the other hand, to Switzerland.
ANNEX I 
Common Standard on Reporting
and Due Diligence for financial account information ("Common Reporting
Standard") 
Section I: General Reporting
Requirements 
A. Subject to paragraphs C through E, each Reporting Financial
Institution must report to the Competent Authority of its jurisdiction (being a
Member State or Switzerland) the following information with respect to each
Reportable Account of such Reporting Financial Institution: 
1.
the name, address,  jurisdiction(s) of residence (being a Member State or
Switzerland), TIN(s) and date and place of birth (in the case of an individual)
of each Reportable Person that is an Account Holder of the account and, in the
case of any Entity that is an Account Holder and that, after application of the
due diligence procedures consistent with Sections V, VI and VII, is identified
as having one or more Controlling Persons that is a Reportable Person, the
name, address, jurisdiction(s) (being a Member State, Switzerland or other
jurisdiction) of residence and TIN(s) of the Entity and the name, address,
jurisdiction(s) (being a Member State or Switzerland) of residence, TIN(s) and
date and place of birth of each Reportable Person; 
2.
the account number (or functional equivalent in the absence of an account
number); 
3.
the name and identifying number (if any) of the Reporting Financial
Institution; 
4.
the account balance or value (including, in the case of a Cash Value Insurance
Contract or Annuity Contract, the Cash Value or surrender value) as of the end
of the relevant calendar year or other appropriate reporting period or, if the
account was closed during such year or period, the closure of the account; 
5. in the case of
any Custodial Account: 
a)
the total gross amount of interest, the total gross amount of dividends, and
the total gross amount of other income generated with respect to the assets
held in the account, in each case paid or credited to the account (or with
respect to the account) during the calendar year or other appropriate reporting
period; and 
b)
the total gross proceeds from the sale or redemption of Financial Assets paid
or credited to the account during the calendar year or other appropriate
reporting period with respect to which the Reporting Financial Institution
acted as a custodian, broker, nominee, or otherwise as an agent for the Account
Holder; 
6. in the case of any Depository Account,
the total gross amount of interest paid or credited to the account during the
calendar year or other appropriate reporting period; and 
7.
in the case of any account not described in subparagraph A(5) or (6), the total
gross amount paid or credited to the Account Holder with respect to the account
during the calendar year or other appropriate reporting period with respect to
which the Reporting Financial Institution is the obligor or debtor, including
the aggregate amount of any redemption payments made to the Account Holder
during the calendar year or other appropriate reporting period. 
B. The information reported must identify
the currency in which each amount is denominated. 
C. Notwithstanding subparagraph A(1), with
respect to each Reportable Account that is a Preexisting Account, the TIN(s) or
date of birth is not required to be reported if such TIN(s) or date of birth is
not in the records of the Reporting Financial Institution and is not otherwise
required to be collected by such Reporting Financial Institution under domestic
law or any European Union legal instrument (if applicable). However, a
Reporting Financial Institution is required to use reasonable efforts to obtain
the TIN(s) and date of birth with respect to Preexisting Accounts by the end of
the second calendar year following the year in which Preexisting Accounts were
identified as Reportable Accounts. 
D. Notwithstanding subparagraph A(1), the TIN
is not required to be reported if a TIN is not issued by the relevant Member
State, Switzerland or other jurisdiction of residence. 
E. Notwithstanding subparagraph A(1), the
place of birth is not required to be reported unless the Reporting Financial
Institution is otherwise required to obtain and report it under domestic law
and it is available in the electronically searchable data maintained by the
Reporting Financial Institution. 
Section II: General Due
Diligence Requirements 
A. An account is treated as a Reportable
Account beginning as of the date it is identified as such pursuant to the due
diligence procedures in Sections II through VII and, unless otherwise provided,
information with respect to a Reportable Account must be reported annually in
the calendar year following the year to which the information relates. 
B. The balance or
value of an account is determined as of the last day of the calendar year or
other appropriate reporting period. 
C. Where a balance or value threshold is to
be determined as of the last day of a calendar year, the relevant balance or
value must be determined as of the last day of the reporting period that ends
with or within that calendar year. 
D. Each Member State or Switzerland may allow
Reporting Financial Institutions to use service providers to fulfil the
reporting and due diligence obligations imposed on such Reporting Financial
Institutions, as contemplated in domestic law, but these obligations shall
remain the responsibility of the Reporting Financial Institutions. 
E. Each Member State or Switzerland may allow
Reporting Financial Institutions to apply the due diligence procedures for New
Accounts to Preexisting Accounts, and the due diligence procedures for High
Value Accounts to Lower Value Accounts. Where a Member State or Switzerland
allow New Account due diligence procedures to be used for Preexisting Accounts,
the rules otherwise applicable to Preexisting Accounts continue to apply.
Section III: Due Diligence
for Preexisting Individual Accounts 
The following procedures apply for purposes
of identifying Reportable Accounts among Preexisting Individual Accounts. 
A. Accounts Not Required to be Reviewed,
Identified, or Reported. A Preexisting Individual Account that is a Cash Value
Insurance Contract or an Annuity Contract is not required to be reviewed,
identified or reported, provided the Reporting Financial Institution is
effectively prevented by law from selling such Contract to residents of a
Reportable Jurisdiction.
B. Lower Value Accounts. The following
procedures apply with respect to Lower Value Accounts. 
1.
Residence Address. If the Reporting Financial Institution has in its records a
current residence address for the individual Account Holder based on
Documentary Evidence, the Reporting Financial Institution may treat the
individual Account Holder as being a resident for tax purposes of the Member
State or Switzerland or other jurisdiction in which the address is located for
purposes of determining whether such individual Account Holder is a Reportable
Person. 
2.
Electronic Record Search. If the Reporting Financial Institution does not rely
on a current residence address for the individual Account Holder based on
Documentary Evidence as set forth in subparagraph B(1), the Reporting Financial
Institution must review electronically searchable data maintained by the
Reporting Financial Institution for any of the following indicia and apply
subparagraphs B(3) to (6): 
a)
identification of the Account Holder as a resident of a Reportable
Jurisdiction; 
b)
current mailing or residence address (including a post office box) in a
Reportable Jurisdiction; 
c)
one or more telephone numbers in a Reportable Jurisdiction and no telephone
number in Switzerland or the Member State of the Reporting Financial
Institution, as the context requires; 
d)
standing instructions (other than with respect to a Depository Account) to
transfer funds to an account maintained in a Reportable Jurisdiction; 
e)
currently effective power of attorney or signatory authority granted to a
person with an address in a Reportable Jurisdiction; or 
f)
a “hold mail” instruction or “in-care-of” address in a Reportable Jurisdiction
if the Reporting Financial Institution does not have any other address on file
for the Account Holder. 
3.
If none of the indicia listed in subparagraph B(2) are discovered in the
electronic search, then no further action is required until there is a change
in circumstances that results in one or more indicia being associated with the
account, or the account becomes a High Value Account. 
4.
If any of the indicia listed in subparagraph B(2)(a) through (e) are discovered
in the electronic search, or if there is a change in circumstances that results
in one or more indicia being associated with the account, then the Reporting
Financial Institution must treat the Account Holder as a resident for tax
purposes of each Reportable Jurisdiction for which an indicium is identified,
unless it elects to apply subparagraph B(6) and one of the exceptions in that
subparagraph applies with respect to that account. 
5.
If a “hold mail” instruction or “in-care-of” address is discovered in the
electronic search and no other address and none of the other indicia listed in
subparagraph B(2)(a) through (e) are identified for the Account Holder, the
Reporting Financial Institution must, in the order most appropriate to the
circumstances, apply the paper record search described in subparagraph C(2), or
seek to obtain from the Account Holder a self-certification or Documentary
Evidence to establish the residence(s) for tax purposes of such Account Holder.
If the paper search fails to establish an indicium and the attempt to obtain
the self-certification or Documentary Evidence is not successful, the Reporting
Financial Institution must report the account to the Competent Authority of its
Member State or Switzerland, as the context requires, as an undocumented
account. 
6.
Notwithstanding a finding of indicia under subparagraph B(2), a Reporting
Financial Institution is not required to treat an Account Holder as a resident
of a Reportable Jurisdiction if: 
a) the Account Holder information contains a current
mailing or residence address in the Reportable Jurisdiction, one or more
telephone numbers in that Reportable Jurisdiction (and no telephone number in
Switzerland or the Member State of the Reporting Financial Institution, as the
context requires) or standing instructions (with respect to Financial Accounts other
than Depository Accounts) to transfer funds to an account maintained in a
Reportable Jurisdiction, and the Reporting Financial Institution obtains, or
has previously reviewed and maintains a record of: 
i.
a self-certification from the Account Holder of the jurisdiction(s) of
residence (being a Member State, Switzerland or other jurisdictions) of such
Account Holder that does not include such Reportable Jurisdiction; and 
ii.
Documentary Evidence establishing the Account Holder’s non-reportable status. 
b) the Account Holder information contains a currently
effective power of attorney or signatory authority granted to a person with an
address in the Reportable Jurisdiction, and the Reporting Financial Institution
obtains, or has previously reviewed and maintains a record of: 
i. a self-certification from the Account Holder of the
jurisdiction(s) of residence (being a Member State, Switzerland or other
jurisdictions) of such Account Holder that does not include such Reportable
Jurisdiction; or 
ii. Documentary Evidence establishing the Account
Holder’s non-reportable status. 
C. Enhanced Review Procedures for High Value
Accounts. The following enhanced review procedures apply with respect to High
Value Accounts. 
1.
Electronic Record Search. With respect to High Value Accounts, the Reporting
Financial Institution must review electronically searchable data maintained by
the Reporting Financial Institution for any of the indicia described in
subparagraph B(2). 
2.
Paper Record Search. If the Reporting Financial Institution’s electronically
searchable databases include fields for, and capture all of the information
described in, subparagraph C(3), then a further paper record search is not
required. If the electronic databases do not capture all of this information,
then with respect to a High Value Account, the Reporting Financial Institution
must also review the current customer master file and, to the extent not
contained in the current customer master file, the following documents
associated with the account and obtained by the Reporting Financial Institution
within the last five years for any of the indicia described in subparagraph
B(2): 
a)
the most recent Documentary Evidence collected with respect to the account; 
b)
the most recent account opening contract or documentation; 
c)
the most recent documentation obtained by the Reporting Financial Institution
pursuant to AML/KYC Procedures or for other regulatory purposes; 
d)
any power of attorney or signature authority forms currently in effect; and 
e)
any standing instructions (other than with respect to a Depository Account) to
transfer funds currently in effect. 
