REPORT on the proposal for a Council directive on Double Taxation Dispute Resolution Mechanisms in the European Union

14.6.2017 - (COM(2016)0686 – C8‑0035/2017 – 2016/0338(CNS)) - *

Committee on Economic and Monetary Affairs
Rapporteur: Michael Theurer

Amendments

Procedure : 2016/0338(CNS)

Document stages in plenary

Document selected :

A8-0225/2017

Texts tabled :

A8-0225/2017

Debates :

PV 05/07/2017 - 19
CRE 05/07/2017 - 19

Votes :

PV 06/07/2017 - 11.9
CRE 06/07/2017 - 11.9

Texts adopted :

P8_TA(2017)0314

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
EXPLANATORY STATEMENT
PROCEDURE – COMMITTEE RESPONSIBLE
FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council directive on Double Taxation Dispute Resolution Mechanisms in the European Union

(COM(2016)0686 – C8‑0035/2017 – 2016/0338(CNS))

(Special legislative procedure – consultation)

The European Parliament,

– having regard to the Commission proposal to the Council (COM(2016)0686),

– having regard to Article 115 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C8‑0035/2017),

– having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to its resolutions of 25 November 2015[1] and of 6 July 2016[2] on tax rulings and other measures similar in nature or effect,

– having regard to Rule 78c of its Rules of Procedure,

– having regard to the report of the Committee on Economic and Monetary Affairs (A8-0225/2017),

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. Calls on the Council to consider the possibility of progressively abrogating the Convention of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises[3] after the adoption of the proposed Directive and thereby to strengthen a coordinated Union approach to dispute resolution through the proposed Directive;

6. 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
(1) Situations, in which different Member States tax the same income or capital twice can create serious tax obstacles for businesses operating cross border. They create an excessive tax burden for businesses and are likely to cause economic distortions and inefficiencies, as well as to have a negative impact on cross border investment and growth.	(1) On the basis of the principle of fair and effective taxation, all businesses must pay their fair share of tax where profits and gains are generated, but double taxation and double non-taxation must be avoided. Situations in which different Member States tax the same income or capital twice can create serious tax obstacles, mainly for small and medium-sized businesses operating cross border and thus have a negative impact on the proper functioning of the internal market. They create an excessive tax burden, a lack of legal certainty and unnecessary costs for businesses and are likely to cause economic distortions and inefficiencies. In addition, they have a negative impact on cross-border investment and growth.

Amendment 2

Proposal for a directive

Recital 1 a (new)


Text proposed by the Commission	Amendment
	(1a) On 25 November 2015, the European Parliament adopted a resolution on tax rulings and other measures similar in nature or effect, where it contested the usefulness of the Convention of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises^1a (the ‘Union Arbitration Convention’) and considered that that instrument should be reshaped and be made more efficient, or replaced by an EU dispute mechanism with more effective mutual agreement procedures. On 6 July 2016, the European Parliament adopted a resolution on tax rulings and other measures similar in nature or effect, where it stressed that the setting of a clear timeframe for dispute resolution procedures is key to enhancing the effectiveness of the systems.
	___________
	^1a OJ L 225, 20.8.1990, p. 10.

Amendment 3

Proposal for a directive

Recital 1 b (new)

Text proposed by the Commission

Amendment

(1b) On 16 December 2015, the European Parliament adopted a resolution with recommendations to the Commission on bringing transparency, coordination and convergence to corporate tax policies in the Union, where it called on the Commission to propose legislation to improve cross-border taxation disputes in the Union, focussing not only on cases of double taxation but also double non-taxation. It also called for clearer rules, more stringent timelines and transparency.

Amendment 4

Proposal for a directive

Recital 1 c (new)

Text proposed by the Commission

Amendment

(1c) Attempts to eliminate double taxation have often led to "double non-taxation", where, through the practice of base erosion and profit shifting, companies have managed to have their profits taxed in those Member States which have corporate taxes of close to zero. That ongoing practice distorts competition, damages domestic enterprises and undermines taxation, to the detriment of growth and jobs.

Amendment 5

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2) For this reason, it is necessary that mechanisms available in the Union ensure the resolution of double taxation disputes and the effective elimination of the double taxation at stake.

(2) Current dispute resolution procedures are too long, costly and often do not result in an agreement, with some cases receiving no acknowledgement at all. Some businesses currently accept double taxation rather than spending money and time on burdensome procedures to eliminate double taxation. For this reason, it is essential that mechanisms available in the Union ensure an effective, rapid and enforceable resolution of double taxation disputes and the effective and timely elimination of the double taxation at stake, with regular and effective communication to the taxpayer.

Amendment 6

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3) The currently existing mechanisms provided for in bilateral tax treaties do not achieve the provision of a full relief from double taxation in a timely manner in all cases. The existing Convention on the elimination of double taxation in connection with the adjustments of profits of associated enterprises (90/436/EEC)⁷ ('the Union Arbitration Convention') has a limited scope as it is only applicable to transfer pricing disputes and attribution of profits to permanent establishments. The monitoring exercise carried out as part of the implementation of the Union Arbitration Convention has revealed some important shortcomings, in particular as regards access to the procedure and the length and the effective conclusion of the procedure.

(3) The currently existing mechanisms provided for in bilateral double taxation treaties do not achieve the provision of a full relief from double taxation in a timely manner in all cases. The mechanisms provided for in those treaties are, in many cases lengthy, costly, difficult to access and do not always lead to agreement. The Union Arbitration Convention has a limited scope as it is only applicable to transfer pricing disputes and attribution of profits to permanent establishments. The monitoring exercise carried out as part of the implementation of the Union Arbitration Convention has revealed some important shortcomings, in particular as regards access to the procedure, a lack of legal remedies, the length and the absence of a final binding effective conclusion of the procedure. Those shortcomings represent an obstacle to investment and should be eliminated.

