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Council Directive 2003/48/EC
of 3 June 2003 on taxation of savings income in the form of interest
payments.
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 94 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the European Economic and Social Committee,
Whereas:
- Articles 56 to 60 of the Treaty guarantee the free movement of capital.
- Savings income in the form of interest payments from debt claims
constitutes taxable income for residents of all Member States.
- By virtue of Article 58(1) of the Treaty Member States have the
right to apply the relevant provisions of their tax law which distinguish
between taxpayers who are not in the same situation with regard to
their place of residence or with regard to the place where their capital
is invested, and to take all requisite measures to prevent infringements
of national law and regulations, in particular in the field of taxation.
- In accordance with Article 58(3) of the Treaty, the provisions of
Member States' tax law designed to counter abuse or fraud should not
constitute a means of arbitrary discrimination or a disguised restriction
on the free movement of capital and payments as established by Article
56 of the Treaty.
- In the absence of any coordination of national tax systems for taxation
of savings income in the form of interest payments, particularly as
far as the treatment of interest received by non-residents is concerned,
residents of Member States are currently often able to avoid any form
of taxation in their Member State of residence on interest they receive
in another Member State.
- This situation is creating distortions in the capital movements
between Member States, which are incompatible with the internal market.
- This Directive builds on the consensus reached at the Santa Maria
da Feira European Council of 19 and 20 June 2000 and the subsequent
Ecofin Council meetings of 26 and 27 November 2000, 13 December 2001
and 21 January 2003.
- The ultimate aim of this Directive is to enable savings income in
the form of interest payments made in one Member State to beneficial
owners who are individuals resident in another Member State to be
made subject to effective taxation in accordance with the laws of
the latter Member State.
- The aim of this Directive can best be achieved by targeting interest
payments made or secured by economic operators established in the
Member States to or for the benefit of beneficial owners who are individuals
resident in another Member State.
- Since the objective of this Directive cannot be sufficiently achieved
by the Member States, because of the lack of any coordination of national
systems for the taxation of savings income, and can therefore be better
achieved at Community level, the Community may adopt measures in accordance
with the principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality, as set
out in that Article, this Directive confines itself to the minimum
required in order to achieve those objectives and does not go beyond
what is necessary for that purpose.
- The paying agent is the economic operator who pays interest to or
secures the payment of interest for the immediate benefit of the beneficial
owner.
- In defining the notion of interest payment and the paying agent
mechanism, reference should be made, where appropriate, to Council
Directive 85/611/EEC of 20 December 1985 on the coordination of laws,
regulations and administrative provisions relating to undertakings
for collective investment in transferable securities (UCITS).
- The scope of this Directive should be limited to taxation of savings
income in the form of interest payments on debt claims, to the exclusion,
inter alia, of the issues relating to the taxation of pension and
insurance benefits.
- The ultimate aim of bringing about effective taxation of interest
payments in the beneficial owner's Member State of residence for tax
purposes can be achieved through the exchange of information concerning
interest payments between Member States.
- Council Directive 77/799/EEC of 19 December 1977 concerning mutual
assistance by the competent authorities of the Member States in the
field of direct and indirect taxation already provides a basis for
Member States to exchange information for tax purposes on the income
covered by this Directive. It should continue to apply to such exchanges
of information in addition to this Directive insofar as this Directive
does not derogate from it.
- The automatic exchange of information between Member States concerning
interest payments covered by this Directive makes possible the effective
taxation of those payments in the beneficial owner's Member State
of residence for tax purposes in accordance with the national laws
of that State. It is therefore necessary to stipulate that Member
States which exchange information pursuant to this Directive should
not be permitted to rely on the limits to the exchange of information
as set out in Article 8 of Directive 77/799/EEC.
- In view of structural differences, Austria, Belgium and Luxembourg
cannot apply the automatic exchange of information at the same time
as the other Member States. During a transitional period, given that
a withholding tax can ensure a minimum level of effective taxation,
especially at a rate increasing progressively to 35 %, these three
Member States should apply a withholding tax to the savings income
covered by this Directive.
- In order to avoid differences in treatment, Austria, Belgium and
Luxembourg should not be obliged to apply automatic exchange of information
before the Swiss Confederation, the Principality of Andorra, the Principality
of Liechtenstein, the Principality of Monaco and the Republic of San
Marino ensure effective exchange of information on request concerning
payments of interest.