3. Exception To The Extent Databases Contain Sufficient
Information. A Reporting Financial Institution is not required to perform the
paper record search described in subparagraph C(2) to the extent the Reporting
Financial Institution’s electronically searchable information includes the
following: 
a)
the Account Holder’s residence status; 
b)
the Account Holder’s residence address and mailing address currently on file
with the Reporting Financial Institution; 
c)
the Account Holder’s telephone number(s) currently on file, if any, with the
Reporting Financial Institution; 
d)
in the case of Financial Accounts other than Depository Accounts, whether there
are standing instructions to transfer funds in the account to another account
(including an account at another branch of the Reporting Financial Institution
or another Financial Institution); 
e)
whether there is a current “in-care-of” address or “hold mail” instruction for
the Account Holder; and 
f)
whether there is any power of attorney or signatory authority for the account. 
4.
Relationship Manager Inquiry for Actual Knowledge. In addition to the
electronic and paper record searches described in subparagraphs C(1) and (2),
the Reporting Financial Institution must treat as a Reportable Account any High
Value Account assigned to a relationship manager (including any Financial
Accounts aggregated with that High Value Account) if the relationship manager
has actual knowledge that the Account Holder is a Reportable Person. 
5.
Effect of Finding Indicia. 
a)
If none of the indicia listed in subparagraph B(2) are discovered in the
enhanced review of High Value Accounts described in paragraph C, and the account
is not identified as held by a Reportable Person in subparagraph C(4), then
further action is not required until there is a change in circumstances that
results in one or more indicia being associated with the account. 
b)
If any of the indicia listed in subparagraphs B(2)(a) through (e) are
discovered in the enhanced review of High Value Accounts described in paragraph
C, or if there is a subsequent change in circumstances that results in one or
more indicia being associated with the account, then the Reporting Financial
Institution must treat the account as a Reportable Account with respect to each
Reportable Jurisdiction for which an indicium is identified unless it elects to
apply subparagraph B(6) and one of the exceptions in that subparagraph applies
with respect to that account. 
c)
If a “hold mail” instruction or “in-care-of” address is discovered in the
enhanced review of High Value Accounts described in paragraph C, and no other
address and none of the other indicia listed in subparagraphs B(2)(a) through
(e) are identified for the Account Holder, the Reporting Financial Institution
must obtain from such Account Holder a self-certification or Documentary
Evidence to establish the residence(s) for tax purposes of the Account Holder.
If the Reporting Financial Institution cannot obtain such self-certification or
Documentary Evidence, it must report the account to the Competent Authority of
its Member State or Switzerland, as the context requires, as an undocumented
account. 
6.
If a Preexisting Individual Account is not a High Value Account as of 31
December preceding the entry into force of the Amending
Protocol signed on [XXXX], but
becomes a High Value Account as of the last day of a subsequent calendar year,
the Reporting Financial Institution must complete the enhanced review
procedures described in paragraph C with respect to such account within the
calendar year following the year in which the account becomes a High Value
Account. If based on this review such account is identified as a Reportable
Account, the Reporting Financial Institution must report the required
information about such account with respect to the year in which it is
identified as a Reportable Account and subsequent years on an annual basis,
unless the Account Holder ceases to be a Reportable Person. 
7.
Once a Reporting Financial Institution applies the enhanced review procedures
described in paragraph C to a High Value Account, the Reporting Financial
Institution is not required to re-apply such procedures, other than the relationship
manager inquiry described in subparagraph C(4), to the same High Value Account
in any subsequent year unless the account is undocumented where the Reporting
Financial Institution should re-apply them annually until such account ceases
to be undocumented. 
8.
If there is a change of circumstances with respect to a High Value Account that
results in one or more indicia described in subparagraph B(2) being associated
with the account, then the Reporting Financial Institution must treat the
account as a Reportable Account with respect to each Reportable Jurisdiction
for which an indicium is identified unless it elects to apply subparagraph B(6)
and one of the exceptions in that subparagraph applies with respect to that
account. 
9.
A Reporting Financial Institution must implement procedures to ensure that a
relationship manager identifies any change in circumstances of an account. For
example, if a relationship manager is notified that the Account Holder has a
new mailing address in a Reportable Jurisdiction, the Reporting Financial
Institution is required to treat the new address as a change in circumstances
and, if it elects to apply subparagraph B(6), is required to obtain the
appropriate documentation from the Account Holder. 
D. Review of Preexisting High Value
Individual Accounts must be completed within one year of the entry into force
of the Amending Protocol signed on [XXXX]. Review of Preexisting Lower Value
Individual Accounts must be completed within two years of the entry into force
of the Amending Protocol signed on [XXXX].
E. Any Preexisting Individual Account that
has been identified as a Reportable Account under this Section must be treated
as a Reportable Account in all subsequent years, unless the Account Holder
ceases to be a Reportable Person. 
Section IV: Due Diligence
for New Individual Accounts 
The following procedures apply
for purposes of identifying Reportable Accounts among New Individual Accounts. 
A. With respect to New Individual Accounts,
upon account opening, the Reporting Financial Institution must obtain a
self-certification, which may be part of the account opening documentation,
that allows the Reporting Financial Institution to determine the Account
Holder’s residence(s) for tax purposes and confirm the reasonableness of such
self-certification based on the information obtained by the Reporting Financial
Institution in connection with the opening of the account, including any
documentation collected pursuant to AML/KYC Procedures. 
B. If the self-certification establishes that
the Account Holder is resident for tax purposes in a Reportable Jurisdiction,
the Reporting Financial Institution must treat the account as a Reportable
Account and the self-certification must also include the Account Holder’s TIN
with respect to such Reportable Jurisdiction (subject to paragraph D of Section
I) and date of birth. 
C. If there is a change of circumstances with
respect to a New Individual Account that causes the Reporting Financial
Institution to know, or have reason to know, that the original
self-certification is incorrect or unreliable, the Reporting Financial
Institution cannot rely on the original self-certification and must obtain a
valid self-certification that establishes the residence(s) for tax purposes of
the Account Holder. 
Section V: Due Diligence for
Preexisting Entity Accounts 
The following procedures apply for purposes of
identifying Reportable Accounts among Preexisting Entity Accounts. 
A. Entity Accounts Not Required to Be
Reviewed, Identified or Reported. Unless the Reporting Financial Institution
elects otherwise, either with respect to all Preexisting Entity Accounts or,
separately, with respect to any clearly identified group of such accounts, a
Preexisting Entity Account with an aggregate account balance or value that does
not exceed USD 250 000 or an equivalent amount denominated in the domestic
currency of each Member State or Switzerland as of 31 December preceding the
entry into force of the Amending Protocol signed on
[XXXX], is not required to be
reviewed, identified, or reported as a Reportable Account until the aggregate
account balance or value exceeds that amount as of the last day of any
subsequent calendar year. 
B. Entity Accounts Subject to Review. A
Preexisting Entity Account that has an aggregate account balance or value that
exceeds USD 250 000 or an equivalent amount denominated in the domestic
currency of each Member State or Switzerland, as of 31 December preceding the
entry into force of the Amending Protocol signed on
[XXXX], and a Preexisting
Entity Account that does not exceed as of 31 December preceding the entry into
force of the Amending Protocol signed on [XXXX], that amount but the aggregate account
balance or value of which exceeds  such amount as of the last day of any
subsequent calendar year, must be reviewed in accordance with the procedures
set forth in paragraph D. 
C. Entity Accounts With Respect to Which
Reporting Is Required. With respect to Preexisting Entity Accounts described in
paragraph B, only accounts that are held by one or more Entities that are
Reportable Persons, or by Passive NFEs with one or more Controlling Persons who
are Reportable Persons, shall be treated as Reportable Accounts. 
D. Review Procedures for Identifying Entity
Accounts With Respect to Which Reporting Is Required. For Preexisting Entity
Accounts described in paragraph B, a Reporting Financial Institution must apply
the following review procedures to determine whether the account is held by one
or more Reportable Persons, or by Passive NFEs with one or more Controlling
Persons who are Reportable Persons: 
1. Determine Whether the Entity Is a Reportable Person. 
a)
Review information maintained for regulatory or customer relationship purposes
(including information collected pursuant to AML/KYC Procedures) to determine
whether the information indicates that the Account Holder is resident in a
Reportable Jurisdiction. For this purpose, information indicating that the
Account Holder is resident in a Reportable Jurisdiction includes a place of
incorporation or organisation, or an address in a Reportable Jurisdiction. 
b)
If the information indicates that the Account Holder is resident in a
Reportable Jurisdiction, the Reporting Financial Institution must treat the
account as a Reportable Account unless it obtains a self-certification from the
Account Holder, or reasonably determines based on information in its possession
or that is publicly available, that the Account Holder is not a Reportable
Person. 
2. Determine Whether the Entity is a Passive NFE with
One or More Controlling Persons Who Are Reportable Persons. With respect to an
Account Holder of a Preexisting Entity Account (including an Entity that is a
Reportable Person), the Reporting Financial Institution must determine whether
the Account Holder is a Passive NFE with one or more Controlling Persons who
are Reportable Persons. If any of the Controlling Persons of a Passive NFE is a
Reportable Person, then the account must be treated as a Reportable Account. In
making these determinations the Reporting Financial Institution must follow the
guidance in subparagraphs D(2)(a) through (c) in the order most appropriate
under the circumstances. 
a) Determining whether the Account Holder is a Passive
NFE. For purposes of determining whether the Account Holder is a Passive NFE,
the Reporting Financial Institution must obtain a self-certification from the
Account Holder to establish its status, unless it has information in its
possession or that is publicly available, based on which it can reasonably
determine that the Account Holder is an Active NFE or a Financial Institution
other than an Investment Entity described in subparagraph A(6)(b) of Section
VIII that is not a Participating Jurisdiction Financial Institution. 
b) Determining the Controlling Persons of an Account
Holder. For the purposes of determining the Controlling Persons of an Account
Holder, a Reporting Financial Institution may rely on information collected and
maintained pursuant to AML/KYC Procedures. 
c) Determining whether a Controlling Person of a Passive
NFE is a Reportable Person. For the purposes of determining whether a
Controlling Person of a Passive NFE is a Reportable Person, a Reporting
Financial Institution may rely on: 
i. information collected and maintained pursuant to
AML/KYC Procedures in the case of a Preexisting Entity Account held by one or
more NFEs with an aggregate account balance or value that does not exceed USD 1
000 000 or an equivalent amount denominated in the domestic currency of each
Member State or Switzerland; or 
ii. a
self-certification from the Account Holder or such Controlling Person of the
jurisdiction(s) (being a Member State, Switzerland or other jurisdictions) in
which the Controlling Person is resident for tax purposes. 