_________________

⁷ OJ L 225, 20.8.1990, p. 10.

Amendment 7

Proposal for a directive

Recital 3 a (new)

Text proposed by the Commission

Amendment

(3a) In order to shape a fair, clear and stable tax environment and to reduce taxation disputes within the internal market, at least some minimum convergence in corporate tax policies is required. The introduction of a common consolidated corporate tax base (CCCTB) as proposed by the Commission^1ais the most effective way of eliminating the risk of double corporate taxation.

______________

^1a Proposal for a Council directive on a Common Consolidated Corporate Tax Base (CCCTB) (COM(2016)0683).

Amendment 8

Proposal for a directive

Recital 4

Text proposed by the Commission

Amendment

(4) With a view to create a fairer tax environment, rules on transparency need to be enhanced and anti-avoidance measures need to be strengthened. At the same time in the spirit of a fair taxation system, it is necessary to ensure that taxpayers are not taxed twice on the same income and that mechanisms on dispute resolution are comprehensive, effective and sustainable. Improvements to double taxation dispute resolution mechanisms are also necessary to respond to a risk of increased number of double or multiple taxation disputes with potentially high amounts being at stake due to more regular and focused audit practices established by tax administrations.

(4) With a view to create a fairer tax environment for enterprises active in the Union, rules on transparency need to be enhanced and anti-avoidance and tax evasion measures need to be strengthened nationally, at Union level and globally. Avoiding double non-taxation must remain a priority of the Union. At the same time in the spirit of a fair taxation system, it is necessary to ensure that taxpayers are not taxed twice on the same income and that mechanisms on dispute resolution are comprehensive, effective and sustainable. Improvements to double taxation dispute resolution mechanisms are also vital in order to respond to a risk of increased number of double or multiple taxation disputes with potentially high amounts being at stake due to more regular and focused audit practices established by tax administrations.

Amendment 9

Proposal for a directive

Recital 5


Text proposed by the Commission	Amendment
(5) The introduction of an effective and efficient framework for resolution of tax disputes which ensures legal certainty and a business friendly environment for investments is therefore a crucial action in order to achieve a fair and efficient corporate tax system in the Union. The double taxation dispute resolution mechanisms should also create a harmonised and transparent framework for solving double taxation issues and as such provide benefits to all taxpayers.	(5) The introduction of an effective and efficient framework for resolution of tax disputes which ensures legal certainty and supports investments is therefore a crucial action in order to achieve a fair and efficient corporate tax system in the Union. Member States should dedicate an adequate level of human, technical and financial resources to competent authorities for this purpose.

Amendment 10

Proposal for a directive

Recital 5 a (new)


Text proposed by the Commission	Amendment
	(5a) The Union has the potential to become a model and a global leader in tax transparency and coordination. The double taxation dispute resolution mechanisms should therefore also create a harmonised and transparent framework for solving double taxation issues and as such provide benefits to all taxpayers. Unless proven by the taxpayers concerned that some sensitive trade, industrial or professional information in the decision should not be published, all final decisions should be published in their entirety and be made available by the Commission in a common data format also on a centrally managed webpage. Publication of final decisions is in the interest of the public as it improves understanding of how the rules should be interpreted and applied. This Directive will only realise its full potential if similar rules are also implemented in third countries. Therefore, the Commission should also advocate the establishment of binding dispute resolution procedures at international level.

Amendment 11

Proposal for a directive

Recital 5 b (new)

Text proposed by the Commission

Amendment

(5b) An effective and efficient framework should include the possibility for Member States to propose alternative dispute resolution mechanisms that take better account of the specific characteristics of small and medium-sized enterprises (‘SMEs’) and can result in lower costs, less bureaucracy, more efficiency and the faster elimination of double taxation.

Amendment 12

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) The elimination of double taxation should be achieved through a procedure under which, as a first step, the case is submitted to the tax authorities of the Member States concerned with a view to settling the dispute by Mutual Agreement Procedure. In the absence of such agreement within a certain time frame, the case should be submitted to an Advisory Commission or Alternative Dispute Resolution Commission, consisting both of representatives of the tax authorities concerned and of independent persons of standing. The tax authorities should take a final binding decision by reference to the opinion of an Advisory Commission or Alternative Dispute Resolution Commission.

(6) The elimination of double taxation should be achieved through a procedure that is simple to use. As a first step, the case is submitted to the tax authorities of the Member States concerned with a view to settling the dispute by Mutual Agreement Procedure. In the absence of such agreement within a certain time frame, the case should be submitted to an Advisory Commission or an Alternative Dispute Resolution Commission, consisting both of representatives of the tax authorities concerned and of independent persons of standing whose names will appear in a publicly available list of independent persons of standing. The tax authorities should take a final binding decision by reference to the opinion of the Advisory Commission or Alternative Dispute Resolution Commission.

Amendment 13

Proposal for a directive

Recital 7 a (new)

Text proposed by the Commission

Amendment

(7a) The procedure for the settlement of double taxation disputes provided for in this Directive consists, among other options, of dispute resolution for the taxpayer. That includes mutual agreement procedures under bilateral double tax conventions or under the Union Arbitration Convention. The dispute resolution procedure laid down in this Directive should be prioritised over the other options, as it provides for a coordinated, Union-wide approach to dispute resolution, including clear and enforceable rules, a duty to eliminate double taxation and a fixed timeframe.

Amendment 14

Proposal for a directive

Recital 7 b (new)

Text proposed by the Commission

Amendment

(7b) At present, it is unclear how this Directive relates to existing arbitration provisions in bilateral tax agreements and the existing Union Arbitration Convention. Therefore, the Commission should clarify those relations so that taxpayers can, if applicable, choose the procedure best fit for purpose.