- Those Member States should transfer the greater part of their revenue
of this withholding tax to the Member State of residence of the beneficial
owner of the interest.
- Those Member States should provide for a procedure allowing beneficial
owners resident for tax purposes in other Member States to avoid the
imposition of this withholding tax by authorising their paying agent
to report the interest payments or by presenting a certificate issued
by the competent authority of their Member State of residence for
tax purposes.
- The Member State of residence for tax purposes of the beneficial
owner should ensure the elimination of any double taxation of the
interest payments which might result from the imposition of this withholding
tax in accordance with the procedures laid down in this Directive.
It should do so by crediting this withholding tax up to the amount
of tax due in its territory and by reimbursing to the beneficial owner
any excess amount of tax withheld. It may, however, instead of applying
this tax credit mechanism, grant a refund of the withholding tax.
- In order to avoid market disruption, this Directive should, during
the transitional period, not apply to interest payments on certain
negotiable debt securities.
- This Directive should not preclude Member States from levying other
types of withholding tax than that referred to in this Directive on
interest arising in their territories.
- So long as the United States of America, Switzerland, Andorra, Liechtenstein,
Monaco, San Marino and the relevant dependent or associated territories
of the Member States do not all apply measures equivalent to, or the
same as, those provided for by this Directive, capital flight towards
these countries and territories could imperil the attainment of its
objectives. Therefore, it is necessary for the Directive to apply
from the same date as that on which all these countries and territories
apply such measures.
- The Commission should report every three years on the operation
of this Directive and propose to the Council any amendments that prove
necessary in order better to ensure effective taxation of savings
income and to remove undesirable distortions of competition.
- This Directive respects the fundamental rights and principles which
are recognised, in particular, by the Charter of Fundamental Rights
of the European Union,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
INTRODUCTORY PROVISIONS
Article 1
Aim
- The ultimate aim of the Directive is to enable savings income in
the form of interest payments made in one Member State to beneficial
owners who are individuals resident for tax purposes in another Member
State to be made subject to effective taxation in accordance with
the laws of the latter Member State.
- Member States shall take the necessary measures to ensure that the
tasks necessary for the implementation of this Directive are carried
out by paying agents established within their territory, irrespective
of the place of establishment of the debtor of the debt claim producing
the interest.
Article 2
Definition of beneficial owner
- For the purposes of this Directive, 'beneficial
owner' means any individual who receives an interest payment or any
individual for whom an interest payment is secured, unless he provides
evidence that it was not received or secured for his own benefit,
that is to say that:
(a) he acts as a paying agent within the meaning of Article 4(1);
or
(b) he acts on behalf of a legal person, an entity which is taxed
on its profits under the general arrangements for business taxation,
an UCITS authorised in accordance with Directive 85/611/EEC or an
entity referred to in Article 4(2) of this Directive and, in the last
mentioned case, discloses the name and address of that entity to the
economic operator making the interest payment and the latter communicates
such information to the competent authority of its Member State of
establishment, or
(c) he acts on behalf of another individual who is the beneficial
owner and discloses to the paying agent the identity of that beneficial
owner in accordance with Article 3(2).
- Where a paying agent has information suggesting
that the individual who receives an interest payment or for whom an
interest payment is secured may not be the beneficial owner, and where
neither paragraph 1(a) nor 1(b) applies to that individual, it shall
take reasonable steps to establish the identity of the beneficial
owner in accordance with Article 3(2). If the paying agent is unable
to identify the beneficial owner, it shall treat the individual in
question as the beneficial owner.
Article 3
Identity and residence of beneficial owners
- Each Member State shall, within its territory, adopt and ensure
the application of the procedures necessary to allow the paying agent
to identify the beneficial owners and their residence for the purposes
of Articles 8 to 12.
Such procedures shall comply with the minimum standards established
in paragraphs 2 and 3.