E. Timing of Review and Additional Procedures Applicable to
Preexisting Entity Accounts. 
1. Review of
Preexisting Entity Accounts with an aggregate account balance or value that
exceeds USD 250 000 or an equivalent amount denominated in the domestic
currency of each Member State or Switzerland, as of 31 December preceding the
entry into force of the Amending Protocol signed on
[XXXX], must be completed
within two years of the entry into force. 
2. Review of
Preexisting Entity Accounts with an aggregate account balance or value that
does not exceed USD 250 000 or an equivalent amount denominated in the domestic
currency of each Member State or Switzerland, as of 31 December preceding the
entry into force of the Amending Protocol signed on
[XXXX], but exceeds that
amount as of 31 December of a subsequent year, must be completed within the
calendar year following the year in which the aggregate account balance or
value exceeds such amount. 
3. If there is a
change of circumstances with respect to a Preexisting Entity Account that
causes the Reporting Financial Institution to know, or have reason to know,
that the self-certification or other documentation associated with an account
is incorrect or unreliable, the Reporting Financial Institution must
re-determine the status of the account in accordance with the procedures set
forth in paragraph D. 
Section VI: Due Diligence
for New Entity Accounts 
The following
procedures apply for purposes of identifying Reportable Accounts among New
Entity Accounts. 
A. Review Procedures for
Identifying Entity Accounts With Respect to Which Reporting Is Required. For
New Entity Accounts, a Reporting Financial Institution must apply the following
review procedures to determine whether the account is held by one or more
Reportable Persons, or by Passive NFEs with one or more Controlling Persons who
are Reportable Persons: 
1. Determine Whether the Entity Is a Reportable Person. 
a) Obtain a self-certification, which may be part of the
account opening documentation, that allows the Reporting Financial Institution to
determine the Account Holder’s residence(s) for tax purposes and confirm the
reasonableness of such self-certification based on the information obtained by
the Reporting Financial Institution in connection with the opening of the
account, including any documentation collected pursuant to AML/KYC Procedures.
If the Entity certifies that it has no residence for tax purposes, the
Reporting Financial Institution may rely on the address of the principal office
of the Entity to determine the residence of the Account Holder. 
b) If the self-certification indicates that the Account
Holder is resident in a Reportable Jurisdiction, the Reporting Financial
Institution must treat the account as a Reportable Account unless it reasonably
determines based on information in its possession or that is publicly
available, that the Account Holder is not a Reportable Person with respect to
such Reportable Jurisdiction. 
2. Determine Whether the Entity is a Passive NFE with
One or More Controlling Persons Who Are Reportable Persons. With respect to an
Account Holder of a New Entity Account (including an Entity that is a
Reportable Person), the Reporting Financial Institution must determine whether
the Account Holder is a Passive NFE with one or more Controlling Persons who
are Reportable Persons. If any of the Controlling Persons of a Passive NFE is a
Reportable Person, then the account must be treated as a Reportable Account. In
making these determinations the Reporting Financial Institution must follow the
guidance in subparagraphs A(2)(a) through (c) in the order most appropriate
under the circumstances. 
a) Determining whether the Account Holder is a Passive
NFE. For purposes of determining whether the Account Holder is a Passive NFE,
the Reporting Financial Institution must rely on a self-certification from the
Account Holder to establish its status, unless it has information in its
possession or that is publicly available, based on which it can reasonably
determine that the Account Holder is an Active NFE or a Financial Institution
other than an Investment Entity described in subparagraph A(6)(b) of Section
VIII that is not a Participating Jurisdiction Financial Institution . 
b) Determining the Controlling Persons of an Account
Holder. For purposes of determining the Controlling Persons of an Account
Holder, a Reporting Financial Institution may rely on information collected and
maintained pursuant to AML/KYC Procedures. 
c) Determining whether a Controlling Person of a Passive
NFE is a Reportable Person. For purposes of determining whether a Controlling
Person of a Passive NFE is a Reportable Person, a Reporting Financial
Institution may rely on a self-certification from the Account Holder or such
Controlling Person. 
Section VII:
Special Due Diligence Rules 
The following
additional rules apply in implementing the due diligence procedures described
above: 
A. Reliance on Self-Certifications and
Documentary Evidence. A Reporting Financial Institution may not rely on a
self-certification or Documentary Evidence if the Reporting Financial
Institution knows or has reason to know that the self-certification or
Documentary Evidence is incorrect or unreliable. 
B. Alternative Procedures for Financial
Accounts Held by Individual Beneficiaries of a Cash Value Insurance Contract or
an Annuity Contract and for a Group Cash Value Insurance Contract or Group
Annuity Contract. A Reporting Financial Institution may presume that an
individual beneficiary (other than the owner) of a Cash Value Insurance
Contract or an Annuity Contract receiving a death benefit is not a Reportable
Person and may treat such Financial Account as other than a Reportable Account
unless the Reporting Financial Institution has actual knowledge, or reason to
know, that the beneficiary is a Reportable Person. A Reporting Financial
Institution has reason to know that a beneficiary of a Cash Value Insurance
Contract or an Annuity Contract is a Reportable Person if the information
collected by the Reporting Financial Institution and associated with the
beneficiary contains indicia as described in paragraph B of Section III. If a
Reporting Financial Institution has actual knowledge, or reason to know, that
the beneficiary is a Reportable Person, the Reporting Financial Institution
must follow the procedures in paragraph B of Section III. 
A Member State or
Switzerland shall have the option to allow Reporting Financial Institutions to
treat a Financial Account that is a member’s interest in a Group Cash Value
Insurance Contract or Group Annuity Contract as a Financial Account that is not
a Reportable Account until the date on which an amount is payable to the
employee/certificate holder or beneficiary, if the Financial Account that is a
member’s interest in a Group Cash Value Insurance Contract or Group Annuity
Contract meets the following requirements:
a)   the
Group Cash Value Insurance Contract or Group Annuity Contract is issued to an
employer and covers 25 or more employees/certificate holders;
b)   the
employee/certificate holders are entitled to receive any contract value related
to their interests and to name beneficiaries for the benefit payable upon the
employee’s death; and
c)   the
aggregate amount payable to any employee/certificate holder or beneficiary does
not exceed USD 1 000 000 or an equivalent amount denominated in the domestic
currency of each Member State or Switzerland .
The term “Group
Cash Value Insurance Contract” means a Cash Value Insurance Contract that (i)
provides coverage on individuals who are affiliated through an employer, trade
association, labour union, or other association or group; and (ii) charges a
premium for each member of the group (or member of a class within the group)
that is determined without regard to the individual health characteristics
other than age, gender, and smoking habits of the member (or class of members)
of the group. 
The term “Group Annuity Contract” means an Annuity
Contract under which the obligees are individuals who are affiliated through an
employer, trade association, labour union, or other association or group.
Before the entry into force of the Amending
Protocol signed on [XXXX], Member States shall
communicate to Switzerland and Switzerland shall communicate to the European
Commission whether they have exercised the option foreseen in this paragraph.
The European Commission may coordinate the transmission of the communication
from Member States to Switzerland and the European Commission shall transmit
the communication from Switzerland to all Member States. All further changes to
the exercise of that option by a Member State or Switzerland shall be
communicated in the same manner.
C. Account Balance Aggregation and Currency Rules. 
1.
Aggregation of Individual Accounts. For purposes of determining the aggregate
balance or value of Financial Accounts held by an individual, a Reporting
Financial Institution is required to aggregate all Financial Accounts
maintained by the Reporting Financial Institution, or by a Related Entity, but
only to the extent that the Reporting Financial Institution’s computerised
systems link the Financial Accounts by reference to a data element such as
client number or TIN, and allow account balances or values to be aggregated.
Each holder of a jointly held Financial Account shall be attributed the entire
balance or value of the jointly held Financial Account for purposes of applying
the aggregation requirements described in this subparagraph. 
2.
Aggregation of Entity Accounts. For purposes of determining the aggregate
balance or value of Financial Accounts held by an Entity, a Reporting Financial
Institution is required to take into account all Financial Accounts that are
maintained by the Reporting Financial Institution, or by a Related Entity, but
only to the extent that the Reporting Financial Institution’s computerised
systems link the Financial Accounts by reference to a data element such as
client number or TIN, and allow account balances or values to be aggregated.
Each holder of a jointly held Financial Account shall be attributed the entire
balance or value of the jointly held Financial Account for purposes of applying
the aggregation requirements described in this subparagraph. 
3.
Special Aggregation Rule Applicable to Relationship Managers. For purposes of
determining the aggregate balance or value of Financial Accounts held by a
person to determine whether a Financial Account is a High Value Account, a
Reporting Financial Institution is also required, in the case of any Financial
Accounts that a relationship manager knows, or has reason to know, are directly
or indirectly owned, controlled, or established (other than in a fiduciary
capacity) by the same person, to aggregate all such accounts. 
4.
Amounts Read to Include Equivalent in Other Currencies. All dollar amounts or
amounts denominated in the domestic currency of each Member State or
Switzerland shall be read to include equivalent amounts in other currencies, as
determined by domestic law. 
Section VIII: Defined Terms 
The following
terms have the meanings set forth below: 
A. Reporting Financial Institution 
1.
The term “Reporting Financial Institution” means any Member State Financial
Institution or Swiss Financial Institution, as the context requires, that is
not a Non-Reporting Financial Institution. 
2.
The term “Participating Jurisdiction Financial Institution” means (i) any Financial
Institution that is resident in a Participating Jurisdiction, but excludes any
branch of that Financial Institution that is located outside such Participating
Jurisdiction, and (ii) any branch of a Financial Institution that is not
resident in a Participating Jurisdiction, if that branch is located in such
Participating Jurisdiction. 
3.
The term “Financial Institution” means a Custodial Institution, a Depository
Institution, an Investment Entity, or a Specified Insurance Company. 
4.
The term “Custodial Institution” means any Entity that holds, as a substantial
portion of its business, Financial Assets for the account of others. An Entity
holds Financial Assets for the account of others as a substantial portion of
its business if the Entity’s gross income attributable to the holding of
Financial Assets and related financial services equals or exceeds 20 % of the
Entity’s gross income during the shorter of: (i) the three-year period that
ends on 31 December (or the final day of a non-calendar year accounting period)
prior to the year in which the determination is being made; or (ii) the period
during which the Entity has been in existence. 
5.
The term “Depository Institution” means any Entity that accepts deposits in the
ordinary course of a banking or similar business. 