Amendment 15

Proposal for a directive

Recital 7 c (new)

Text proposed by the Commission

Amendment

(7c) A large number of double taxation cases involve third countries. Therefore, the Commission should strive to create a global framework, preferably within the context of the OECD. Until such OECD framework has been realised, the Commission should aim for a mandatory, instead of the current voluntary, and binding agreement procedure for all cases of potential cross-border double taxation.

Amendment 16

Proposal for a directive

Recital 10 a (new)

Text proposed by the Commission

Amendment

(10a) The scope of this Directive should be extended as soon as possible. The Directive only provides a framework for the resolution of disputes regarding the double taxation of business profits. Disputes on the double taxation of income, such as pensions and salaries, have not been brought under its scope, while the impact on individuals can be significant. A different interpretation of a tax agreement by Member States can lead to economic double taxation, for example if one Member State interprets a source of income as salary while the other Member State interprets the same source of income as profit. Therefore, differences of interpretation between Member States in relation to the taxation of income should also be brought under the scope of this Directive.

Amendment 17

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11) The Commission should review the application of this Directive after a period of five years and Member States should provide the Commission with appropriate input to support this review,

(11) The Commission should review the application of this Directive after a period of five years, including a determination of whether the Directive should continue to be applied or amended. Member States should provide the Commission with appropriate input to support this review. At the end of its review, the Commission should present a report to the European Parliament and the Council, including an assessment of the extension of the scope of this Directive to cover all cross-border double taxation situations and double non-taxation, and if appropriate, an amending legislative proposal,

Amendment 18

Proposal for a directive

Article 1 – paragraph 4

Text proposed by the Commission

Amendment

This Directive shall not preclude the application of national legislation or provisions of international agreements where it is necessary to prevent tax evasion, tax fraud or abuse.

This Directive shall not preclude the application of national legislation or provisions of international agreements where it is necessary to prevent tax evasion and avoidance, tax fraud or abuse.

Amendment 19

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1. Any taxpayer subject to double taxation shall be entitled to submit a complaint requesting the resolution of the double taxation to each of the competent authorities of the Member States concerned within three years from the receipt of the first notification of the action resulting in double taxation, whether or not it uses the remedies available in the national law of any of the Member States concerned. The taxpayer shall submit the complaint to both competent authorities of the Member States concerned at the same time and indicate in its complaint to each respective competent authority which other Member States are concerned. The Commission shall host a central contact point in all official languages of the Union, which is easily accessible to the public with up-to-date contact information for each competent authority and a full overview of applicable Union legislation and tax treaties.

Amendment 20

Proposal for a directive

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2. The competent authorities shall acknowledge receipt of the complaint within one month from the receipt of the complaint. They shall also inform the competent authorities of the other Member States concerned on the receipt of the complaint.

2. Each competent authority shall acknowledge receipt of the complaint in writing and notify the competent authorities of the other Member States concerned within two weeks of receipt of the complaint.

Amendment 21

Proposal for a directive

Article 3 – paragraph 3 – point a

Text proposed by the Commission

Amendment

(a) name, address, tax identification number and other information necessary for identification of the taxpayer(s) who presented the complaint to the competent authorities and of any other taxpayer directly affected;

Amendment 22

Proposal for a directive

Article 3 – paragraph 3 – point d

Text proposed by the Commission

Amendment

(d) applicable national rules and double taxation treaties;

deleted

Amendment 23

Proposal for a directive

Article 3 – paragraph 3 – point e – point iii

Text proposed by the Commission

Amendment

(iii) a commitment by the taxpayer to respond as completely and quickly as possible to all appropriate requests made by a competent authority and provide any documentation at the request of the competent authorities with the competent authorities giving due consideration to any constraints on access to requested documents and any external time delays;

Amendment 24

Proposal for a directive

Article 3 – paragraph 3 – point f

Text proposed by the Commission

Amendment

(f) any specific additional information requested by the competent authorities.

(f) any specific additional information requested by the competent authorities relevant to the taxation dispute.

Amendment 25

Proposal for a directive

Article 3 – paragraph 5


Text proposed by the Commission	Amendment
5. The competent authorities of the Member States concerned shall take a decision on the acceptance and admissibility of the complaint of a taxpayer within six months of the receipt thereof. The competent authorities shall inform the taxpayers and the competent authorities of the other Member States of their decision.	5. The competent authorities of the Member States concerned shall take a decision on the acceptance and admissibility of the complaint of a taxpayer within three months of the receipt of the complaint and inform that taxpayer and the competent authorities of the other Member States in writing of their decision within two weeks.

Amendment 26

Proposal for a directive

Article 4 – paragraph 1 – subparagraph 1


Text proposed by the Commission	Amendment
Where the competent authorities of the Member States concerned decide to accept the complaint according to Article 3(5), they shall endeavour to eliminate the double taxation by mutual agreement procedure within two years starting from the last notification of one of the Member States’ decision on the acceptance of the complaint.	Where the competent authorities of the Member States concerned decide to accept the complaint according to Article 3(5), they shall endeavour to eliminate the double taxation by mutual agreement procedure within one year starting from the last notification of one of the Member States’ decision on the acceptance of the complaint.

Amendment 27

Proposal for a directive

Article 4 – paragraph 1 – subparagraph 2


Text proposed by the Commission	Amendment
The period of two years referred to in the first subparagraph may be extended by up to six months at the request of a competent authority of a Member State concerned, if the requesting competent authority provides justification it in writing. That extension shall be subject to the acceptance by taxpayers and the other competent authorities.	The period of one year referred to in the first subparagraph may be extended by up to three months at the request of a competent authority of a Member State concerned, if the requesting competent authority provides justification it in writing. That extension shall be subject to the acceptance by taxpayers and the other competent authorities.