- The paying agent shall establish the identity
of the beneficial owner on the basis of minimum standards which vary
according to when relations between the paying agent and the recipient
of the interest are entered into, as follows:
(a) for contractual relations entered into before 1 January 2004,
the paying agent shall establish the identity of the beneficial
owner, consisting of his name and address, by using the information
at its disposal, in particular pursuant to the regulations in force
in its State of establishment and to Council Directive 91/308/EEC
of 10 June 1991 on prevention of the use of the financial system
for the purpose of money laundering;
(b) for contractual relations entered into, or transactions carried
out in the absence of contractual relations, on or after 1 January
2004, the paying agent shall establish the identity of the beneficial
owner, consisting of the name, address and, if there is one, the
tax identification number allocated by the Member State of residence
for tax purposes. These details shall be established on the basis
of the passport or of the official identity card presented by the
beneficial owner. If it does not appear on that passport or on that
official identity card, the address shall be established on the
basis of any other documentary proof of identity presented by the
beneficial owner. If the tax identification number is not mentioned
on the passport, on the official identity card or any other documentary
proof of identity, including, possibly, the certificate of residence
for tax purposes, presented by the beneficial owner, the identity
shall be supplemented by a reference to the latter's date and place
of birth established on the basis of his passport or official identification
card.
-
The paying agent shall establish the residence
of the beneficial owner on the basis of minimum standards which
vary according to when relations between the paying agent and the
recipient of the interest are entered into. Subject to the conditions
set out below, residence shall be considered to be situated in the
country where the beneficial owner has his permanent address:
(a) for contractual relations entered into before 1 January 2004,
the paying agent shall establish the residence of the beneficial
owner by using the information at its disposal, in particular pursuant
to the regulations in force in its State of establishment and to
Directive 91/308/EEC;
(b) for contractual relations entered into, or transactions carried
out in the absence of contractual relations, on or after 1 January
2004, the paying agent shall establish the residence of the beneficial
owner on the basis of the address mentioned on the passport, on
the official identity card or, if necessary, on the basis of any
documentary proof of identity presented by the beneficial owner
and according to the following procedure: for individuals presenting
a passport or official identity card issued by a Member State who
declare themselves to be resident in a third country, residence
shall be established by means of a tax residence certificate issued
by the competent authority of the third country in which the individual
claims to be resident. Failing the presentation of such a certificate,
the Member State which issued the passport or other official identity
document shall be considered to be the country of residence.
Article 4
Definition of paying agent
- For the purposes of this Directive, 'paying agent' means any economic
operator who pays interest to or secures the payment of interest for
the immediate benefit of the beneficial owner, whether the operator
is the debtor of the debt claim which produces the interest or the
operator charged by the debtor or the beneficial owner with paying
interest or securing the payment of interest.
- Any entity established in a Member State
to which interest is paid or for which interest is secured for the
benefit of the beneficial owner shall also be considered a paying
agent upon such payment or securing of such payment. This provision
shall not apply if the economic operator has reason to believe, on
the basis of official evidence produced by that entity, that:
(a) it is a legal person, with the exception of those legal persons
referred to in paragraph 5; or
(b) its profits are taxed under the general arrangements for business
taxation; or
(c) it is an UCITS recognised in accordance with Directive 85/611/EEC.
An economic operator paying interest to, or securing interest for,
such an entity established in another Member State which is considered
a paying agent under this paragraph shall communicate the name and
address of the entity and the total amount of interest paid to,
or secured for, the entity to the competent authority of its Member
State of establishment, which shall pass this information on to
the competent authority of the Member State where the entity is
established.
-
The entity referred to in paragraph 2 shall,
however, have the option of being treated for the purposes of this
Directive as an UCITS as referred to in 2(c). The exercise of this
option shall require a certificate to be issued by the Member State
in which the entity is established and presented to the economic
operator by that entity.
Member States shall lay down the detailed rules for this option
for entities established in their territory.
-
Where the economic operator and the entity
referred to in paragraph 2 are established in the same Member State,
that Member State shall take the necessary measures to ensure that
the entity complies with the provisions of this Directive when it
acts as a paying agent.
-
The legal persons exempted from paragraph
2(a) are:
(a) in Finland: avoin yhtiö (Ay) and kommandiittiyhtiö (Ky)/öppet
bolag and kommanditbolag;
(b) in Sweden: handelsbolag (HB) and kommanditbolag (KB).
Article 5
Definition of competent authority
For the purposes of this Directive, 'competent authority' means:
(a) for Member States, any of the authorities notified by the Member
States to the Commission;
(b) for third countries, the competent authority for the purposes
of bilateral or multilateral tax conventions or, failing that, such
other authority as is competent to issue certificates of residence
for tax purposes.