6.
The term “Investment Entity” means any Entity: 
a) which primarily conducts as a business one or more of
the following activities or operations for or on behalf of a customer: 
i. trading in money market instruments (cheques, bills, certificates
of deposit, derivatives, etc.); foreign exchange; exchange, interest rate and
index instruments; transferable securities; or commodity futures trading; 
ii. individual and collective portfolio management; or 
iii. otherwise investing, administering, or managing
Financial Assets or money on behalf of other persons; 
or 
b)
the gross income of which is primarily attributable to investing, reinvesting,
or trading in Financial Assets, if the Entity is managed by another Entity that
is a Depository Institution, a Custodial Institution, a Specified Insurance
Company, or an Investment Entity described in subparagraph A(6)(a). 
An Entity is
treated as primarily conducting as a business one or more of the activities
described in subparagraph A(6)(a), or an Entity’s gross income is primarily
attributable to investing, reinvesting, or trading in Financial Assets for the
purposes of subparagraph A(6)(b), if the Entity’s gross income attributable to
the relevant activities equals or exceeds 50 % of the Entity’s gross income
during the shorter of: (i) the three-year period ending on 31 December of the
year preceding the year in which the determination is made; or (ii) the period
during which the Entity has been in existence. The term “Investment Entity”
does not include an Entity that is an Active NFE because that Entity meets any
of the criteria in subparagraphs D(8)(d) through (g). 
This paragraph
shall be interpreted in a manner consistent with similar language set forth in
the definition of “financial institution” in the Financial Action Task Force
Recommendations. 
7.
The term “Financial Asset” includes a security (for example, a share of stock
in a corporation; partnership or beneficial ownership interest in a widely held
or publicly traded partnership or trust; note, bond, debenture, or other
evidence of indebtedness), partnership interest, commodity, swap (for example,
interest rate swaps, currency swaps, basis swaps, interest rate caps, interest
rate floors, commodity swaps, equity swaps, equity index swaps, and similar
agreements), Insurance Contract or Annuity Contract, or any interest (including
a futures or forward contract or option) in a security, partnership interest,
commodity, swap, Insurance Contract, or Annuity Contract. The term “Financial
Asset” does not include a non-debt, direct interest in real property. 
8.
The term “Specified Insurance Company” means any Entity that is an insurance
company (or the holding company of an insurance company) which issues, or is
obligated to make payments with respect to, a Cash Value Insurance Contract or
an Annuity Contract. 
B. Non-Reporting Financial Institution 
1. The term
“Non-Reporting Financial Institution” means any Financial Institution which is:

a)
a Governmental Entity, International Organisation or Central Bank, other than
with respect to a payment that is derived from an obligation held in connection
with a commercial financial activity of a type engaged in by a Specified
Insurance Company, Custodial Institution, or Depository Institution; 
b)
a Broad Participation Retirement Fund; a Narrow Participation Retirement Fund;
a Pension Fund of a Governmental Entity, International Organisation or Central
Bank; or a Qualified Credit Card Issuer; 
c)
any other Entity that presents a low risk of being used to evade tax, has
substantially similar characteristics to any of the Entities described in
subparagraphs B(1)(a) and (b), and is defined in domestic law as a
Non-Reporting Financial Institution, and, for Member States, is provided for in
paragraph 7a of Article 8 of Council Directive 2011/16/EU on administrative
cooperation in the field of taxation and communicated to Switzerland and for
Switzerland, is communicated to the European Commission,  provided that the
status of such Entity as a Non-Reporting Financial Institution does not
frustrate the purposes of this Agreement; 
d)
an Exempt Collective Investment Vehicle; or 
e)
a trust to the extent that the trustee of the trust is a Reporting Financial
Institution and reports all information required to be reported pursuant to
Section I with respect to all Reportable Accounts of the trust. 
2. The term “Governmental Entity” means the government
of a Member State, Switzerland or other jurisdiction, any political subdivision
of a Member State, Switzerland or other jurisdiction (which, for the avoidance
of doubt, includes a state, province, county, or municipality), or any wholly
owned agency or instrumentality of a Member State, Switzerland or other
jurisdiction or of any one or more of the foregoing (each, a “Governmental
Entity”). This category is comprised of the integral parts, controlled
entities, and political subdivisions of a Member State, Switzerland or other
jurisdiction. 
a)
An “integral part” of a Member State, Switzerland or other jurisdiction means any
person, organisation, agency, bureau, fund, instrumentality, or other body,
however designated, that constitutes a governing authority of a Member State,
Switzerland or other jurisdiction. The net earnings of the governing authority
must be credited to its own account or to other accounts of the Member State,
Switzerland or other jurisdiction, with no portion inuring to the benefit of
any private person. An integral part does not include any individual who is a
sovereign, official, or administrator acting in a private or personal capacity.

b)
A controlled entity means an Entity which is separate in form from the Member
State, Switzerland or other jurisdiction or which otherwise constitutes a
separate juridical entity, provided that: 
i.
the Entity is wholly owned and controlled by one or more Governmental Entities
directly or through one or more controlled entities; 
ii.
the Entity’s net earnings are credited to its own account or to the accounts of
one or more Governmental Entities, with no portion of its income inuring to the
benefit of any private person; and 
iii.
the Entity’s assets vest in one or more Governmental Entities upon dissolution.

c) Income does not inure to the benefit of private
persons if such persons are the intended beneficiaries of a governmental
programme, and the programme activities are performed for the general public
with respect to the common welfare or relate to the administration of some
phase of government. Notwithstanding the foregoing, however, income is
considered to inure to the benefit of private persons if the income is derived
from the use of a Governmental Entity to conduct a commercial business, such as
a commercial banking business, that provides financial services to private
persons. 
3. The term “International Organisation” means any
international organisation or wholly owned agency or instrumentality thereof.
This category includes any intergovernmental organisation (including a
supranational organisation) (1) that is comprised primarily of governments; (2)
that has in effect a headquarters or substantially similar agreement with the
Member State, Switzerland or the other jurisdiction; and (3) the income of
which does not inure to the benefit of private persons. 
4. The term “Central Bank” means an institution that is
by law or government sanction the principal authority, other than the
government of the Member State, Switzerland or the other jurisdiction itself,
issuing instruments intended to circulate as currency. Such an institution may
include an instrumentality that is separate from the government of the Member
State, Switzerland or the other jurisdiction, whether or not owned in whole or
in part by the Member State, Switzerland or the other jurisdiction. 
5. The term “Broad Participation Retirement Fund” means a
fund established to provide retirement, disability, or death benefits, or any
combination thereof, to beneficiaries who are current or former employees (or
persons designated by such employees) of one or more employers in consideration
for services rendered, provided that the fund: 
a)
does not have a single beneficiary with a right to more than 5 % of the fund’s
assets; 
b)
is subject to government regulation and provides information reporting to the
tax authorities; and 
c)
satisfies at least one of the following requirements: 
i.
the fund is generally exempt from tax on investment income, or taxation of such
income is deferred or taxed at a reduced rate, due to its status as a
retirement or pension plan; 
ii.
the fund receives at least 50 % of its total contributions (other than
transfers of assets from other plans described in subparagraphs B(5) through
(7) or from retirement and pension accounts described in subparagraph C(17)(a))
from the sponsoring employers; 
iii.
distributions or withdrawals from the fund are allowed only upon the occurrence
of specified events related to retirement, disability, or death (except
rollover distributions to other retirement funds described in subparagraphs
B(5) through (7) or retirement and pension accounts described in subparagraph
C(17)(a)), or penalties apply to distributions or withdrawals made before such
specified events; or 
iv.
contributions (other than certain permitted make-up contributions) by employees
to the fund are limited by reference to earned income of the employee or may
not exceed annually USD 50 000 or an equivalent amount denominated in the
domestic currency of each Member State or Switzerland, applying the rules set
forth in paragraph C of Section VII for account aggregation and currency
translation. 
6. The term “Narrow Participation Retirement Fund” means
a fund established to provide retirement, disability, or death benefits to
beneficiaries who are current or former employees (or persons designated by
such employees) of one or more employers in consideration for services
rendered, provided that: 
a)
the fund has fewer than 50 participants; 
b)
the fund is sponsored by one or more employers that are not Investment Entities
or Passive NFEs; 
c)
the employee and employer contributions to the fund (other than transfers of
assets from retirement and pension accounts described in subparagraph C(17)(a))
are limited by reference to earned income and compensation of the employee,
respectively; 
d)
participants that are not residents of the jurisdiction (being a Member State
or Switzerland) in which the fund is established are not entitled to more than
20 % of the fund’s assets; and 
e)
the fund is subject to government regulation and provides information reporting
to the tax authorities. 
7. The term “Pension Fund of a Governmental Entity,
International Organisation or Central Bank” means a fund established by a
Governmental Entity, International Organisation or Central Bank to provide
retirement, disability, or death benefits to beneficiaries or participants who
are current or former employees (or persons designated by such employees), or
who are not current or former employees, if the benefits provided to such
beneficiaries or participants are in consideration of personal services
performed for the Governmental Entity, International Organisation or Central
Bank. 
8. The term “Qualified Credit Card Issuer” means a
Financial Institution satisfying the following requirements: 
a)
the Financial Institution is a Financial Institution solely because it is an
issuer of credit cards that accepts deposits only when a customer makes a
payment in excess of a balance due with respect to the card and the overpayment
is not immediately returned to the customer; and 
b)
beginning on or before the entry into force of the Amending
Protocol signed on [XXXX], the
Financial Institution implements policies and procedures either to prevent a
customer from making an overpayment in excess of USD 50 000 or an equivalent
amount denominated in the domestic currency of each Member State or Switzerland
, or to ensure that any customer overpayment in excess of that amount, is
refunded to the customer within 60 days, in each case applying the rules set
forth in paragraph C of Section VII for account aggregation and currency
translation. For this purpose, a customer overpayment does not refer to credit
balances to the extent of disputed charges but does include credit balances
resulting from merchandise returns. 
9.
The term “Exempt Collective Investment Vehicle” means an Investment Entity that
is regulated as a collective investment vehicle, provided that all of the
interests in the collective investment vehicle are held by or through
individuals or Entities that are not Reportable Persons, except a Passive NFE
with Controlling Persons who are Reportable Persons. 