Amendment 28

Proposal for a directive

Article 4 – paragraph 3

Text proposed by the Commission

Amendment

3. Once the competent authorities of the Member States have reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall transmit this agreement to the taxpayer as a decision which is binding on the authority and enforceable by the taxpayer, subject to the taxpayer renouncing the right to any domestic remedy. That decision shall be implemented irrespective of any time limits prescribed by the national law of the Member States concerned.

3. Once the competent authorities of the Member States have reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall within five days transmit this agreement to the taxpayer as a decision which is binding on the authority and enforceable by the taxpayer, subject to the taxpayer renouncing the right to any domestic remedy. That decision shall be immediately implemented irrespective of any time limits prescribed by the national law of the Member States concerned.

Amendment 29

Proposal for a directive

Article 4 – paragraph 4

Text proposed by the Commission

Amendment

4. Where the competent authorities of the Member States concerned have not reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall inform the taxpayers indicating the reasons for the failure to reach agreement.

4. Where the competent authorities of the Member States concerned have not reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall inform the taxpayers within two weeks indicating the reasons for the failure to reach agreement and informing the taxpayer of their options for appeal, with relevant contact information for the appeal bodies.

Amendment 30

Proposal for a directive

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

1. The competent authorities of the Member States concerned may decide to reject the complaint where the complaint is inadmissible or there is no double taxation or the three-year period set forth in Article 3(1) is not respected. The competent authorities shall inform the taxpayer of the reasons for the rejection of the complaint.

Amendment 31

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2. Where the competent authorities of the Member States concerned have not taken a decision on the complaint within six months following receipt of a complaint by a taxpayer, the complaint shall be deemed to be rejected.

2. Where the competent authorities of the Member States concerned have not taken a decision on the complaint within three months following receipt of a complaint by a taxpayer, the complaint shall be deemed to be rejected and the taxpayer shall be notified within one month of that three-month period.

Amendment 32

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3. In case of rejection of the complaint, the taxpayer shall be entitled to appeal against the decision of the competent authorities of the Member States concerned in accordance with national rules.

3. In the event of rejection of the complaint, the taxpayer shall be entitled to appeal against the decision of the competent authorities of the Member States concerned in accordance with national rules. The taxpayer is entitled to make an appeal to either competent authority. The competent authority to whom the appeal is made shall inform the other competent authority of the existence of the appeal and the two competent authorities shall coordinate when processing the appeal. In the case of SMEs, if the appeal is successful, the financial burden shall be borne by the competent authority that initially rejected the complaint.

Amendment 33

Proposal for a directive

Article 6 – paragraph 2 – subparagraph 1


Text proposed by the Commission	Amendment
2. The Advisory Commission shall adopt a decision on the admissibility and acceptance of the complaint within six months from the date of notification of the last decision rejecting the complaint under Article 5(1) by the competent authorities of the Member States concerned. By default of any decision notified in the six month period, the complaint is deemed to be rejected.	2. The Advisory Commission shall adopt a decision on the admissibility and acceptance of the complaint within three months from the date of notification of the last decision rejecting the complaint under Article 5(1) by the competent authorities of the Member States concerned. By default of any decision notified within the three-month period, the complaint is deemed to be rejected.

Amendment 34

Proposal for a directive

Article 6 – paragraph 2 – subparagraph 2


Text proposed by the Commission	Amendment
Where the Advisory Commission confirms the existence of double taxation and the admissibility of the complaint, the mutual agreement procedure provided for in Article 4 shall be initiated at the request of one of the competent authorities. The competent authority concerned shall notify the Advisory Commission, the other competent authorities concerned and the taxpayers of that request. The period of two years provided for in Article 4(1) shall start from the date of the decision taken by the Advisory Commission on the acceptance and admissibility of the complaint.	Where the Advisory Commission confirms the existence of double taxation and the admissibility of the complaint, the mutual agreement procedure provided for in Article 4 shall be initiated at the request of one of the competent authorities. The competent authority concerned shall notify the Advisory Commission, the other competent authorities concerned and the taxpayers of that request. The period of one year provided for in Article 4(1) shall start from the date of the decision taken by the Advisory Commission on the acceptance and admissibility of the complaint.

Amendment 35

Proposal for a directive

Article 6 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

3. The Advisory Commission shall be set up by competent authorities of the Member States concerned where they have failed to reach an agreement to eliminate the double taxation under the mutual agreement procedure within the time limit provided for in Article 4(1).

3. If the competent authorities of the Member States concerned have failed to reach an agreement to eliminate the double taxation under the mutual agreement procedure within the time limit provided for in Article 4(1), the Advisory Commission shall deliver an opinion on the elimination of double taxation pursuant to Article 13(1).

Amendment 36

Proposal for a directive

Article 6 – paragraph 4 – subparagraph 1


Text proposed by the Commission	Amendment
4. The Advisory Commission shall be set up no later than fifty calendar days after the end of the six-month period provided for in Article 3(5), if the Advisory Commission is set up in accordance with paragraph 1.	4. The Advisory Commission shall be set up no later than one month after the end of the three-month period provided for in Article 3(5), if the Advisory Commission is set up in accordance with paragraph 1.

Amendment 37

Proposal for a directive

Article 6 – paragraph 4 – subparagraph 2


Text proposed by the Commission	Amendment
The Advisory Commission shall be set up no later than fifty calendar days after the end of the period provided for in Article 4(1) if the Advisory Commission is set up in accordance with paragraph 2.	The Advisory Commission shall be set up no later than one month after the end of the period provided for in Article 4(1) if the Advisory Commission is set up in accordance with paragraph 2.