Article 6
Definition of interest payment
- For the purposes of this Directive, 'interest
payment' means:
(a) interest paid or credited to an account,
relating to debt claims of every kind, whether or not secured by
mortgage and whether or not carrying a right to participate in the
debtor's profits, and, in particular, income from government securities
and income from bonds or debentures, including premiums and prizes
attaching to such securities, bonds or debentures; penalty charges
for late payments shall not be regarded as interest payments;
(b) interest accrued or capitalised at
the sale, refund or redemption of the debt claims referred to in
(a);
(c) income deriving from interest payments either directly or through
an entity referred to in Article 4(2), distributed by:
(i) an UCITS authorised in accordance with Directive 85/611/EEC,
(ii) entities which qualify for the option under Article 4(3),
(iii) undertakings for collective investment established outside
the territory referred to in Article 7;
(d) income realised upon the sale, refund
or redemption of shares or units in the following undertakings and
entities, if they invest directly or indirectly, via other undertakings
for collective investment or entities referred to below, more than
40 % of their assets in debt claims as referred to in (a):
(i) an UCITS authorised in accordance with Directive 85/611/EEC,
(ii) entities which qualify for the option under Article 4(3),
(iii) undertakings for collective investment established outside
the territory referred to in Article 7.
However, Member States shall have the option of including income
mentioned under (d) in the definition of interest only to the extent
that such income corresponds to gains directly or indirectly deriving
from interest payments within the meaning of (a) and (b).
-
As regards paragraph 1(c) and (d), when a paying
agent has no information concerning the proportion of the income
which derives from interest payments, the total amount of the income
shall be considered an interest payment.
-
As regards paragraph 1(d), when a paying agent
has no information concerning the percentage of the assets invested
in debt claims or in shares or units as defined in that paragraph,
that percentage shall be considered to be above 40 %. Where he cannot
determine the amount of income realised by the beneficial owner,
the income shall be deemed to correspond to the proceeds of the
sale, refund or redemption of the shares or units.
-
When interest, as defined in paragraph 1,
is paid to or credited to an account held by an entity referred
to in Article 4(2), such entity not having qualified for the option
under Article 4(3), it shall be considered an interest payment by
such entity.
-
As regards paragraph 1(b) and (d), Member
States shall have the option of requiring paying agents in their
territory to annualise the interest over a period of time which
may not exceed one year, and treating such annualised interest as
an interest payment even if no sale, redemption or refund occurs
during that period.
- By way of derogation from paragraphs 1(c)
and (d), Member States shall have the option of excluding from the
definition of interest payment any income referred to in those provisions
from undertakings or entities established within their territory where
the investment in debt claims referred to in paragraph 1(a) of such
entities has not exceeded 15 % of their assets. Likewise, by way of
derogation from paragraph 4, Member States shall have the option of
excluding from the definition of interest payment in paragraph 1 interest
paid or credited to an account of an entity referred to in Article
4(2) which has not qualified for the option under Article 4(3) and
is established within their territory, where the investment of such
an entity in debt claims referred to in paragraph 1(a) has not exceeded
15 % of its assets.
The exercise of such option by a Member State shall be binding on
other Member States.
-
The percentage referred to in paragraph
1(d) and paragraph 3 shall from 1 January 2011 be 25 %.
-
The percentages referred to in paragraph
1(d) and in paragraph 6 shall be determined by reference to the
investment policy as laid down in the fund rules or instruments
of incorporation of the undertakings or entities concerned and,
failing which, by reference to the actual composition of the assets
of the undertakings or entities concerned.
Article 7
Territorial scope
This Directive shall apply to interest paid by a paying agent established
within the territory to which the Treaty applies by virtue of Article
299 thereof.
CHAPTER II
EXCHANGE OF INFORMATION
Article 8
Information reporting by the paying agent
- Where the beneficial owner is resident in
a Member State other than that in which the paying agent is established,
the minimum amount of information to be reported by the paying agent
to the competent authority of its Member State of establishment shall
consist of:
(a) the identity and residence of the beneficial owner established
in accordance with Article 3;
(b) the name and address of the paying agent;
(c) the account number of the beneficial owner or, where there
is none, identification of the debt claim giving rise to the interest;
(d) information concerning the interest payment in accordance with
paragraph 2.
