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Document 52023AP0004
European Parliament legislative resolution of 17 January 2023 on the proposal for a Council directive laying down rules to prevent the misuse of shell entities for tax purposes and amending Directive 2011/16/EU (COM(2021)0565 — C9-0041/2022 — 2021/0434(CNS))
European Parliament legislative resolution of 17 January 2023 on the proposal for a Council directive laying down rules to prevent the misuse of shell entities for tax purposes and amending Directive 2011/16/EU (COM(2021)0565 — C9-0041/2022 — 2021/0434(CNS))
European Parliament legislative resolution of 17 January 2023 on the proposal for a Council directive laying down rules to prevent the misuse of shell entities for tax purposes and amending Directive 2011/16/EU (COM(2021)0565 — C9-0041/2022 — 2021/0434(CNS))
OJ C 214, 16.6.2023, p. 223–250
(BG, ES, CS, DA, DE, ET, EL, EN, FR, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
OJ C 214, 16.6.2023, p. 202–229
(GA)
16.6.2023 |
EN |
Official Journal of the European Union |
C 214/223 |
P9_TA(2023)0004
Rules to prevent the misuse of shell entities for tax purposes
European Parliament legislative resolution of 17 January 2023 on the proposal for a Council directive laying down rules to prevent the misuse of shell entities for tax purposes and amending Directive 2011/16/EU (COM(2021)0565 — C9-0041/2022 — 2021/0434(CNS))
(Special legislative procedure — consultation)
(2023/C 0/19)
The European Parliament,
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having regard to the Commission proposal to the Council (COM(2021)0565), |
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having regard to Article 115 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C9-0041/2022), |
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having regard to Rule 82 of its Rules of Procedure, |
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having regard to the report of the Committee on Economic and Monetary Affairs (A9-0293/2022), |
1. |
Approves the Commission proposal as amended; |
2. |
Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union; |
3. |
Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament; |
4. |
Asks the Council to consult Parliament again if it intends to substantially amend the Commission proposal; |
5. |
Instructs its President to forward its position to the Council, the Commission and the national parliaments. |
Amendment 1
Proposal for a directive
Recital 1
Text proposed by the Commission |
Amendment |
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Amendment 2
Proposal for a directive
Recital 1 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 3
Proposal for a directive
Recital 1 b (new)
Text proposed by the Commission |
Amendment |
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Amendment 4
Proposal for a directive
Recital 1 c (new)
Text proposed by the Commission |
Amendment |
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Amendment 5
Proposal for a directive
Recital 2
Text proposed by the Commission |
Amendment |
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Amendment 6
Proposal for a directive
Recital 3
Text proposed by the Commission |
Amendment |
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Amendment 7
Proposal for a directive
Recital 3 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 8
Proposal for a directive
Recital 4
Text proposed by the Commission |
Amendment |
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Amendment 9
Proposal for a directive
Recital 5
Text proposed by the Commission |
Amendment |
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Amendment 10
Proposal for a directive
Recital 6
Text proposed by the Commission |
Amendment |
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Amendment 11
Proposal for a directive
Recital 8
Text proposed by the Commission |
Amendment |
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Amendment 12
Proposal for a directive
Recital 9
Text proposed by the Commission |
Amendment |
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Amendment 13
Proposal for a directive
Recital 10
Text proposed by the Commission |
Amendment |
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Amendment 14
Proposal for a directive
Recital 11
Text proposed by the Commission |
Amendment |
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Amendment 15
Proposal for a directive
Recital 13
Text proposed by the Commission |
Amendment |
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Amendment 16
Proposal for a directive
Recital 13 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 17
Proposal for a directive
Recital 15
Text proposed by the Commission |
Amendment |
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Amendment 18
Proposal for a directive
Recital 16
Text proposed by the Commission |
Amendment |
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Amendment 19
Proposal for a directive
Recital 18
Text proposed by the Commission |
Amendment |
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Amendment 20
Proposal for a directive
Article 3 — paragraph 1 — point 5
Text proposed by the Commission |
Amendment |
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Amendment 21
Proposal for a directive
Article 3 — paragraph 1 — point 6 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 22
Proposal for a directive
Article 6 — paragraph 1 — subparagraph 1 — introductory part
Text proposed by the Commission |
Amendment |
1. Member States shall require that undertakings meeting the following criteria to report to the competent authorities of Member States in accordance with Article 7: |
1. Member States shall require that undertakings meeting the following cumulative criteria to report to the competent authorities of Member States in accordance with Article 7: |
Amendment 23
Proposal for a directive