Amendment 38

Proposal for a directive

Article 7 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

Where the competent authority of a Member State has failed to appoint at least one independent person of standing and its substitute, the taxpayer may request the competent court in that Member State to appoint an independent person and the substitute from the list referred to in Article 8(4).

Amendment 39

Proposal for a directive

Article 7 – paragraph 1 – subparagraph 3

Text proposed by the Commission

Amendment

If the competent authorities of all Member States concerned have failed to do so, the taxpayer may request the competent courts of each Member State to appoint the two independent persons of standing in accordance with the second and third subparagraphs. The thus appointed independent persons of standing shall appoint the chair by drawing lots from the list of the independent persons who qualify as chair according to Article 8(4).

If the competent authorities of all Member States concerned have failed to do so, the taxpayer may request the competent courts of each Member State to appoint the two independent persons of standing in accordance with the second and third subparagraphs. The Commission shall make details of the competent courts of each Member State clearly available in a central information point on its website in all official languages of the Union. The thus appointed independent persons of standing shall appoint the chair by drawing lots from the list of the independent persons who qualify as chair according to Article 8(4).

Amendment 40

Proposal for a directive

Article 7 – paragraph 2


Text proposed by the Commission	Amendment
2. Appointment of the independent persons and their substitutes according to paragraph 1 shall be referred to a competent court of a Member State only after the end of the fifty-day period referred to in Article 6(4) and within two weeks after the end of that period.	2. Appointment of the independent persons and their substitutes according to paragraph 1 shall be referred to a competent court of a Member State only after the end of the one month period referred to in Article 6(4) and within two weeks after the end of that period.

Amendment 41

Proposal for a directive

Article 7 – paragraph 3

Text proposed by the Commission

Amendment

3. The competent court shall adopt a decision according to paragraph 1 and notify it to the applicant. The applicable procedure for the competent court to appoint the independent persons when the Member States fail to appoint them shall be the same as the one applicable under national rules in matters of civil and commercial arbitration when courts appoint arbitrators in cases where parties fail to agree in this respect. The competent court shall also inform the competent authorities having initially failed to set up the Advisory Commission. This Member State shall be entitled to appeal a decision of the court, provided they have the right to do so under their national law. In case of rejection, the applicant shall be entitled to appeal against the decision of the court in accordance with the national procedural rules.

3. The competent court shall adopt a decision according to paragraph 1 and notify it to the applicant within one month. The applicable procedure for the competent court to appoint the independent persons when the Member States fail to appoint them shall be the same as the one applicable under national rules in matters of civil and commercial arbitration when courts appoint arbitrators in cases where parties fail to agree in this respect. The competent court shall also inform the competent authorities having initially failed to set up the Advisory Commission. This Member State shall be entitled to appeal a decision of the court, provided they have the right to do so under their national law. In case of rejection, the applicant shall be entitled to appeal against the decision of the court in accordance with the national procedural rules.

Amendment 42

Proposal for a directive

Article 8 – paragraph 1 – subparagraph 1 – point c

Text proposed by the Commission

Amendment

(c) one or two independent persons of standing who shall be appointed by each competent authority from the list of persons referred to in paragraph 4.

(c) one or two independent persons of standing who shall be appointed by each competent authority from the list of persons referred to in paragraph 4, excluding the persons proposed by their own Member State.

Amendment 43

Proposal for a directive

Article 8 – paragraph 1 – subparagraph 3 a (new)


Text proposed by the Commission	Amendment
	Member States may decide to appoint the representatives as referred to in point (b) on a permanent basis.

Amendment 44

Proposal for a directive

Article 8 – paragraph 3 – point b

Text proposed by the Commission

Amendment

(b) where that person has, or has had, a large holding in or is or has been an employee of or adviser to one or each of the taxpayers;

(b) where that person or a relative of that person has, or has had, a large holding in or is or has been an employee of or adviser to one or each of the taxpayers;

Amendment 45

Proposal for a directive

Article 8 – paragraph 4 – subparagraph 2

Text proposed by the Commission

Amendment

Independent persons of standing must be nationals of a Member State and resident within the Union. They must be competent and independent.

Independent persons of standing must be nationals of a Member State and resident within the Union, preferably officials and civil servants working in the field of tax law or members of an Administrative Court. They must be competent, independent, impartial and of high integrity.

Amendment 46

Proposal for a directive

Article 8 – paragraph 4 – subparagraph 3

Text proposed by the Commission

Amendment

Member States shall notify to the Commission the names of the independent persons of standing they have nominated. Member States may specify in the notification which of the five persons they have nominated can be appointed as a chair. They shall also provide the Commission with complete and up-to-date information regarding their professional and academic background, competence, expertise and conflicts of interest. Member States shall inform the Commission of any changes to the list of independent persons without delay.

Member States shall notify to the Commission the names of the independent persons of standing they have nominated. Member States shall specify in the notification which of the five persons they have nominated can be appointed as a chair. They shall also provide the Commission with complete and up-to-date information regarding their professional and academic background, competence, expertise and conflicts of interest. Such information shall be updated in the event of changes in the curriculum vitae of the independent persons. Member States shall inform the Commission of any changes to the list of independent persons without delay.

Amendment 47

Proposal for a directive

Article 8 – paragraph 4 – subparagraph 3 a (new)

Text proposed by the Commission

Amendment

The Commission shall be empowered to check the information referred to in the third subparagraph concerning the independent persons of standing nominated by Member States. Such checks shall be carried out within three months of receipt of the information from Member State. Where the Commission has doubts as to the independence of the nominated persons, it can request a Member State to provide additional information and, if doubts remain, it may ask the Member State to remove that person from the list and appoint someone else.

Amendment 48

Proposal for a directive

Article 8 – paragraph 4 – subparagraph 3 b (new)

Text proposed by the Commission

Amendment

The list of independent persons of standing shall be publicly available.

