(-1)

The role of vehicles, accounts and companies based in tax havens and non-cooperative jurisdictions has emerged as the common denominator in a vast range of operations, generally detected a posteriori, which conceal tax fraud, capital flight and money laundering practices. This fact in itself should call for political and diplomatic action aimed at eliminating offshore centres at a global level.

(1)

Council Directive 2011/16/EU (11) as amended by Directive 2014/107/EU (12) applies as of 1 January 2016 to 27 Member States and as of 1 January 2017 to Austria. That Directive implements the Global Standard for Automatic Exchange of Financial Account Information in Tax Matters (‘Global Standard’) within the Union. As such, it ensures that information on Account Holders of Financial Accounts is reported to the Member State where the Account Holder is resident.

(1)

Council Directive 2011/16/EU (11) as amended by Council Directive 2014/107/EU (12) applies as of 1 January 2016 to 27 Member States and as of 1 January 2017 to Austria. That Directive implements the Global Standard for Automatic Exchange of Financial Account Information in Tax Matters (‘Global Standard’) within the Union. As such, it ensures that information on Account Holders of Financial Accounts is reported to the Member State where the Account Holder is resident , with the aim of combating tax evasion, tax avoidance and aggressive tax planning .

(1a)

Combating tax evasion and tax avoidance, including in connection with money laundering, is an absolute priority for the Union.

(3)

To ensure effective monitoring of the application by Financial Institutions of the due diligence procedures set forth in Directive 2011/16/EU, the tax authorities need access to AML information. In the absence of such access, those authorities would not be able to monitor, confirm and audit that the Financial Institutions apply properly Directive 2011/16/EU by identifying correctly and reporting the beneficial owners of intermediary structures.

(3)

To ensure effective monitoring of the application by Financial Institutions of the due diligence procedures set forth in Directive 2011/16/EU, the tax authorities need rapid and complete access to AML information and to have at their disposal sufficient numbers of suitably skilled staff to perform that task and the ability to exchange such information . That access should be the result of a mandatory automatic exchange of information. In the absence of such access and the appropriate staff , those authorities would not be able to monitor, confirm and audit that the Financial Institutions apply properly Directive 2011/16/EU by identifying correctly and reporting the beneficial owners of intermediary structures.

(3a)

The observed link between tax evasion, tax avoidance and money laundering calls for exploiting, to the maximum extent, synergies stemming from domestic, Union and international cooperation between the different authorities involved in fighting these crimes and abuses. Issues such as beneficial ownership transparency or the extent to which entities such as legal professions are subject to the AML framework in third countries are crucial to enhancing the ability of Union authorities to address tax dodging and money laundering.

(3b)

The Swissleaks, Luxleaks, Panama Papers and Bahamas Leaks revelations, which are individual manifestations of a global phenomenon, have confirmed the paramount need for greater tax transparency and much closer coordination and cooperation between jurisdictions.

(3c)

The mandatory automatic exchange of tax information is recognised internationally, at G20, OECD and Union level, as the most effective instrument in the achievement of international tax transparency. In its communication of 5 July 2016 on further measures to enhance transparency against tax evasion and avoidance  (1a) , the Commission stated that ‘there is a strong case for extending the administrative cooperation between tax authorities even further, to cover beneficial ownership information’ and that ‘the automatic exchange of information on beneficial ownership could potentially be integrated into the binding tax transparency framework already in place in the EU’. Moreover, all Member States are already taking part in a pilot project on the exchange of information concerning final beneficial owners of firms and trusts.

(4)

It is therefore necessary to ensure the access by the tax authorities to the AML information, procedures, documents and mechanisms for the performance of their duties in monitoring the proper application of Directive 2011/16/EU.

(4)

Union rules on the prevention and combating of money laundering have over time incorporated changes in international standards, with the aim of strengthening Member State coordination and responding to the challenges faced at global level, in particular because of the links between money laundering, the funding of terrorism, organised crime and tax evasion and avoidance. It is therefore necessary to ensure direct and facilitated access by the tax authorities to the AML information, procedures, documents and mechanisms for the performance of their duties in monitoring the proper application of Directive 2011/16/EU and for the functioning of all forms of administrative cooperation referred to in that Directive , and to include that information, where relevant, in the automatic exchanges between Member States, and to provide access to the Commission, on a confidential basis .

(4b)

In addition, it is important that tax authorities have adequate information and communications technology (ICT) systems in place that can trace money-laundering activities at an early stage. In that regard tax authorities should have adequate ICT and staff resources that can cope with the large amount of AML information to be exchanged between Member States.

(4c)

Moreover, given that the upgraded information exchange and the information leaks have increased the spontaneous exchange and availability of information, it is very important that Member States investigate and act upon all potential wrongdoing.

(4d)

Since AML information is in many cases of a cross-border nature, it should be included, where relevant, in the automatic exchange between Member States and should be made available on request to the Commission in the framework of its power to enforce state aid rules. Moreover, given the complexity and the need to verify the reliability of this information, such as in the case of data on beneficial ownership, tax authorities should cooperate on cross-border enquiries.

(4e)

An automatic, mandatory and continuous exchange of information in the field of taxation between the various competent authorities is essential in order to ensure maximum transparency and to have a basic instrument for preventing and combating fraudulent behaviour of all kinds.

(4f)

Given the global character of money laundering activities, international cooperation is key to an effective and efficient fight against such activities.

(6)

Since the objective of this Directive, namely the efficient administrative cooperation between Member States and its effective monitoring under conditions compatible with the proper functioning of the internal market, cannot be sufficiently achieved by the Member States and can therefore, by reason of the uniformity and effectiveness required, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(6)

Since the objective of this Directive, namely the efficient administrative cooperation between Member States and its effective monitoring under conditions compatible with the proper functioning of the internal market in order to combat tax fraud , cannot be sufficiently achieved by the Member States and can therefore, by reason of the uniformity and effectiveness required, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(7)

The customer due diligence carried out by Financial Institutions under Directive 2011/16/EU has already started and the first exchanges are to be finalised by September 2017. Therefore, in order to ensure that the effective monitoring of the application is not delayed, this Amending Directive should enter into force and be transposed by 1 January 2017 .

(7)

The customer due diligence carried out by Financial Institutions under Directive 2011/16/EU has already started and the first exchanges are to be finalised by September 2017. Therefore, in order to ensure that the effective monitoring of the application is not delayed, this Amending Directive should enter into force and be transposed by 1 January 2018 .

(-1)

1.   This Directive shall apply to all taxes of any kind levied by, or on behalf of, a Member State or the Member State’s territorial or administrative subdivisions, including the local authorities , as well as to virtual currency exchange services and custodial wallet providers .

(-1a)

‘Article 8a

The tax authorities of a Member State shall, within three months of their collection, automatically exchange the documents and information referred to in Article 22 of this Directive with any other Member State if the beneficial owner of a firm, or, in the case of a trust, the settlor, one of the trustees, the protector (where relevant), a beneficiary or any other person exercising genuine control over the trust, or, lastly, the holder of an account referred to in Article 32a of Directive (EU) 2015/849 is a taxpayer in that Member State. Access should be provided to the Commission for the completion of its missions, on a confidential basis.’

(1a)

‘1b.     For the purpose of the effective use of exchanged data, Member States shall ensure that all information exchanged and obtained shall be investigated in a timely manner, whether that information has been obtained by authorities on request, through spontaneous information exchange by another Member State, or from a public information leak. Should a Member State fail to do this in a timeframe required by national law, it shall publicly communicate the reasons for this failure to the Commission.’