Article 6 — paragraph 1 — subparagraph 1 — point a
Text proposed by the Commission |
Amendment |
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Amendment 24
Proposal for a directive
Article 6 — paragraph 1 — subparagraph 1 — point b — point i
Text proposed by the Commission |
Amendment |
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Amendment 25
Proposal for a directive
Article 6 — paragraph 1 — subparagraph 1 — point b — point ii
Text proposed by the Commission |
Amendment |
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Amendment 26
Proposal for a directive
Article 6 — paragraph 1 — subparagraph 1 — point c
Text proposed by the Commission |
Amendment |
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Amendment 27
Proposal for a directive
Article 6 — paragraph 2– subparagraph 1 — introductory part
Text proposed by the Commission |
Amendment |
2. By derogation from paragraph 1, Member States shall ensure that the undertakings falling within any of the following categories are not subject to requirements of Article 7: |
2. By derogation from paragraph 1, Member States shall ensure that the following undertakings are not subject to requirements of Article 7: |
Amendment 28
Proposal for a directive
Article 6 — paragraph 2 — subparagraph 1 — point e
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 29
Proposal for a directive
Article 7 — paragraph 1 — point a
Text proposed by the Commission |
Amendment |
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Amendment 30
Proposal for a directive
Article 7 — paragraph 1 — point b
Text proposed by the Commission |
Amendment |
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Amendment 31
Proposal for a directive
Article 7 — paragraph 1 — point c — point i — point 2
Text proposed by the Commission |
Amendment |
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Amendment 32
Proposal for a directive
Article 7 — paragraph 1 — point c — point i — point 3
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 33
Proposal for a directive
Article 7 — paragraph 1 — point c — point i — point 4
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 34
Proposal for a directive
Article 7 — paragraph 1 — point c — point ii
Text proposed by the Commission |
Amendment |
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Amendment 35
Proposal for a directive
Article 7 — paragraph 2 — point g a (new)
Text proposed by the Commission |
Amendment |
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Amendment 36
Proposal for a directive
Article 7 — paragraph 2 — point g b (new)
Text proposed by the Commission |
Amendment |
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Amendment 37
Proposal for a directive
Article 8 — paragraph 1
Text proposed by the Commission |
Amendment |
1. An undertaking that declares to meet all the indicators of minimum substance set out in Article 7(1) and provides the satisfactory supporting documentary evidence in accordance with Article 7(2) shall be presumed to have minimum substance for the tax year. |
1. An undertaking that declares to meet all the indicators of minimum substance set out in Article 7(1) and provides the required supporting documentary evidence in accordance with Article 7(2) shall be presumed to have minimum substance for the tax year. |
Amendment 38
Proposal for a directive
Article 8 — paragraph 2
Text proposed by the Commission |
Amendment |
2. An undertaking that declares not to meet one or more of the indicators set out in Article 7(1) or does not provide satisfactory supporting documentary evidence in accordance with Article 7(2) shall be presumed not to have minimum substance for the tax year. |
2. An undertaking that declares not to meet one or more of the indicators set out in Article 7(1) or does not provide the required supporting documentary evidence in accordance with Article 7(2) shall be presumed not to have minimum substance for the tax year. |
Amendment 39
Proposal for a directive
Article 9 — paragraph 1
Text proposed by the Commission |
Amendment |
1. Member States shall take the appropriate measures to allow undertakings that are presumed not to have minimum substance under Article 8(2) to rebut this presumption by providing any additional supporting evidence of the business activities which they perform to generate relevant income. |
1. Member States shall take the necessary measures to allow undertakings that are presumed not to have minimum substance under Article 8(2) to rebut this presumption , without undue delay and excessive administrative costs, by providing any additional supporting evidence of the business activities which they perform to generate relevant income. |
Amendment 40
Proposal for a directive
Article 9 — paragraph 2 — point a
Text proposed by the Commission |
Amendment |
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Amendment 41
Proposal for a directive
Article 9 — paragraph 2 — point b
Text proposed by the Commission |
Amendment |
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Amendment 42
Proposal for a directive
Article 9 — paragraph 3 a (new)
Text proposed by the Commission |
Amendment |
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3a. The Member State shall consider a request for the rebuttal of the presumption within a period of nine months after the introduction of the request and it shall be considered to be accepted in the absence of an answer from the Member State after the expiry of that nine-month period. |
Amendment 43
Proposal for a directive
Article 10 — paragraph 1
Text proposed by the Commission |
Amendment |
1. A Member State shall take the appropriate measures to allow an undertaking that meets the criteria laid down in Article 6(1) to request an exemption from its obligations under this Directive if the existence of the undertaking does not reduce the tax liability of its beneficial owner(s) or of the group, as a whole, of which the undertaking is a member. |