An Investment
Entity that is regulated as a collective investment vehicle does not fail to
qualify under subparagraph B(9) as an Exempt Collective Investment Vehicle,
solely because the collective investment vehicle has issued physical shares in
bearer form, provided that: 
a)
the collective investment vehicle has not issued, and does not issue, any
physical shares in bearer form after 31 December preceding the entry into force
of the Amending Protocol signed on [XXXX]; 
b)
the collective investment vehicle retires all such shares upon surrender; 
c)
the collective investment vehicle performs the due diligence procedures set
forth in Sections II through VII and reports any information required to be
reported with respect to any such shares when such shares are presented for
redemption or other payment; and 
d)
the collective investment vehicle has in place policies and procedures to
ensure that such shares are redeemed or immobilised as soon as possible and in
any event within two years of the entry into force of
the Amending Protocol signed on [XXXX]. 
C. Financial Account 
1. The term “Financial Account” means an account maintained by a
Financial Institution, and includes a Depository Account, a Custodial Account
and: 
a)
in the case of an Investment Entity, any equity or debt interest in the
Financial Institution. Notwithstanding the foregoing, the term “Financial
Account” does not include any equity or debt interest in an Entity that is an
Investment Entity solely because it (i) renders investment advice to, and acts
on behalf of, or (ii) manages portfolios for, and acts on behalf of, a customer
for the purpose of investing, managing, or administering Financial Assets
deposited in the name of the customer with a Financial Institution other than
such Entity; 
b)
in the case of a Financial Institution not described in subparagraph C(1)(a),
any equity or debt interest in the Financial Institution, if the class of
interests was established with a purpose of avoiding reporting in accordance with
Section I; and 
c)
any Cash Value Insurance Contract and any Annuity Contract issued or maintained
by a Financial Institution, other than a non-investment-linked,
non-transferable immediate life annuity that is issued to an individual and
monetises a pension or disability benefit provided under an account that is an
Excluded Account. 
The term “Financial
Account” does not include any account that is an Excluded Account. 
2. The term “Depository Account” includes any
commercial, checking, savings, time, or thrift account, or an account that is
evidenced by a certificate of deposit, thrift certificate, investment
certificate, certificate of indebtedness, or other similar instrument
maintained by a Financial Institution in the ordinary course of a banking or
similar business. A Depository Account also includes an amount held by an
insurance company pursuant to a guaranteed investment contract or similar
agreement to pay or credit interest thereon. 
3. The term “Custodial Account” means an account (other
than an Insurance Contract or Annuity Contract) which holds one or more
Financial Assets for the benefit of another person. 
4. The term “Equity Interest” means, in the case of a
partnership that is a Financial Institution, either a capital or profits
interest in the partnership. In the case of a trust that is a Financial
Institution, an Equity Interest is considered to be held by any person treated
as a settlor or beneficiary of all or a portion of the trust, or any other
natural person exercising ultimate effective control over the trust. A
Reportable Person will be treated as being a beneficiary of a trust if such
Reportable Person has the right to receive directly or indirectly (for example,
through a nominee) a mandatory distribution or may receive, directly or
indirectly, a discretionary distribution from the trust. 
5. The term “Insurance Contract” means a contract (other
than an Annuity Contract) under which the issuer agrees to pay an amount upon
the occurrence of a specified contingency involving mortality, morbidity,
accident, liability, or property risk. 
6. The term “Annuity Contract” means a contract under
which the issuer agrees to make payments for a period of time determined in
whole or in part by reference to the life expectancy of one or more individuals.
The term also includes a contract that is considered to be an Annuity Contract
in accordance with the law, regulation, or practice of the jurisdiction (being
a Member State, Switzerland or other jurisdiction) in which the contract was
issued, and under which the issuer agrees to make payments for a term of years.

7. The term “Cash Value Insurance Contract” means an
Insurance Contract (other than an indemnity reinsurance contract between two
insurance companies) that has a Cash Value. 
8. The term “Cash Value” means the greater of (i) the
amount that the policyholder is entitled to receive upon surrender or
termination of the contract (determined without reduction for any surrender
charge or policy loan), and (ii) the amount the policyholder can borrow under
or with regard to the contract. Notwithstanding the foregoing, the term “Cash
Value” does not include an amount payable under an Insurance Contract: 
a)
solely by reason of the death of an individual insured under a life insurance
contract ; 
b)
as a personal injury or sickness benefit or other benefit providing
indemnification of an economic loss incurred upon the occurrence of the event
insured against; 
c)
as a refund of a previously paid premium (less cost of insurance charges
whether or not actually imposed) under an Insurance Contract (other than an
investment-linked life insurance or annuity contract) due to cancellation or
termination of the contract, decrease in risk exposure during the effective
period of the contract, or arising from the correction of a posting or similar
error with regard to the premium for the contract; 
d)
as a policyholder dividend (other than a termination dividend) provided that
the dividend relates to an Insurance Contract under which the only benefits
payable are described in subparagraph C(8)(b); or 
e)
as a return of an advance premium or premium deposit for an Insurance Contract
for which the premium is payable at least annually if the amount of the advance
premium or premium deposit does not exceed the next annual premium that will be
payable under the contract. 
9. The term “Preexisting Account” means:
a) a Financial Account maintained by a Reporting
Financial Institution as of 31 December preceding the entry into force of the Amending Protocol signed on [XXXX]. 
b) A Member State or Switzerland shall have the option
of extending the term “Preexisting Account” to mean also any Financial Account
of an Account Holder, regardless of the date such Financial Account was opened,
if:
i.    the
Account Holder also holds with the Reporting Financial Institution, or with a
Related Entity within the same jurisdiction (being a Member State or
Switzerland) as the Reporting Financial Institution, a Financial Account that
is a Preexisting Account under subparagraph C(9)(a);
ii.   the
Reporting Financial Institution, and, as applicable, the Related Entity within
the same jurisdiction (being a Member State or Switzerland) as the Reporting
Financial Institution, treats both of the aforementioned Financial Accounts,
and any other Financial Accounts of the Account Holder that are treated as
Preexisting Accounts under point (b), as a single Financial Account for
purposes of satisfying the standards of knowledge requirements set forth in
paragraph A of Section VII, and for purposes of determining the balance or
value of any of the Financial Accounts when applying any of the account
thresholds;
iii.  with
respect to a Financial Account that is subject to AML/KYC Procedures, the
Reporting Financial Institution is permitted to satisfy such AML/KYC Procedures
for the Financial Account by relying upon the AML/KYC Procedures performed for
the Preexisting Account described in subparagraph C(9)(a); and
iv.  the
opening of the Financial Account does not require the provision of new,
additional or amended customer information by the Account Holder other than for
the purposes of this Agreement. 
Before the entry into force of the Amending
Protocol signed on [XXXX], Member States shall
communicate to Switzerland and Switzerland shall communicate to the European
Commission whether they have exercised the option foreseen in this point. The
European Commission may coordinate the transmission of the communication from
Member States to Switzerland and the European Commission shall transmit the
communication from Switzerland to all Member States. All further changes to the
exercise of that option by a Member State or Switzerland shall be communicated
in the same manner.
10.
The term “New Account” means a Financial Account maintained by a Reporting
Financial Institution opened on or after the entry into force of the Amending Protocol signed on [XXXX], unless it is treated as a Preexisting Account under
the extended definition of Preexisting Account in subparagraph C(9). 
11.
The term “Preexisting Individual Account” means a Preexisting Account held by
one or more individuals. 
12.
The term “New Individual Account” means a New Account held by one or more
individuals. 
13.
The term “Preexisting Entity Account” means a Preexisting Account held by one
or more Entities. 
14.
The term “Lower Value Account” means a Preexisting Individual Account with an
aggregate balance or value as of 31 December preceding the entry into force of the Amending Protocol signed on [XXXX] that does not exceed USD 1 000 000 or an equivalent
amount denominated in the domestic currency of each Member State or Switzerland
. 
15.
The term “High Value Account” means a Preexisting Individual Account with an
aggregate balance or value that exceeds USD 1 000 000 or an equivalent amount
denominated in the domestic currency of each Member State or Switzerland as of
31 December preceding the entry into force of the
Amending Protocol signed on [XXXX] or
31 December of any subsequent year. 
16.
The term “New Entity Account” means a New Account held by one or more Entities.

17. The term
“Excluded Account” means any of the following accounts: 
a) a retirement or pension account that satisfies the
following requirements: 
i.
the account is subject to regulation as a personal retirement account or is
part of a registered or regulated retirement or pension plan for the provision
of retirement or pension benefits (including disability or death benefits); 
ii.
the account is tax-favoured (i.e., contributions to the account that would
otherwise be subject to tax are deductible or excluded from the gross income of
the Account Holder or taxed at a reduced rate, or taxation of investment income
from the account is deferred or taxed at a reduced rate); 
iii.
information reporting is required to the tax authorities with respect to the
account; 
iv.
withdrawals are conditioned on reaching a specified retirement age, disability,
or death, or penalties apply to withdrawals made before such specified events;
and 
v.
either (i) annual contributions are limited to USD 50 000 or an equivalent
amount denominated in the domestic currency of each Member State or
Switzerland  or less, or (ii) there is a maximum lifetime contribution limit to
the account of USD 1 000 000 or an equivalent amount denominated in the
domestic currency of each Member State or Switzerland  or less, in each case
applying the rules set forth in paragraph C of Section VII for account
aggregation and currency translation. 
A Financial Account that otherwise satisfies the requirement of
subparagraph C(17)(a)(v) will not fail to satisfy such requirement solely
because such Financial Account may receive assets or funds transferred from one
or more Financial Accounts that meet the requirements of subparagraph C(17)(a)
or (b) or from one or more retirement or pension funds that meet the
requirements of any of subparagraphs B(5) through (7). 
b) an account that
satisfies the following requirements: 
i.
the account is subject to regulation as an investment vehicle for purposes
other than for retirement and is regularly traded on an established securities
market, or the account is subject to regulation as a savings vehicle for
purposes other than for retirement; 
ii.
the account is tax-favoured (i.e., contributions to the account that would
otherwise be subject to tax are deductible or excluded from the gross income of
the Account Holder or taxed at a reduced rate, or taxation of investment income
from the account is deferred or taxed at a reduced rate); 
iii.
withdrawals are conditioned on meeting specific criteria related to the purpose
of the investment or savings account (for example, the provision of educational
or medical benefits), or penalties apply to withdrawals made before such
criteria are met; and 
iv.
annual contributions are limited to USD 50 000 or an equivalent amount
denominated in the domestic currency of each Member State or Switzerland or
less, applying the rules set forth in paragraph C of Section VII for account
aggregation and currency translation. 