-
The minimum amount of information concerning
interest payment to be reported by the paying agent shall distinguish
between the following categories of interest and indicate:
(a) in the case of an interest payment
within the meaning of Article 6(1)(a): the amount of interest paid
or credited;
(b) in the case of an interest payment within
the meaning of Article 6(1)(b) or (d): either the amount of interest
or income referred to in those paragraphs or the full amount of
the proceeds from the sale, redemption or refund;
(c) in the case of an interest payment within the meaning of Article
6(1)(c): either the amount of income referred to in that paragraph
or the full amount of the distribution;
(d) in the case of an interest payment within the meaning of Article
6(4): the amount of interest attributable to each of the members
of the entity referred to in Article 4(2) who meet the conditions
of Articles 1(1) and 2(1);
(e) where a Member State exercises the option under Article 6(5):
the amount of annualised interest.
However, Member States may restrict the minimum amount of information
concerning interest payment to be reported by the paying agent to
the total amount of interest or income and to the total amount of
the proceeds from sale, redemption or refund.
Article 9
Automatic exchange of information
- The competent authority of the Member State
of the paying agent shall communicate the information referred to
in Article 8 to the competent authority of the Member State of residence
of the beneficial owner.
- The communication of information shall be
automatic and shall take place at least once a year, within six months
following the end of the tax year of the Member State of the paying
agent, for all interest payments made during that year.
- The provisions of Directive 77/799/EEC shall
apply to the exchange of information under this Directive, provided
that the provisions of this Directive do not derogate therefrom. However,
Article 8 of Directive 77/799/EEC shall not apply to the information
to be provided pursuant to this chapter.
CHAPTER III
TRANSITIONAL PROVISIONS
Article 10
Transitional period
- During a transitional period starting on
the date referred to in Article 17(2) and (3) and subject to Article
13(1), Belgium, Luxembourg and Austria shall not be required to apply
the provisions of Chapter II.
They shall, however, receive information from the other Member
States in accordance with Chapter II.
During the transitional period, the aim of this Directive shall
be to ensure minimum effective taxation of savings in the form of
interest payments made in one Member State to beneficial owners
who are individuals resident for tax purposes in another Member
State.
-
The transitional period shall end at the
end of the first full fiscal year following the later of the following
dates:
- the date of entry into force of an agreement between the European
Community, following a unanimous decision of the Council, and the
last of the Swiss Confederation, the Principality of Liechtenstein,
the Republic of San Marino, the Principality of Monaco and the Principality
of Andorra, providing for the exchange of information upon request
as defined in the OECD Model Agreement on Exchange of Information
on Tax Matters released on 18 April 2002 (hereinafter the 'OECD
Model Agreement') with respect to interest payments, as defined
in this Directive, made by paying agents established within their
respective territories to beneficial owners resident in the territory
to which the Directive applies, in addition to the simultaneous
application by those same countries of a withholding tax on such
payments at the rate defined for the corresponding periods referred
to in Article 11(1),
- the date on which the Council agrees by unanimity that the United
States of America is committed to exchange of information upon request
as defined in the OECD Model Agreement with respect to interest
payments, as defined in this directive, made by paying agents established
within its territory to beneficial owners resident in the territory
to which the Directive applies.
-
At the end of the transitional period,
Belgium, Luxembourg and Austria shall be required to apply the provisions
of Chapter II and they shall cease to apply the withholding tax
and the revenue sharing provided for in Articles 11 and 12. If,
during the transitional period, Belgium, Luxembourg or Austria elects
to apply the provisions of Chapter II, it shall no longer apply
the withholding tax and the revenue sharing provided for in Articles
11 and 12.
Article 11
Withholding tax
- During the transitional period referred
to in Article 10, where the beneficial owner is resident in a Member
State other than that in which the paying agent is established, Belgium,
Luxembourg and Austria shall levy a withholding tax at a rate of 15
% during the first three years of the transitional period, 20 % for
the subsequent three years and 35 % thereafter.
- The paying agent shall levy withholding tax as
follows:
(a) in the case of an interest payment within the meaning of Article
6(1)(a): on the amount of interest paid or credited;
(b) in the case of an interest payment within the meaning of Article
6(1)(b) or (d): on the amount of interest or income referred to in
those paragraphs or by a levy of equivalent effect to be borne by
the recipient on the full amount of the proceeds of the sale, redemption
or refund;
(c) in the case of an interest payment within the meaning of Article
6(1)(c): on the amount of income referred to in that paragraph;
(d) in the case of an interest payment within the meaning of Article
6(4): on the amount of interest attributable to each of the members
of the entity referred to in Article 4(2) who meet the conditions
of Articles 1(1) and 2(1);
(e) where a Member State exercises the option under Article 6(5):
on the amount of annualised interest.