Amendment 49

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1. The competent authorities of the Member States concerned may agree to set up an Alternative Dispute Resolution Commission instead of the Advisory Commission to deliver an opinion on the elimination of the double taxation in accordance with Article 13.

Amendment 50

Proposal for a directive

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2. The Alternative Dispute Resolution Commission may differ regarding its composition and form from the Advisory Commission and apply conciliation, mediation, expertise, adjudication or any other dispute resolution processes or techniques to solve the dispute.

2. The Alternative Dispute Resolution Commission may differ regarding its composition and form from the Advisory Commission and apply conciliation, mediation, expertise, adjudication or any other effective and recognised dispute resolution processes or techniques to solve the dispute.

Amendment 51

Proposal for a directive

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4. Articles 11 to 15 shall apply to the Alternative Dispute Resolution Commission, except for the rules on majority set out in Article 13(3). The competent authorities of the Member States concerned can agree on different rules on majority in the Rules of Functioning of the Alternative Dispute Resolution Commission, provided that the independence of the appointed persons to solve the disputes and the absence of any conflict of interests are ensured.

Amendment 52

Proposal for a directive

Article 10 – paragraph 1 – introductory part


Text proposed by the Commission	Amendment
1. Member States shall provide that within the period of fifty calendar days as provided for in Article 6(4), each competent authority of the Member States concerned notifies the taxpayers on the following:	1. Member States shall provide that within the period of one month as provided for in Article 6(4), each competent authority of the Member States concerned notifies the taxpayers on the following:

Amendment 53

Proposal for a directive

Article 10 – paragraph 1 – subparagraph 2


Text proposed by the Commission	Amendment
The date referred to in point (b) of the first subparagraph shall be set no later than 6 months after the setting up of the Advisory Commission or Alternative Dispute Resolution Commission.	The date referred to in point (b) of the first subparagraph shall be set no later than three months after the setting up of the Advisory Commission or Alternative Dispute Resolution Commission.

Amendment 54

Proposal for a directive

Article 10 – paragraph 3


Text proposed by the Commission	Amendment
3. In absence or incompleteness of notification of the Rules of Functioning to the taxpayers, the Member States shall provide that the independent persons and the chair shall complete the Rules of Functioning according to Annex II and send it to the taxpayer within two weeks from the expiry date of the fifty calendar days provided in Article 6(4). When the independent persons and the chair do not agree on the Rules of Functioning or do not notify them to the taxpayers, the taxpayers can refer to the competent court of their state of residence or establishment in order to draw all legal consequences and implement the Rules of Functioning.	3. In absence or incompleteness of notification of the Rules of Functioning to the taxpayers, the Member States shall provide that the independent persons and the chair shall complete the Rules of Functioning according to Annex II and send it to the taxpayer within two weeks from the expiry date of the one-month period provided for in Article 6(4). When the independent persons and the chair do not agree on the Rules of Functioning or do not notify them to the taxpayers, the taxpayers can refer to the competent court of their state of residence or establishment in order to draw all legal consequences and implement the Rules of Functioning.

Amendment 55

Proposal for a directive

Article 12 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. For the purposes of the procedure referred to in Article 6, the taxpayer(s) concerned may provide the Advisory Commission or Alternative Dispute Resolution Commission with any information, evidence or documents that may be relevant for the decision. The taxpayer(s) and the competent authorities of the Member States concerned shall provide any information, evidence or documents upon request by the Advisory Commission or Alternative Dispute Resolution Commission. However, the competent authorities of any such Member State may refuse to provide information to the Advisory Commission in any of the following cases:

1. For the purposes of the procedure referred to in Article 6, the taxpayer(s) concerned shall provide the Advisory Commission or Alternative Dispute Resolution Commission with any information, evidence or documents that may be relevant for the decision. The taxpayer(s) and the competent authorities of the Member States concerned shall provide any information, evidence or documents upon request by the Advisory Commission or Alternative Dispute Resolution Commission. However, the competent authorities of any such Member State may refuse to provide information to the Advisory Commission in any of the following cases:

Amendment 56

Proposal for a directive

Article 13 – paragraph 1


Text proposed by the Commission	Amendment
1. The Advisory Commission or Alternative Dispute Resolution Commission shall deliver its opinion no later than six months after the date it was set up to the competent authorities of the Member States concerned.	1. The Advisory Commission or Alternative Dispute Resolution Commission shall deliver its opinion no later than three months after the date it was set up to the competent authorities of the Member States concerned.

Amendment 57

Proposal for a directive

Article 13 – paragraph 2

Text proposed by the Commission

Amendment

2. The Advisory Commission or Alternative Dispute Resolution Commission when drawing up its opinion shall take into account the applicable national rules and double taxation treaties. In the absence of a double taxation treaty or agreement between the Member States concerned, the Advisory Commission or Alternative Dispute Resolution Commission, when drawing up its opinion, may refer to international practice in matters of taxation such as the latest OECD Model Tax Convention.

Amendment 58

Proposal for a directive

Article 14 – paragraph 1


Text proposed by the Commission	Amendment
1. The competent authorities shall agree within six months of the notification of the opinion of the Advisory Commission or Alternative Dispute Resolution Commission on the elimination of the double taxation.	1. The competent authorities shall agree within three months of the notification of the opinion of the Advisory Commission or Alternative Dispute Resolution Commission on the elimination of the double taxation.

Amendment 59

Proposal for a directive

Article 14 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall provide that the final decision eliminating double taxation is transmitted by each competent authority to the taxpayers within thirty calendar days of its adoption. When he is not notified with the decision within the thirty calendar day period, the taxpayers may appeal in its Member State of residence or establishment in accordance with national rules.