A Financial Account
that otherwise satisfies the requirement of subparagraph C(17)(b)(iv) will not
fail to satisfy such requirement solely because such Financial Account may
receive assets or funds transferred from one or more Financial Accounts that
meet the requirements of subparagraph C(17)(a) or (b) or from one or more
retirement or pension funds that meet the requirements of any of subparagraphs
B(5) through (7). 
c) a life insurance contract with a coverage period that
will end before the insured individual attains age 90, provided that the
contract satisfies the following requirements: 
i. periodic premiums, which do not decrease over time,
are payable at least annually during the period the contract is in existence or
until the insured attains age 90, whichever is shorter; 
ii. the contract has no contract value that any person
can access (by withdrawal, loan, or otherwise) without terminating the
contract; 
iii. the amount (other than a death benefit) payable
upon cancellation or termination of the contract cannot exceed the aggregate
premiums paid for the contract, less the sum of mortality, morbidity, and
expense charges (whether or not actually imposed) for the period or periods of
the contract’s existence and any amounts paid prior to the cancellation or
termination of the contract; and 
iv. the contract is not held by a transferee for value. 
d) an account that is held solely by an estate if the
documentation for such account includes a copy of the deceased’s will or death
certificate. 
e) an account established in connection with any of the
following: 
i. a court order or judgment. 
ii. a sale, exchange, or lease of real or personal
property, provided that the account satisfies the following requirements: 
- the account is funded solely with a down
payment, earnest money, deposit in an amount appropriate to secure an
obligation directly related to the transaction, or a similar payment, or is
funded with a Financial Asset that is deposited in the account in connection
with the sale, exchange, or lease of the property; 
-
the account is established and used solely to secure the obligation of the
purchaser to pay the purchase price for the property, the seller to pay any
contingent liability, or the lessor or lessee to pay for any damages relating
to the leased property as agreed under the lease; 
-
the assets of the account, including the income earned thereon, will be paid or
otherwise distributed for the benefit of the purchaser, seller, lessor, or
lessee (including to satisfy such person’s obligation) when the property is
sold, exchanged, or surrendered, or the lease terminates; 
-
the account is not a margin or similar account established in connection with a
sale or exchange of a Financial Asset; and 
-
the account is not associated with an account described in subparagraph
C(17)(f). 
iii. an obligation of a Financial Institution servicing
a loan secured by real property to set aside a portion of a payment solely to
facilitate the payment of taxes or insurance related to the real property at a
later time. 
iv. an obligation of a Financial Institution solely to
facilitate the payment of taxes at a later time. 
f) a Depository Account that satisfies the following requirements: 
i. the account exists solely because a customer makes a
payment in excess of a balance due with respect to a credit card or other revolving
credit facility and the overpayment is not immediately returned to the
customer; and 
ii. beginning on or before the entry into force of the Amending Protocol signed on [XXXX], the
Financial Institution implements policies and procedures either to prevent a
customer from making an overpayment in excess of USD 50 000 or an equivalent
amount denominated in the domestic currency of each Member State or Switzerland
, or to ensure that any customer overpayment in excess of that amount is
refunded to the customer within 60 days, in each case applying the rules set
forth in paragraph C of Section VII for currency translation. For this purpose,
a customer overpayment does not refer to credit balances to the extent of
disputed charges but does include credit balances resulting from merchandise
returns. 
g) any other account that presents a low risk of being
used to evade tax, has substantially similar characteristics to any of the
accounts described in subparagraphs C(17)(a) through (f), and is defined in
domestic law as an Excluded Account and, for Member States, is provided for in
paragraph 7a of Article 8 of Council Directive 2011/16/EU on administrative
cooperation in the field of taxation and communicated to Switzerland and for
Switzerland, is communicated to the European Commission, provided that the
status of such account as an Excluded Account does not frustrate the purposes
of this Agreement. 
D. Reportable Account 
1. The term “Reportable Account” means an account held by one or
more Reportable Persons or by a Passive NFE with one or more Controlling
Persons that is a Reportable Person, provided it has been identified as such
pursuant to the due diligence procedures described in Sections II through VII. 
2. The term “Reportable Person” means a Reportable Jurisdiction
Person other than: (i) a corporation the stock of which is regularly traded on
one or more established securities markets; (ii) any corporation that is a
Related Entity of a corporation described in clause (i); (iii) a Governmental
Entity; (iv) an International Organisation; (v) a Central Bank; or (vi) a
Financial Institution. 
3. The term “Reportable Jurisdiction Person” means an individual or
Entity that is resident in a Reportable Jurisdiction under the tax laws of such
jurisdiction, or an estate of a decedent that was a resident of a Reportable
Jurisdiction. For this purpose, an Entity such as a partnership, limited
liability partnership or similar legal arrangement, which has no residence for
tax purposes shall be treated as resident in the jurisdiction in which its
place of effective management is situated. 
4. The term “Reportable Jurisdiction” means Switzerland with regard
to a Member State or a Member State with regard to Switzerland in the context
of the obligation to provide the information specified in Section I, . 
5. The term “Participating Jurisdiction” with regard to a Member
State or Switzerland means:
a) any Member State with
regard to reporting to Switzerland, or
b) Switzerland with
regard to reporting to a Member State, or
c) any other
jurisdiction (i) with which the relevant Member State or Switzerland, as the
context requires, has an agreement in place pursuant to which that other
jurisdiction will provide the information specified in Section I, and (ii)
which is identified in a list published by that Member State or Switzerland and
notified to Switzerland, respectively to the European Commission
d) with regard to Member
States, any other jurisdiction (i) with which the European Union has an
agreement in place pursuant to which that other jurisdiction will provide the
information specified in Section I, and (ii) which is identified in a list
published by the European Commission. 
6. The term “Controlling Persons” means the natural persons who
exercise control over an Entity. In the case of a trust, that term means the
settlor(s), the trustee(s), the protector(s) (if any), the beneficiary(ies) or
class(es) of beneficiaries, and any other natural person(s) exercising ultimate
effective control over the trust, and in the case of a legal arrangement other
than a trust, such term means persons in equivalent or similar positions. The
term “Controlling Persons” must be interpreted in a manner consistent with the
Financial Action Task Force Recommendations. 
7. The term “NFE” means any Entity that is not a
Financial Institution. 
8. The term “Passive NFE” means any: (i) NFE that is not an Active
NFE; or (ii) an Investment Entity described in subparagraph A(6)(b) that is not
a Participating Jurisdiction Financial Institution. 
9. The term
“Active NFE” means any NFE that meets any of the following criteria: 
a) less than 50 % of the NFE’s gross
income for the preceding calendar year or other appropriate reporting period is
passive income and less than 50 % of the assets held by the NFE during the
preceding calendar year or other appropriate reporting period are assets that
produce or are held for the production of passive income; 
b) the stock of the NFE is regularly
traded on an established securities market or the NFE is a Related Entity of an
Entity the stock of which is regularly traded on an established securities
market; 
c) the NFE is a Governmental Entity,
an International Organisation, a Central Bank , or an Entity wholly owned by
one or more of the foregoing; 
d) substantially all of the
activities of the NFE consist of holding (in whole or in part) the outstanding
stock of, or providing financing and services to, one or more subsidiaries that
engage in trades or businesses other than the business of a Financial
Institution, except that an Entity does not qualify for this status if the
Entity functions (or holds itself out) as an investment fund, such as a private
equity fund, venture capital fund, leveraged buyout fund, or any investment
vehicle whose purpose is to acquire or fund companies and then hold interests
in those companies as capital assets for investment purposes; 
e) the NFE is not yet operating a
business and has no prior operating history, but is investing capital into
assets with the intent to operate a business other than that of a Financial
Institution, provided that the NFE does not qualify for this exception after
the date that is 24 months after the date of the initial organisation of the
NFE; 
f) the NFE was not a Financial
Institution in the past five years, and is in the process of liquidating its
assets or is reorganising with the intent to continue or recommence operations
in a business other than that of a Financial Institution; 
g) the NFE primarily engages in
financing and hedging transactions with, or for, Related Entities that are not
Financial Institutions, and does not provide financing or hedging services to
any Entity that is not a Related Entity, provided that the group of any such
Related Entities is primarily engaged in a business other than that of a
Financial Institution; or 
h) the NFE meets all of the following
requirements: 
i. it is established and
operated in its jurisdiction of residence (being a Member State, Switzerland or
other jurisdiction) exclusively for religious, charitable, scientific,
artistic, cultural, athletic, or educational purposes; or it is established and
operated in its jurisdiction of residence (being a Member State, Switzerland or
other jurisdiction) and it is a professional organisation, business league,
chamber of commerce, labour organisation, agricultural or horticultural
organisation, civic league or an organisation operated exclusively for the
promotion of social welfare; 
ii. it is exempt from
income tax in its jurisdiction of residence (being a Member State, Switzerland
or other jurisdiction); 
iii. it has no
shareholders or members who have a proprietary or beneficial interest in its
income or assets; 
iv. the applicable laws
of the NFE’s jurisdiction of residence (being a Member State, Switzerland or
other jurisdiction) or the NFE’s formation documents do not permit any income
or assets of the NFE to be distributed to, or applied for the benefit of, a
private person or non-charitable Entity other than pursuant to the conduct of
the NFE’s charitable activities, or as payment of reasonable compensation for
services rendered, or as payment representing the fair market value of property
which the NFE has purchased; and 
v. the applicable laws
of the NFE’s jurisdiction of residence (being a Member State, Switzerland or
other jurisdiction) or the NFE’s formation documents require that, upon the
NFE’s liquidation or dissolution, all of its assets be distributed to a
Governmental Entity or other non-profit organisation, or escheat to the
government of the NFE’s jurisdiction of residence (being a Member State,
Switzerland or other jurisdiction) or any political subdivision thereof. 
E. Miscellaneous 
1.
The term “Account Holder” means the person listed or identified as the holder
of a Financial Account by the Financial Institution that maintains the account.
A person, other than a Financial Institution, holding a Financial Account for
the benefit or account of another person as agent, custodian, nominee,
signatory, investment advisor, or intermediary, is not treated as holding the
account for purposes of this Annex, and such other person is treated as holding
the account. In the case of a Cash Value Insurance Contract or an Annuity
Contract, the Account Holder is any person entitled to access the Cash Value or
change the beneficiary of the contract. If no person can access the Cash Value
or change the beneficiary, the Account Holder is any person named as the owner
in the contract and any person with a vested entitlement to payment under the
terms of the contract. Upon the maturity of a Cash Value Insurance Contract or
an Annuity Contract, each person entitled to receive a payment under the
contract is treated as an Account Holder. 
2.
The term “AML/KYC Procedures” means the customer due diligence procedures of a
Reporting Financial Institution pursuant to the anti-money laundering or
similar requirements to which such Reporting Financial Institution is subject. 