- For the purposes of points (a) and (b) of
paragraph 2, withholding tax shall be levied pro rata to the period
of holding of the debt claim by the beneficial owner. When the paying
agent is unable to determine the period of holding on the basis of
information in its possession, it shall treat the beneficial owner
as having held the debt claim throughout its period of existence unless
he provides evidence of the date of acquisition.
- The imposition of withholding tax by the
Member State of the paying agent shall not preclude the Member State
of residence for tax purposes of the beneficial owner from taxing
the income in accordance with its national law, subject to compliance
with the Treaty.
- During the transitional period, Member States
levying withholding tax may provide that an economic operator paying
interest to, or securing interest for, an entity referred to in Article
4(2) established in another Member State shall be considered the paying
agent in place of the entity and shall levy the withholding tax on
that interest, unless the entity has formally agreed to its name,
address and the total amount of interest paid to it or secured for
it being communicated in accordance with the last subparagraph of
Article 4(2).
Article 12
Revenue sharing
- Member States levying withholding tax in accordance with Article
11(1) shall retain 25 % of their revenue and transfer 75 % of the
revenue to the Member State of residence of the beneficial owner of
the interest.
- Member States levying withholding tax in accordance with Article
11(5) shall retain 25 % of the revenue and transfer 75 % to the other
Member States proportionate to the transfers carried out pursuant
to paragraph 1 of this Article.
- Such transfers shall take place at the latest within a period of
six months following the end of the tax year of the Member State of
the paying agent in the case of paragraph 1, or that of the Member
State of the economic operator in the case of paragraph 2.
- Member States levying withholding tax shall take the necessary measures
to ensure the proper functioning of the revenue-sharing system.
Article 13
Exceptions to the withholding tax procedure
- Member States levying withholding tax in accordance
with Article 11 shall provide for one or both of the following procedures
in order to ensure that the beneficial owners may request that no
tax be withheld:
(a) a procedure which allows the beneficial owner expressly to
authorise the paying agent to report information in accordance with
Chapter II, such authorisation covering all interest paid to the
beneficial owner by that paying agent; in such cases, the provisions
of Article 9 shall apply;
(b) a procedure which ensures that withholding tax shall not be
levied where the beneficial owner presents to his paying agent a
certificate drawn up in his name by the competent authority of his
Member State of residence for tax purposes in accordance with paragraph
2.
-
At the request of the beneficial owner,
the competent authority of his Member State of residence for tax
purposes shall issue a certificate indicating:
(a) the name, address and tax or other identification number or,
failing such, the date and place of birth of the beneficial owner;
(b) the name and address of the paying agent;
(c) the account number of the beneficial owner or, where there is
none, the identification of the security.
Such certificate shall be valid for a period not exceeding three
years. It shall be issued to any beneficial owner who requests it,
within two months following such request.
Article 14
Elimination of double taxation
- The Member State of residence for tax purposes
of the beneficial owner shall ensure the elimination of any double
taxation which might result from the imposition of the withholding
tax referred to in Article 11, in accordance with the provisions of
paragraphs 2 and 3.
- If interest received by a beneficial owner
has been subject to withholding tax in the Member State of the paying
agent, the Member State of residence for tax purposes of the beneficial
owner shall grant him a tax credit equal to the amount of the tax
withheld in accordance with its national law. Where this amount exceeds
the amount of tax due in accordance with its national law, the Member
State of residence for tax purposes shall repay the excess amount
of tax withheld to the beneficial owner.
- If, in addition to the withholding tax referred
to in Article 11, interest received by a beneficial owner has been
subject to any other type of withholding tax and the Member State
of residence for tax purposes grants a tax credit for such withholding
tax in accordance with its national law or double taxation conventions,
such other withholding tax shall be credited before the procedure
in paragraph 2 is applied.
- The Member State of residence for tax purposes
of the beneficial owner may replace the tax credit mechanism referred
to in paragraphs 2 and 3 by a refund of the withholding tax referred
to in Article 11.