3. Member States shall provide that the final decision eliminating double taxation is transmitted by each competent authority to the taxpayers within thirty calendar days of its adoption. When a taxpayer is not notified of that decision within the thirty-day period, that taxpayer may appeal in its Member State of residence or establishment in accordance with national rules.

Amendment 60

Proposal for a directive

Article 15 – paragraph 2


Text proposed by the Commission	Amendment
2. The submission of the dispute to the mutual agreement procedure or to the dispute resolution procedure shall not prevent a Member State from initiating or continuing judicial proceedings or proceedings for administrative and criminal penalties in relation to the same matters.	2. The submission of the dispute to the mutual agreement procedure or to the dispute resolution procedure shall prevent a Member State from initiating or continuing judicial proceedings or proceedings for administrative and criminal penalties in relation to the same matters.

Justification

It is vital that no sanctions are imposed on the taxpayer in relation to the same matters until a binding decision is taken.

Amendment 61

Proposal for a directive

Article 15 – paragraph 3 – point a


Text proposed by the Commission	Amendment
(a) six months referred to in Article 3(5);	(a) three months referred to in Article 3(5);

Amendment 62

Proposal for a directive

Article 15 – paragraph 3 – point b


Text proposed by the Commission	Amendment
(b) two years referred to in Article 4(1).	(b) one year referred to in Article 4(1).

Amendment 63

Proposal for a directive

Article 15 – paragraph 6

Text proposed by the Commission

Amendment

6. By way of derogation from Article 6, Member States concerned may deny access to the dispute resolution procedure in cases of tax fraud, wilful default and gross negligence.

6. By way of derogation from Article 6, Member States concerned may deny access to the dispute resolution procedure in cases of tax fraud established by a legally valid judgement in criminal or administrative proceedings, wilful default and gross negligence in the same matter.

Amendment 64

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

2. The competent authorities shall publish the final decision referred to in Article 14, subject to consent of each of the taxpayers concerned.

2. The competent authorities shall publish the final decision referred to in Article 14 in its entirety. However, in the event that any of the taxpayers argue that some specific points in the decision are sensitive trade, industrial or professional information, the competent authorities shall consider those arguments and shall publish as much of the decision as possible whilst deleting the sensitive parts. While protecting the constitutional rights of taxpayers, in particular as regards information, the publication of which would clearly and evidently reveal industrial and commercially sensitive information to competitors, the competent authorities shall endeavour to ensure maximum possible transparency through the publication of the final decision.

Amendment 65

Proposal for a directive

Article 16 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

Where a taxpayer concerned does not consent to publishing the final decision in its entirety, the competent authorities shall publish an abstract of the final decision with description of the issue and subject matter, date, tax periods involved, legal basis, industry sector, short description of the final outcome.

deleted

Amendment 66

Proposal for a directive

Article 16 – paragraph 3 – subparagraph 2

Text proposed by the Commission

Amendment

The competent authorities shall send the information to be published in accordance with the first subparagraph to the taxpayers before its publication. Upon request by a taxpayer the competent authorities shall not publish information that concerns any trade, business, industrial or professional secret or trade process, or that is contrary to public policy.

deleted

Amendment 67

Proposal for a directive

Article 16 – paragraph 4

Text proposed by the Commission

Amendment

The Commission shall establish standard forms for the communication of the information referred to in paragraphs 2 and 3 by means of implementing acts. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 18(2).

The Commission shall establish standard forms for the communication of the information referred to in paragraph 2 by means of implementing acts. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 18(2).

Amendment 68

Proposal for a directive

Article 16 – paragraph 5


Text proposed by the Commission	Amendment
5. The competent authorities shall notify the information to be published in accordance with paragraph 3 to the Commission without delay.	5. The competent authorities shall notify the information to be published in accordance with paragraph 3 to the Commission without delay. The Commission shall make that information available in a commonly used data format on a centrally managed webpage.

Amendment 69

Proposal for a directive

Article 17 – paragraph 1

Text proposed by the Commission

Amendment

1. The Commission shall make available online and keep up to date the list of the independent persons of standing referred to in Article 8(4), indicating which of those persons can be appointed as chair. That list shall contain only the names of those persons.

1. The Commission shall make available online in an open data format and keep up to date the list of the independent persons of standing referred to in Article 8(4), indicating which of those persons can be appointed as chair. That list shall contain the names, affiliations and curriculum vitae of those persons and information relating to their qualifications and practical experience, accompanied by declarations regarding any conflicts of interest.

Amendment 70

Proposal for a directive

Article 21 a (new)


Text proposed by the Commission	Amendment
	Article 21a
	Review
	By … [three years after the date of entry into force of this Directive], the Commission shall, on the basis of public consultation and in the light of the discussions with competent authorities, carry out a review on the application and the scope of this Directive. The Commission shall also analyse whether an Advisory Committee of a permanent nature ("Standing Advisory Commission") would further increase the effectiveness and efficiency of the dispute resolution procedures.
	The Commission shall submit a report to the European Parliament and the Council, including, if appropriate, an amending legislative proposal.

Amendment 71

Proposal for a directive

Annex I – heading 5 – point 2 a (new)


Text proposed by the Commission	Amendment
	Gewerbesteuer

Amendment 72

Proposal for a directive

Annex I – heading 12 – point 2 a (new)


Text proposed by the Commission	Amendment
	Imposta regionale sulle attività produttive

[1] Texts adopted, P8_TA(2015)0408.
[2] Texts adopted, P8_TA(2016)0310.
[3] OJ L 225, 20.8.1990, p. 10.