3.
The term “Entity” means a legal person or a legal arrangement, such as a
corporation, partnership, trust, or foundation. 
4.
An Entity is a «Related Entity» of another Entity if either Entity controls the
other Entity, or the two Entities are under common control. For this purpose
control includes direct or indirect ownership of more than 50 per cent of the
vote and value in an Entity. A Member State or Switzerland shall have the
option of defining an Entity as a “Related Entity” of another Entity if (a)
either Entity controls the other Entity; (b) the two Entities are under common
control; or (c) the two Entities are Investment Entities described in
subparagraph A(6)(b), are under common management, and such management fulfils
the due diligence obligations of such Investment Entities. For this purpose
control includes direct or indirect ownership of more than 50 % of the vote and
value in an Entity. 
Before the entry
into force of the Amending Protocol signed on [XXXX], Member States shall communicate to
Switzerland and Switzerland shall communicate to the European Commission
whether they have exercised the option foreseen in this subparagraph. The
European Commission may coordinate the transmission of the communication from
Member States to Switzerland and the European Commission shall transmit the
communication from Switzerland to all Member States. All further changes to the
exercise of that option by a Member State or Switzerland shall be communicated
in the same manner.
5.
The term “TIN” means Taxpayer Identification Number (or functional equivalent
in the absence of a Taxpayer Identification Number). 
6.
The term “Documentary Evidence” includes any of the following: 
a)
a certificate of residence issued by an authorised government body (for
example, a government or agency thereof, or a municipality) of the jurisdiction
(being a Member State, Switzerland or other jurisdiction) in which the payee
claims to be a resident. 
b)
with respect to an individual, any valid identification issued by an authorised
government body (for example, a government or agency thereof, or a
municipality), that includes the individual’s name and is typically used for
identification purposes. 
c)
with respect to an Entity, any official documentation issued by an authorised
government body (for example, a government or agency thereof, or a
municipality) that includes the name of the Entity and either the address of
its principal office in the jurisdiction (being a Member State, Switzerland or
other jurisdiction) in which it claims to be a resident or the jurisdiction
(being a Member State, Switzerland or other jurisdiction) in which the Entity
was incorporated or organised. 
d)
any audited financial statement, third-party credit report, bankruptcy filing,
or securities regulator’s report. 
With respect to a Preexisting Entity Account,
each Member State or Switzerland shall have the option to allow Reporting
Financial Institutions to use as Documentary Evidence any classification in the
Reporting Financial Institution's records with respect to the Account Holder
that was determined based on a standardised industry coding system, that was
recorded by the Reporting Financial Institution consistent with its normal
business practices for purposes of AML/KYC Procedures or another regulatory
purposes (other than for tax purposes) and that was implemented by the
Reporting Financial Institution prior to the date used to classify the
Financial Account as a Preexisting Account, provided that the Reporting
Financial Institution does not know or does not have reason to know that such
classification is incorrect or unreliable. The term ‘standardised industry
coding system’ means a coding system used to classify establishments by
business type for purposes other than tax purposes.
Before the entry into force of the Amending Protocol signed on [XXXX], Member States shall communicate to Switzerland and
Switzerland shall communicate to the European Commission whether they have
exercised the option foreseen in this subparagraph. The European Commission may
coordinate the transmission of the communication from Member States to
Switzerland and the European Commission shall transmit the communication from
Switzerland to all Member States. All further changes to the exercise of that
option by a Member State or Switzerland shall be communicated in the same
manner.
Section
IX: Effective Implementation 
Each Member State and
Switzerland must have rules and administrative procedures in place to ensure
effective implementation of, and compliance with, the reporting and due
diligence procedures set out above including: 
1. rules to prevent any Financial Institutions,
persons or intermediaries from adopting practices intended to circumvent the
reporting and due diligence procedures; 
2. rules requiring Reporting Financial
Institutions to keep records of the steps undertaken and any evidence relied
upon for the performance of the above procedures and adequate measures to
obtain those records; 
3. administrative procedures to verify Reporting
Financial Institutions’ compliance with the reporting and due diligence
procedures; administrative procedures to follow up with a Reporting Financial Institution
when undocumented accounts are reported; 
4. administrative procedures to ensure that the
Entities and accounts defined in domestic law as Non-Reporting Financial
Institutions and Excluded Accounts continue to have a low risk of being used to
evade tax; and 
5. effective enforcement provisions to address
non-compliance. 
ANNEX II
Complementary
Reporting and Due Diligence rules for financial account information
1. Change in circumstances
A ‘change in
circumstances’ includes any change that results in the addition of information
relevant to a person's status or otherwise conflicts with such person's status.
In addition, a change in circumstances includes any change or addition of
information to the Account Holder's account (including the addition,
substitution, or other change of an Account Holder) or any change or addition
of information to any account associated with such account (applying the
account aggregation rules described in subparagraphs C(1) through (3) of
Section VII of Annex I) if such change or addition of information affects the
status of the Account Holder. 
If a Reporting Financial
Institution has relied on the residence address test described in subparagraph
B(1) of Section III of Annex I and there is a change in circumstances  that
causes the Reporting Financial Institution to know or have reason to know that
the original Documentary Evidence (or other equivalent documentation ) is
incorrect or unreliable, the Reporting Financial Institution must, by the later
of the last day of the relevant calendar year or other appropriate reporting
period, or 90 calendar days following the notice or discovery of such change in
circumstances, obtain a self-certification and new Documentary Evidence to
establish the residence(s) for tax purposes of the Account Holder. If the
Reporting Financial Institution cannot obtain the self-certification and new
Documentary Evidence by such date, the Reporting Financial Institution must
apply the electronic record search procedure described in subparagraphs B(2)
through (6) of Section III of Annex I.
2. Self-certification for New Entity
Accounts
With respect to New Entity
Accounts, for the purposes of determining whether a Controlling Person of a
Passive NFE is a Reportable Person, a Reporting Financial Institution may only
rely on a self-certification from either the Account Holder or the Controlling
Person.
3. Residence of a Financial Institution
A Financial Institution is
‘resident’ in a Member State, Switzerland or another Participating Jurisdiction
if it is subject to the jurisdiction of such Member State, Switzerland or
another Participating Jurisdiction (i.e., the Participating Jurisdiction is
able to enforce reporting by the Financial Institution). In general, where a
Financial Institution is resident for tax purposes in a Member State,
Switzerland or another Participating Jurisdiction, it is subject to the
jurisdiction of such Member State, Switzerland or another Participating
Jurisdiction and it is, thus, a Member State Financial Institution, Swiss Financial
Institution or another Participating Jurisdiction Financial Institution. In the
case of a trust that is a Financial Institution (irrespective of whether it is
resident for tax purposes in a Member State, Switzerland or another
Participating Jurisdiction), the trust is considered to be subject to the
jurisdiction of a Member State, Switzerland or another Participating
Jurisdiction if one or more of its trustees are resident in such Member State,
Switzerland or another Participating Jurisdiction except if the trust reports
all the information required to be reported pursuant to this Agreement or
another agreement implementing the Global Standard with respect to Reportable
Accounts maintained by the trust to another Participating Jurisdiction (being a
Member State, Switzerland or another Participating Jurisdiction), because it is
resident for tax purposes in such other Participating Jurisdiction. However,
where a Financial Institution (other than a trust) does not have a residence
for tax purposes (e.g., because it is treated as fiscally transparent, or it is
located in a jurisdiction that does not have an income tax), it is considered
to be subject to the jurisdiction of a Member State, Switzerland or another
Participating Jurisdiction and it is, thus, a Member State, Switzerland or
another Participating Jurisdiction Financial Institution if:
a)
it is incorporated under the laws of the Member State, Switzerland or another
Participating Jurisdiction ;
b)
it has its place of management (including effective management) in the Member
State, Switzerland or another Participating Jurisdiction ; or
c)
it is subject to financial supervision in the Member State, Switzerland or
another Participating Jurisdiction.
Where a Financial Institution (other than a
trust) is resident in two or more Participating Jurisdictions (being a Member
State, Switzerland or another Participating Jurisdiction), such Financial
Institution will be subject to the reporting and due diligence obligations of
the Participating Jurisdiction in which it maintains the Financial Account(s).
4. Account maintained
In general, an account
would be considered to be maintained by a Financial Institution as follows:
a) in the case of a Custodial Account, by the Financial
Institution that holds custody over the assets in the account (including a
Financial Institution that holds assets in street name for an Account Holder in
such institution).
b) in case of a Depository Account, by the Financial
Institution that is obligated to make payments with respect to the account
(excluding an agent of a Financial Institution regardless of whether such agent
is a Financial Institution).
c) in the case of any equity or debt interest in a Financial
Institution that constitutes a Financial Account, by such Financial Institution.
d) in the case of a Cash Value Insurance Contract or an
Annuity Contract, by the Financial Institution that is obligated to make
payments with respect to the contract.
5. Trusts that are Passive
NFEs
An Entity such as a
partnership, limited liability partnership or similar legal arrangement that
has no residence for tax purposes, according to subparagraph D(3) of Section
VIII of Annex I, shall be treated as resident in the jurisdiction in which its
place of effective management is situated. For these purposes, a legal person
or a legal arrangement is considered ‘similar’ to a partnership and a limited
liability partnership where it is not treated as a taxable unit in a Reportable
Jurisdiction under the tax laws of such Reportable Jurisdiction. However, in
order to avoid duplicate reporting (given the wide scope of the term
“Controlling Persons” in the case of trusts), a trust that is a Passive NFE may
not be considered a similar legal arrangement.
6. Address of Entity’s
principal office
One of the requirements
described in subparagraph E(6)(c) of Section VIII of Annex I is that, with
respect to an Entity, the official documentation includes either the address of
the Entity’s principal office in the Member State, Switzerland or other
jurisdiction in which it claims to be a resident or the Member State,
Switzerland or other jurisdiction in which the Entity was incorporated or
organised. The address of the Entity’s principal office is generally the place
in which its place of effective management is situated. The address of a
Financial Institution with which the Entity maintains an account, a post office
box, or an address used solely for mailing purposes is not the address of the
Entity’s principal office unless such address is the only address used by the
Entity and appears as the Entity's registered address in the Entity's
organisational documents. Further, an address that is provided subject to
instructions to hold all mail to that address is not the address of the
Entity’s principal office.