1. A Member State shall take the necessary measures to allow an undertaking that meets the criteria laid down in Article 6(1) to request , without undue delay and excessive administrative costs, an exemption from its obligations under this Directive if the existence of the undertaking does not reduce the tax liability of its beneficial owner(s) or of the group, as a whole, of which the undertaking is a member. |
Amendment 44
Proposal for a directive
Article 10 — paragraph 2
Text proposed by the Commission |
Amendment |
2. A Member State may grant that exemption for one tax year if the undertaking provides sufficient and objective evidence that its interposition does not lead to a tax benefit for its beneficial owner(s) or the group as a whole, as the case may be. That evidence shall include information about the structure of the group and its activities. That evidence shall allow to compare the amount of overall tax due by the beneficial owner(s) or the group as a whole, as the case may be, having regard to the interposition of the undertaking, with the amount that would be due under the same circumstances in the absence of the undertaking. |
2. A Member State may grant that exemption for one tax year if the undertaking provides sufficient and objective evidence that its interposition does not lead to a tax benefit for its beneficial owner(s) or the group as a whole, as the case may be. That evidence shall include information about the structure of the group and its activities , including a list of its employees working on full-time equivalence . That evidence shall allow to compare the amount of overall tax due by the beneficial owner(s) or the group as a whole, as the case may be, having regard to the interposition of the undertaking, with the amount that would be due under the same circumstances in the absence of the undertaking. |
Amendment 45
Proposal for a directive
Article 10 — paragraph 3 a (new)
Text proposed by the Commission |
Amendment |
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3a. A Member State shall consider the exemption request within a period of nine months after the introduction of the request and it shall be considered to be accepted in the absence of an answer from the Member State after the expiry of the nine-month period. |
Amendment 46
Proposal for a directive
Article 12 — paragraph 1 — introductory part
Text proposed by the Commission |
Amendment |
Where an undertaking does not have minimum substance for tax purposes in the Member State where it is resident for tax purposes, that Member State shall take any of the following decisions: |
Where an undertaking does not have minimum substance for tax purposes in the Member State where it is resident for tax purposes, that Member State shall deny any request for a certificate of tax residence to the undertaking for use outside the jurisdiction of that Member State. |
Amendment 47
Proposal for a directive
Article 12 — paragraph 1 — point a
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 48
Proposal for a directive
Article 12 — paragraph 1 — point b
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 49
Proposal for a directive
Article 12 — paragraph 1 a (new)
Text proposed by the Commission |
Amendment |
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When denying a request for such certificate, the Member State shall issue an official statement duly justifying such decision and prescribing that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and, where applicable, capital, or of international agreements with a similar purpose or effect and of Articles 4, 5 and 6 of Directive 2011/96/EU and Article 1 of Directive 2003/49/EC. |
Amendment 50
Proposal for a directive
Article 12 — paragraph 1 b (new)
Text proposed by the Commission |
Amendment |
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In cooperation with Member States, the Commission shall ensure that those tax consequences are well articulated in relation to existing bilateral tax agreements with third countries so that they receive the information on the presumed shell companies. |
Amendment 51
Proposal for a directive
Article 13 — paragraph 1 — point 2
Directive 2011/16/EU
Article 8ad — paragraph 4 — point b
Text proposed by the Commission |
Amendment |
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Amendment 52
Proposal for a directive
Article 13 — paragraph 1 — point 2
Directive 2011/16/EU
Article 8ad — paragraph 4 — point g
Text proposed by the Commission |
Amendment |
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Amendment 53
Proposal for a directive
Article 13 — paragraph 1 — point 2
Directive 2011/16/EU
Article 8ad — paragraph 6 a (new)
Text proposed by the Commission |
Amendment |
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6a. Where, in accordance with paragraphs 1, 2 or 3, the competent authority of a Member State identifies other Member States likely to be concerned by the reporting of the undertaking, the communication referred to in those paragraphs shall include a specific alert to those Member States deemed to be concerned. |
Amendment 54
Proposal for a directive
Article 14 — paragraph 2
Text proposed by the Commission |
Amendment |
Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 5 % of the undertaking’s turnover in the relevant tax year, if the undertaking that is required to report pursuant to Article 6 does not comply with such requirement for a tax year within the prescribed deadline or makes a false declaration in the tax return under Article 7. |
Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 2 % of the undertaking’s revenue in the relevant tax year, if the undertaking that is required to report pursuant to Article 6 does not comply with such requirement for a tax year within the prescribed deadline and an administrative pecuniary sanction of at least 4 % of the undertaking’s revenue if the undertaking that is required to report pursuant to Article 6 makes a false declaration in the tax return under Article 7. In case of an undertaking with zero or low revenue, defined as being below a threshold determined by the national tax authority and not falling below a minimum threshold set by the Commission in an implementing act, the penalty should be based on the total assets of the undertaking. |
Amendment 55
Proposal for a directive
Article 14 — paragraph 2 a (new)
Text proposed by the Commission |
Amendment |
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The implementing act referred to in the second subparagraph shall be adopted in accordance with the examination procedure referred to in Article 18a. |
Amendment 56
Proposal for a directive
Article 15 — title
Text proposed by the Commission |
Amendment |
Request for tax audits |
Request for joint tax audits |
Amendment 57
Proposal for a directive
Article 15 — paragraph 1
Text proposed by the Commission |
Amendment |
Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may request the competent authority of the latter to conduct a tax audit of the undertaking. |
Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may , specifying such reasons, request the competent authority of the latter to conduct a joint tax audit of the undertaking following the procedures laid down in Article 12a of Council Directive (EU) 2021/514 (17) . |
Amendment 58
Proposal for a directive
Article 15 — paragraph 2
Text proposed by the Commission |
Amendment |
The competent authority of the requested Member State shall initiate it within one month from the date of receipt of the request and conduct the tax audit , in accordance with the rules governing tax audits in the requested Member State. |
If the requesting competent authority is not able to conduct a joint tax audit due to legal reasons, the competent authority of the requested Member State shall initiate a national audit within one month from the date of receipt of the request and conduct it , in accordance with the rules governing tax audits in the requested Member State. |
Amendment 59
Proposal for a directive
Article 16 — paragraph 1 — point f
Text proposed by the Commission |
Amendment |
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Amendment 60
Proposal for a directive
Article 17– title
Text proposed by the Commission |
Amendment |
Reports |
Review |
Amendment 61
Proposal for a directive
Article 17 — paragraph 1
Text proposed by the Commission |
Amendment |
1. By 31 December 2028 , the Commission shall present a report to the European Parliament and the Council on the implementation of this Directive. |
1. By … [five years after date of transposition of this Directive] the Commission shall submit a report to the European Parliament and the Council on the implementation and operation of this Directive. Where appropriate, the report shall be accompanied by a review with a view to increasing the effectiveness of this Directive and a legislative proposal amending this Directive. |
Amendment 62
Proposal for a directive
Article 17 — paragraph 1 a (new)
Text proposed by the Commission |
Amendment |
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1a. The report shall review and assess the impact of this Directive on tax revenues in Member States, on tax administration’s capacities and in particular, whether there is a need to amend this Directive. The report shall also assess whether it would be appropriate to add a substance indicator based on pre-tax profit per employee in Article 7 and to extend the obligation to report on indicators of minimum substance for tax purposes set out in that Article to regulated financial undertakings and, if necessary, review the exemption granted to them in Article 6 (2b). |
Amendment 63
Proposal for a directive
Article 17 — paragraph 2
Text proposed by the Commission |
Amendment |
2. When drawing up the report, the Commission shall take into account the information communicated by the Member States pursuant to Article 15 . |
2. When drawing up the report, the Commission shall take into account the information communicated by the Member States pursuant to Article 16 . |
Amendment 64
Proposal for a directive
Article 18 a (new)
Text proposed by the Commission |
Amendment |
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Article 18a Committee procedure 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. |
(10) Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ L 193, 19.7.2016, p. 1).
(11) 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).
(10) Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ L 193, 19.7.2016, p. 1).
(11) 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).
(12) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
(13) General Secretariat of the Council, 9637/18 FISC 241 ECOFIN 555, Code of Conduct (Business Taxation), Guidance on the interpretation of the third criterion; OECD/G20 Base Erosion and Profit Shifting Project, Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance, Action 5: Final Report.
(12) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
(13) General Secretariat of the Council, 9637/18 FISC 241 ECOFIN 555, Code of Conduct (Business Taxation), Guidance on the interpretation of the third criterion; OECD/G20 Base Erosion and Profit Shifting Project, Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance, Action 5: Final Report.
(14) Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ L 345, 29.12.2011, p. 8).
(15) Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ L 157, 26.6.2003, p. 49).
(14) Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ L 345, 29.12.2011, p. 8).
(15) Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ L 157, 26.6.2003, p. 49).
(16) Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation (OJ L 104, 25.3.2021, p. 1).
(17) Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation (OJ L 104, 25.3.2021, p. 1).