Article 15
Negotiable debt securities
- During the transitional period referred
to in Article 10, but until 31 December 2010 at the latest, domestic
and international bonds and other negotiable debt securities which
have been first issued before 1 March 2001 or for which the original
issuing prospectuses have been approved before that date by the competent
authorities within the meaning of Council Directive 80/390/EEC or
by the responsible authorities in third countries shall not be considered
as debt claims within the meaning of Article 6(1)(a), provided that
no further issues of such negotiable debt securities are made on or
after 1 March 2002. However, should the transitional period referred
to in Article 10 continue beyond 31 December 2010, the provisions
of this Article shall only continue to apply in respect of such negotiable
debt securities:
- which contain gross-up and early redemption clauses and
- where the paying agent as defined in Article 4 is established
in a Member State applying the withholding tax referred to in Article
11 and that paying agent pays interest to, or secures the payment
of interest for the immediate benefit of, a beneficial owner resident
in another Member State.
If a further issue is made on or after 1 March 2002 of an aforementioned
negotiable debt security issued by a Government or a related entity
acting as a public authority or whose role is recognised by an international
treaty, as defined in the Annex, the entire issue of such security,
consisting of the original issue and any further issue, shall be
considered a debt claim within the meaning of Article 6(1)(a).
If a further issue is made on or after 1 March 2002 of an aforementioned
negotiable debt security issued by any other issuer not covered
by the second subparagraph, such further issue shall be considered
a debt claim within the meaning of Article 6(1)(a).
-
Nothing in this Article shall prevent Member
States from taxing the income from the negotiable debt securities
referred to in paragraph 1 in accordance with their national laws.
CHAPTER IV
MISCELLANEOUS AND FINAL PROVISIONS
Article 16
Other withholding taxes
This Directive shall not preclude Member States from levying other
types of withholding tax than that referred to in Article 11 in accordance
with their national laws or double-taxation conventions.
Article 17
Transposition
- Before 1 January 2004 Member States shall
adopt and publish the laws, regulations and administrative provisions
necessary to comply with this Directive. They shall forthwith inform
the Commission thereof.
- Member States shall apply these provisions
from 1 January 2005 provided that:
(i) the Swiss Confederation, the Principality of Liechtenstein,
the Republic of San Marino, the Principality of Monaco and the Principality
of Andorra apply from that same date measures equivalent to those
contained in this Directive, in accordance with agreements entered
into by them with the European Community, following unanimous decisions
of the Council;
(ii) all agreements or other arrangements are in place, which provide
that all the relevant dependent or associated territories (the Channel
Islands, the Isle of Man and the dependent or associated territories
in the Caribbean) apply from that same date automatic exchange of
information in the same manner as is provided for in Chapter II
of this Directive, (or, during the transitional period defined in
Article 10, apply a withholding tax on the same terms as are contained
in Articles 11 and 12).
-
The Council shall decide, by unanimity,
at least six months before 1 January 2005, whether the condition
set out in paragraph 2 will be met, having regard to the dates of
entry into force of the relevant measures in the third countries
and dependent or associated territories concerned. If the Council
does not decide that the condition will be met, it shall, acting
unanimously on a proposal by the Commission, adopt a new date for
the purposes of paragraph 2.
-
When Member States adopt the provisions
necessary to comply with this Directive, they shall contain a reference
to this Directive or be accompanied by such a reference on the occasion
of their official publication. Member States shall determine how
such reference is to be made.
-
Member States shall forthwith inform the Commission thereof and
communicate to the Commission the main provisions of national law
which they adopt in the field covered by this Directive and a correlation
table between this Directive and the national provisions adopted.
Article 18
Review
The Commission shall report to the Council every three years on the
operation of this Directive. On the basis of these reports, the Commission
shall, where appropriate, propose to the Council any amendments to
the Directive that prove necessary in order better to ensure effective
taxation of savings income and to remove undesirable distortions of
competition.
Article 19
Entry into force
This Directive shall enter into force on the 20th day following that
of its publication in the Official Journal of the European Union.
Article 20
Addressees
This Directive is addressed to the Member States.
Done at Luxembourg, 3 June 2003.