ANNEX III
LIST OF COMPETENT AUTHORITIES OF THE
CONTRACTING PARTIES
The Competent Authorities for the purposes
of this Agreement are:
(a) in Switzerland, Le chef du Département fédéral des
finances ou son représentant autorisé / Der Vorsteher oder die Vorsteherin des
Eidgenössischen Finanzdepartements oder die zu seiner oder ihrer Vertretung
bevollmächtigte Person / Il capo del Dipartimento federale delle finanze o la
persona autorizzata a rappresentarlo, 

(b) in the Kingdom
of Belgium: De Minister van Financiën/Le Ministre des Finances or an authorised
representative, 
(c)  in the
Republic of Bulgaria:
Изпълнителният
директор на
Националната
агенция за
приходите or an
authorised representative,
(d) in the Czech Republic: Ministr financí
or an authorised representative,
(e) in the Kingdom of Denmark:
Skatteministeren, or an authorised representative,
(f) in the Federal Republic of Germany: Der
Bundesminister der Finanzen or an authorised representative,
(g) in the Republic of Estonia:
Rahandusminister or an authorised representative,
(h) in the Hellenic Republic: Ο
Υπουργός Οικονομίας
και
Οικονομικών or an
authorised representative,
(i) in the Kingdom of Spain: El Ministro de
Economía y Hacienda or an authorised representative,
(j) in the French Republic: Le Ministre
chargé du budget or an authorised representative,
(k) in the Republic
of Croatia: Ministar financija or
an authorised representative
(l) in Ireland: The Revenue Commissioners,
or their authorised representative,
(m) in the Italian Republic: Il Capo del
Dipartimento per le Politiche Fiscali or an authorised representative,
(n) in the Republic of Cyprus:
Υπουργός
Οικονομικών, or an
authorised representative,
(o) in the Republic of Latvia: Finanšu
ministrs or an authorised representative,
(p) in the Republic of Lithuania:
Finansų ministras or an authorised representative,
(q) in the Grand Duchy of Luxembourg: Le
Ministre des Finances or an authorised representative,
(r) in the Republic of Hungary: A
pénzügyminiszter or an authorised representative,
(s) in the Republic of Malta: Il-Ministru
responsabbli għall-Finanzi or an authorised representative,
(t) in the Kingdom of the Netherlands: De
Minister van Financiën or an authorised representative,
(u) in the Republic of Austria: Der
Bundesminister für Finanzen or an authorised representative,
(v) in the Republic of Poland: Minister
Finansów or an authorised representative,
(w) in the Portuguese Republic: O Ministro
das Finanças or an authorised representative,
(x) in Romania: Președintele
Agenției Naționale de Administrare Fiscală or an authorised
representative,
(y) in the Republic of Slovenia: Minister
za financií or an authorised representative,
(z) in the Slovak Republic: Minister
financií or an authorised representative,
(aa) in the Republic of Finland:
Valtiovarainministeriö/Finansministeriet or an authorised representative,
(ab) in the Kingdom of Sweden: Chefen för
Finansdepartementet or an authorised representative,
(ac) 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 Switzerland by the Secretary General of the Council of the European
Union, and which shall apply to this Agreement.
[1] With regard to Switzerland, the term
"limited company" covers:
- société
anonyme/Aktiengesellschaft/società anonima;
- société à responsabilité
limitée/Gesellschaft mit beschränkter Haftung/società a responsabilità
limitata;
- société en commandite par
actions/Kommanditaktiengesellschaft/società in accomandita per azioni.”
Article 3
Entry into force and application
1. This Amending Protocol 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
Amending Protocol shall enter into force on the first day of January following
the last notification. 
2.
In respect of information exchange upon request, the exchange of information
provided for in this Amending Protocol shall be applicable to requests made on
or after the date of its entry into force for information that relates to
fiscal years beginning on or after the first day of January of the year of the
entry into force of this Amending Protocol. Article 10 of the Agreement in the
form prior to its amendment with this Amending Protocol shall continue to apply
unless Article 5 of the Agreement as amended by this Amending Protocol applies.

3. The claims of individuals in accordance with Article 9 of the
Agreement in the form prior to its amendment with this Amending Protocol shall
remain unaffected after the entry into force of this Amending Protocol.
4.
Switzerland shall establish a final account by the end of the period of
applicability of the Agreement in the form prior to its amendment with this
Amending Protocol, make a final payment to the Member States and report the
information, that it received from paying agents established in Switzerland, in
accordance with Article 2 of the Agreement in the form prior to its amendment
with this Amending Protocol with respect to the last year of applicability of
the Agreement in the form prior to its amendment with this Amending Protocol,
or to any preceding year, if applicable. 
Article 4
The Agreement is supplemented by a Protocol
with the following content:
“Protocol to the Agreement between the
European Union and the Swiss Confederation on the automatic exchange of
financial account information to improve international tax compliance.
On the occasion of the signature of this
Amending Protocol between the European Union and the Swiss Confederation the
duly authorized undersigned have agreed the following provisions which shall
form an integral part of the Agreement as amended by this Amending Protocol:
1.     It is understood that an exchange of information under
Article 5 of this Agreement will only be requested once the requesting State
(being a Member State or Switzerland) has exhausted all regular sources of information
available under the internal taxation procedure.
2.     It is understood that the Competent Authority of the
requesting State (being a Member State or Switzerland) shall provide the
following information to the Competent Authority of the requested State (being,
respectively, Switzerland or a Member State) when making a request for
information under Article 5 of this Agreement:
(i)     the identity of the person under examination or
investigation;
(ii)    the period of time for which the information is requested;
(iii)   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;
(iv)   the tax purpose for which the information is sought;
(v)    to the extent known, the name and address of any person
believed to be in possession of the requested information.
3.     It is understood that the reference to “foreseeable
relevance” is intended to provide for exchange of information under Article 5
of this Agreement to the widest possible extent and, at the same time, to
clarify that Member States and Switzerland are not at liberty to engage in
“fishing expeditions” or to request information that is unlikely to be relevant
to the tax affairs of a given taxpayer. While paragraph 2 contains important
procedural requirements that are intended to ensure that fishing expeditions do
not occur, clauses (i) through (v) of paragraph 2 nevertheless are not to be
interpreted in order to frustrate effective exchange of information. The standard of “foreseeable
relevance” can be met both in cases dealing with one taxpayer (whether
identified by name or otherwise) or several taxpayers (whether identified by
name or otherwise). 
4.     It is understood that this Agreement does not include
exchange of information on a spontaneous basis.
5.     It is understood that in case of an exchange of information
under Article 5 of this Agreement, the administrative procedural rules
regarding taxpayers’ rights provided for in the requested State (being a Member
State or Switzerland) remain applicable. It is further understood that these
provisions aim at guaranteeing the taxpayer a fair procedure and not at
preventing or unduly delaying the exchange of information process.”
Article 5
Languages
This Amending Protocol is drawn up in
duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian,
Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian,
Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish
languages, each of these language versions being equally authentic.
 
To be
updated in all languages
IN WITNESS WHEREOF, the undersigned
Plenipotentiaries have hereunto set their hands.
To be
updated in all languages
Done at [XXXX] on [XX] day of [XXXX] in the
year [XXXX].
To be
updated in all languages
For the European Union
Für die Schweizerische Eidgenossenschaft
Pour la Confédération suisse
Per la Confederazione svizzera
Declarations of the Contracting Parties:
Joint declaration of
the Contracting Parties on the entry into force of the Amending Protocol
The Contracting Parties declare that they expect that
the constitutional requirements of Switzerland and the requirements of European
Union law concerning entering into international agreements will be fulfilled
in time to enable the Amending Protocol to enter into force on the first day of
January 2017. They will take all the measures in their power to achieve this
goal.
Joint declaration of
the Contracting Parties on the Agreement and the Annexes
The Contracting Parties agree, regarding the
implementation of the Agreement and the Annexes, that the Commentaries to the
OECD Model Competent Authority Agreement and Common Reporting Standard should
be a source of illustration or interpretation in order to ensure consistency in
application.
Joint declaration of
the Contracting Parties on Article 5 of the Agreement
The Contracting Parties agree, regarding the
implementation of Article 5 on Exchange of Information upon Request, that the
commentary to Article 26 of the OECD Model Tax Convention on Income and on
Capital should be a source of interpretation.
Joint declaration of
the Contracting Parties on Section III (A) of Annex I of the Agreement
The Contracting
Parties agree that they will examine the practical relevance of Section III (A)
of Annex I which provides that preexisting Cash Value Insurance Contracts and
Annuity Contracts are not required to be reviewed, identified or reported,
provided the Reporting Financial Institution is effectively prevented by law
from selling such Contracts to residents of a Reportable Jurisdiction. 
The Contracting Parties have a common
interpretation that under Section III (A) of Annex I the Reporting Financial
Institution is effectively prevented by law from selling Cash Value Insurance
Contracts and Annuity Contracts to residents of a Reportable Jurisdiction only
where the EU and domestic law of Member States or Swiss law applicable to a
Reporting Financial Institution resident in a Participating Jurisdiction (being
a Member State or Switzerland) does not only effectively prevent that Reporting
Financial Institution by law from selling Cash Value Insurance Contracts or
Annuity Contracts in a Reportable Jurisdiction (being, respectively,
Switzerland or a Member State), but those laws also effectively prevent the
Reporting Financial Institution by law from selling Cash Value Insurance
Contracts or Annuity Contracts to residents of that Reportable Jurisdiction in
any other circumstances.
In this context, each Member State will
inform the European Commission, which will in turn notify Switzerland, in case
Reporting Financial Institutions in Switzerland are prevented by law from
selling such Contracts to its residents based on applicable EU and domestic law
of that Member State. Accordingly, Switzerland will notify the European
Commission, which will in turn inform Member States, in case Reporting
Financial Institutions of one or more Member States are prevented by law from
selling such Contracts to Swiss residents based on Swiss law. These
notifications will be made prior to the entry into force of the Amending
Protocol regarding the foreseen legal situation as of the entry into force. In
the absence of such notification it will be considered that Reporting Financial
Institutions are not effectively prevented by the law of the Reportable
Jurisdiction in one or more circumstances from selling Cash Value Insurance
Contracts or Annuity Contracts to residents of that Reportable Jurisdiction.
Provided the law of the jurisdiction of the Reporting Financial Institution
also does not effectively prevent Reporting Financial Institutions from selling
Cash Value Insurance Contracts or Annuity Contracts to residents of the
Reportable Jurisdiction, Section III (A) of Annex I shall not apply to the
relevant Reporting Financial Institutions and Contracts.
Declaration of
Switzerland on Article 5 of the Agreement
The Swiss delegation has informed the
European Commission that Switzerland will not exchange information in relation
to a request based on data obtained illegally. The European Commission took
note of the Swiss position.