EXPLANATORY STATEMENT

Your rapporteur emphasises that businesses must pay their fair share of tax where they make their profits, but they should pay tax only once. At present, double taxation represents one of the biggest obstacles to the Single Market as it creates barriers for cross-border investments and have a long term detrimental effect on growth. Yet, current dispute resolution procedures available in the EU are not efficient enough. Some taxpayers rather accept double taxation than spending money and time in burdensome procedures that do not guarantee a final binding decision eliminating double taxation. The Commission indicates that there are currently around 900 double taxation disputes in the EU with EUR 10.5 billion at stake.

The rapporteur recalls that already in November 2015, the European Parliament in its resolution considered that the arbitration convention should be replaced by an EU dispute mechanism with more effective mutual agreement procedures. Furthermore, in its July 2016 resolution, the European Parliament stressed that setting of a clear timeframe for dispute resolution procedures is key to enhancing the effectiveness of the systems. To this end, your rapporteur welcomes the Commission proposal which addresses previous calls of the European Parliament.

Your rapporteur proposes the following main improvements to the Commission’s text:

• National authorities do not often have incentives to act quickly and solve double taxation disputes as demonstrated by cases lasting often two years or even longer. Thus, the rapporteur believes that there is a considerable room for improvement in the performance of competent authorities and therefore proposes to accelerate different procedural stages. To this end, Member States should dedicate an adequate level of human, technical and financial resources.

• The rapporteur further emphasises that independent persons appointed to advisory commissions and alternative dispute resolution commissions besides being competent and independent must be also impartial and of high integrity.

• When a taxpayer submits a complaint requesting the resolution of the double taxation, the rapporteur considers that it is vital not to impose sanctions on the taxpayer in relation to the same matters until a binding decision is taken.

• Your rapporteur stresses that the Union has the potential to become a model and a global leader in terms of tax transparency. To create a harmonised and transparent framework of the double taxation dispute resolution mechanisms he proposes that in addition to publishing at least an abstract of the final decisions by competent authorities, the Commission should made available such information also on a centrally managed webpage for the benefit of all taxpayers. The rapporteur believes that this could lead to reducing a total number of future disputes arising from the same issues between same Member States.

• Furthermore, the rapporteur considers that the Commission should review application of this Directive after five years with regard to the possible extension of its scope to cover all double taxation situations (such as indirect taxes, personal income taxes, inheritance taxes, taxation of occupational pensions). At the end of its review, the Commission should present a report to the European Parliament and the Council, including an amending legislative proposal.

• At the current stage, the rapporteur proposes to extend the scope of this Directive to German Gewerbesteuer and Italian Imposta regionale sulle attività produttive which might also cause double taxation cases.

To conclude, your rapporteur would like to underline the importance of a fair and effective corporate taxation system in encouraging businesses to reap full benefits of the Single Market.

PROCEDURE – COMMITTEE RESPONSIBLE

Title	Double Taxation Dispute Resolution Mechanisms in the European Union
References	COM(2016)0686 – C8-0035/2017 – 2016/0338(CNS)
Date of consulting Parliament	16.2.2017
Committee responsible Date announced in plenary	ECON 1.3.2017
Committees asked for opinions Date announced in plenary	IMCO 1.3.2017
Not delivering opinions Date of decision	IMCO 6.12.2016
Rapporteurs Date appointed	Michael Theurer 24.11.2016
Discussed in committee	23.3.2017	3.5.2017
Date adopted	8.6.2017
Result of final vote	+: –: 0:	41 1 1
Members present for the final vote	Burkhard Balz, Hugues Bayet, Udo Bullmann, Esther de Lange, Markus Ferber, Jonás Fernández, Sven Giegold, Roberto Gualtieri, Danuta Maria Hübner, Othmar Karas, Philippe Lamberts, Sander Loones, Bernd Lucke, Olle Ludvigsson, Gabriel Mato, Costas Mavrides, Bernard Monot, Luděk Niedermayer, Stanisław Ożóg, Sirpa Pietikäinen, Pirkko Ruohonen-Lerner, Pedro Silva Pereira, Theodor Dumitru Stolojan, Ramon Tremosa i Balcells, Ernest Urtasun, Marco Valli, Tom Vandenkendelaere, Cora van Nieuwenhuizen, Jakob von Weizsäcker, Marco Zanni
Substitutes present for the final vote	Manuel dos Santos, Bas Eickhout, Eva Kaili, Thomas Mann, Siegfried Mureşan, Romana Tomc, Lieve Wierinck
Substitutes under Rule 200(2) present for the final vote	Jens Geier, Jens Gieseke, Seán Kelly, Arndt Kohn, Isabelle Thomas, Elżbieta Katarzyna Łukacijewska
Date tabled	14.6.2017

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

41	+
ALDE	Ramon Tremosa i Balcells, Lieve Wierinck, Cora van Nieuwenhuizen
ECR	Sander Loones, Bernd Lucke, Stanisław Ożóg, Pirkko Ruohonen-Lerner
EFDD	Marco Valli
PPE	Burkhard Balz, Markus Ferber, Jens Gieseke, Danuta Maria Hübner, Esther de Lange, Othmar Karas, Seán Kelly, Elżbieta Katarzyna Łukacijewska, Thomas Mann, Gabriel Mato, Siegfried Mureşan, Luděk Niedermayer, Sirpa Pietikäinen, Theodor Dumitru Stolojan, Romana Tomc, Tom Vandenkendelaere
S&D	Hugues Bayet, Udo Bullmann, Manuel dos Santos, Jonás Fernández, Jens Geier, Roberto Gualtieri, Eva Kaili, Arndt Kohn, Olle Ludvigsson, Costas Mavrides, Pedro Silva Pereira, Isabelle Thomas, Jakob von Weizsäcker
VERTS/ALE	Bas Eickhout, Sven Giegold, Philippe Lamberts, Ernest Urtasun

1	-
ENF	Marco Zanni

1	0
ENF	Bernard Monot

Key to symbols:

+ : in favour

- : against

0 : abstention

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