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Document 52023XX0607(01)

    Summary of the Opinion of the European Data Protection Supervisor on the Proposal for a Council Directive amending Directive 2011/16/EU on administrative cooperation in the field of taxation 2023/C 199/04 (The full text of this Opinion can be found in English, French and German on the EDPS website https://edps.europa.eu)

    OJ C 199, 7.6.2023, p. 5–6 (BG, ES, CS, DA, DE, ET, EL, EN, FR, GA, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

    7.6.2023   

    EN

    Official Journal of the European Union

    C 199/5

    Summary of the Opinion of the European Data Protection Supervisor on the Proposal for a Council Directive amending Directive 2011/16/EU on administrative cooperation in the field of taxation

    (2023/C 199/04)

    (The full text of this Opinion can be found in English, French and German on the EDPS website https://edps.europa.eu)

    With this Opinion, issued pursuant to Article 42(1) of Regulation (EU) 2018/1725 of the Parliament and of the Council (1), the EDPS puts forward recommendations on the Proposal for a Council Directive amending Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation (2) having regard to the fundamental rights to privacy and to the protection of personal data (‘the Proposal’).

    The EDPS welcomes the objectives pursued by the Proposal, notably to ensure tax administrations have access to information that is necessary to perform their duties effectively and to strengthen the general compliance with the provisions of Directive 2011/16/EU. Against this background, the EDPS makes a number of recommendations aiming at ensuring full compliance of the Proposal with the applicable data protection legal framework.

    Reuse of personal data for a different purpose by the competent authority of a Member State may only be allowed if it is grounded in Union or Member State law on the basis of which the further processing is lawfully authorised, constituting a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1) GDPR. To provide a higher level of harmonisation and legal certainty, the EDPS considers that the Proposal should provide an (exhaustive) list of the purposes for which personal data might be further processed.

    As regards access by the Commission to the information recorded in the central directory on administrative cooperation in the field of taxation, the EDPS recommends clarifying which specific obligations of the Commission under the Directive warrant access to the information recorded in the central directory and to clearly specify the purpose of such access.

    The EDPS welcomes, as a matter of principle that the Proposal aims to further clarify the roles and responsibilities of the Member States and the Commission within the meaning of data protection law. At the same time, the EDPS notes that Article 25(3) of Directive 2011/16/EU (both in its current form and as it would be amended by the Proposal) defines the respective roles of the Member States and Commission within the meaning of data protection law in a horizontal manner. To avoid unnecessary duplication, the EDPS recommends deleting the last two sentences of Article 8ad(10) as provided in Article 1(6) of the Proposal. Concerning Article 25(3) as it would be amended by the Proposal, the EDPS recommends clearly indicating in which cases the entities involved in the data processing shall be considered as a controller (alone) and when they shall be considered as joint controller.

    Finally, the EDPS considers that the Proposal should provide not only for minimum, but also for a maximum period of storage duration. In addition, the Proposal should specify that the records of information received through the exchange of information must be deleted after the maximum data retention period, or earlier, if they are no longer necessary.

    1.   INTRODUCTION

    1.

    		 On 8 December 2022, the European Commission issued a Proposal for a Council Directive (EU) amending Directive 2011/16/EU on administrative cooperation in the field of taxation (‘the Proposal’) (3).

    2.

    		 The objectives of the Proposal are (4):

    —

    to introduce provisions for the reporting, due diligence and exchange of information on certain crypto-assets and e-money;

    —

    to introduce the obligation for the competent authorities of the Member States to exchange information on tax rulings with a cross-border element concerning high net worth individuals;

    —

    to introduce provisions on penalties to be applied to infringements of the national provisions transposing Directive 2011/16/EU (‘the Directive’)

    3.

    		 The present Opinion of the EDPS is issued in response to a consultation by the European Commission of 9 February 2023, pursuant to Article 42(1) of EUDPR. The EDPS welcomes the reference to this consultation in recital 43 of the Proposal. The EDPS also positively notes that he was already previously informally consulted pursuant to recital 60 of EUDPR.

    4.   CONCLUSIONS

    32.

    		 In light of the above, the EDPS makes the following recommendations:

    (1)

    to indicate that the Proposal ensures full respect for the right of protection of personal data laid down in Article 8 of the Charter and to recall the applicability of GDPR and the EUDPR to the processing of personal data in the context of the Proposal;

    (2)

    to clarify that the reuse of personal data by the competent authority of each Member State may only be allowed if it is grounded in Union or Member State law which lays down a list of purposes for which the further processing may be lawfully authorised constituting a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1) GDPR and to provide in the Proposal itself an (exhaustive) list of purposes for which personal data might be further processed;

    (3)

    to amend the enacting terms of the Proposal to clarify which specific obligations of the Commission under the Directive warrant access to the information recorded in the central directory;

    (4)

    to delete the last two sentences of Article 8ad(10) as provided in Article 1(6) of the Proposal;

    (5)

    concerning Article 25(3) of the Directive as it would be amended by the Proposal, to clearly indicate in which cases the entities involved in the processing shall be considered as a controller (alone) and when they shall be considered as joint controllers;

    (6)

    to provide for a maximum period of storage duration and to specify that the records of information received through the exchange of information must be deleted after the maximum data retention period, or earlier, if they are no longer necessary.

    Brussels, 3 April 2023.

    Wojciech Rafał WIEWIÓROWSKI

    (1)  Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

    (2)  Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ L 64, 11.3.2011, p. 1).

    (3)  COM(2022) 707 final.

    (4)  COM(2022) 707 final, p. 1.

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