For the Council
The President
N. CHRISTODOULAKIS
ANNEX
LIST OF RELATED ENTITIES REFERRED TO IN ARTICLE 15
For the purposes of Article 15, the following entities will be considered
to be a 'related entity acting as a public authority or whose role
is recognised by an international treaty':
- entities within the European Union:
| Belgium |
Vlaams Gewest (Flemish Region) |
| |
Région wallonne (Walloon Region) |
| |
Région bruxelloise/Brussels Gewest (Brussels Region) |
| |
Communauté française (French Community) |
| |
Vlaamse Gemeenschap (Flemish Community) |
| |
Deutschsprachige Gemeinschaft (German-speaking
Community) |
| |
|
| Spain |
Xunta de Galicia (Regional Executive of Galicia) |
| |
Junta de Andalucía (Regional Executive of Andalusia) |
| |
Junta de Extremadura (Regional Executive of Extremadura) |
| |
Junta de Castilla-La Mancha (Regional Executive
of Castilla-La Mancha) |
| |
Junta de Castilla-León (Regional Executive of
Castilla-León) |
|
| Gobierno Foral de Navarra (Regional Government
of Navarre) |
| |
Govern de les Illes Balears (Government of the
Balearic Islands) |
| |
Generalitat de Catalunya (Autonomous Government
of Catalonia) |
| |
Generalitat de Valencia (Autonomous Government
of Valencia) |
| |
Diputación General de Aragón (Regional Council
of Aragon) |
| |
Gobierno de las Islas Canarias (Government of
the Canary Islands) |
| |
Gobierno de Murcia (Government of Murcia) |
| |
Gobierno de Madrid (Government of Madrid) |
| |
Gobierno de la Comunidad Autónoma del País Vasco/Euzkadi
(Government of the Autonomous Community of the Basque Country) |
| |
Diputación Foral de Guipúzcoa (Regional Council
of Guipúzcoa) |
| |
Diputación Foral de Vizcaya/Bizkaia (Regional
Council of Vizcaya) |
| |
Diputación Foral de Alava (Regional Council of
Alava) |
| |
Ayuntamiento de Madrid (City Council of Madrid) |
| |
Ayuntamiento de Barcelona (City Council of Barcelona) |
| |
Cabildo Insular de Gran Canaria (Island Council
of Gran Canaria) |
| |
Cabildo Insular de Tenerife (Island Council of
Tenerife) |
| |
Instituto de Crédito Oficial (Public Credit Institution) |
| |
Instituto Catalán de Finanzas (Finance Institution
of Catalonia) |
| |
Instituto Valenciano de Finanzas (Finance Institution
of Valencia) |
| |
|
| Greece |
National Telecommunications Organisation |
| |
National Railways Organisation |
| |
Public Electricity Company |
| |
|
| France |
La Caisse d'amortissement de la dette sociale
(CADES)(Social Debt |
| |
Redemption Fund) |
| |
L'Agence française de développement (AFD) (French
Development Agency) |
| |
Réseau Ferré de France (RFF) (French Rail Network) |
| |
Caisse Nationale des Autoroutes (CNA) (National
Motorways Fund) |
| |
Assistance publique Hôpitaux de Paris (APHP) (Paris
Hospitals Public Assistance) |
| |
Charbonnages de France (CDF) (French Coal Board) |
| |
Entreprise minière et chimique (EMC) (Mining and
Chemicals Company) |
| |
|
| Italy |
Regions |
| |
Provinces |
| |
Municipalities |
| |
Cassa Depositi e Prestiti (Deposits and Loans
Fund) |
| |
|
| Portugal |
Região Autónoma da Madeira (Autonomous Region
of Madeira) |
| |
Região Autónoma dos Açores (Autonomous Region
of Azores) |
| |
Municipalities |
- international entities:
European Bank for Reconstruction and Development
European Investment Bank
Asian Development Bank
African Development Bank
World Bank/IBRD/IMF
International Finance Corporation
Inter-American Development Bank
Council of Europe Soc. Dev. Fund
Euratom
European Community
Corporación Andina de Fomento (CAF) (Andean Development Corporation)
Eurofima
European Coal & Steel Community
Nordic Investment Bank
Caribbean Development Bank
The provisions of Article 15 are without prejudice to any international
obligations that Member States may have entered into with respect
to the abovementioned international entities.
- entities in third countries:
Those entities that meet the following criteria:
1. the entity is clearly considered to be a public entity according
to the national criteria;
2. such public entity is a non-market producer which administers and
finances a group of activities, principally providing non-market goods
and services, intended for the benefit of the community and which
are effectively controlled by general government;
3. such public entity is a large and regular issuer of debt;
4. the State concerned is able to guarantee that such public entity
will not exercise early redemption in the event of gross-up clauses.
|