Address https://gelex.eu/eli/EU/directive/2016/2258@2016-12-06/en

Contents

1. Preamble
2. 1. Article 1
   2. Article 2
   3. Article 3
   4. Article 4

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 113 and 115 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the European Economic and Social Committee,

Acting in accordance with a special legislative procedure,

Whereas:

(1) Council Directive 2014/107/EU, amending Directive 2011/16/EU, applies as of 1 January 2016 to 27 Member States and as of 1 January 2017 to Austria. That Directive implements the global Standard for Automatic Exchange of Financial Account Information in Tax Matters within the Union thereby ensuring that information on Account Holders of Financial Accounts is reported to the Member State where the Account Holder is resident.

(2) Directive 2011/16/EU stipulates that, where the Account Holder is an intermediary structure, Financial Institutions are to look through that structure, and identify and report on its beneficial owners. That important element in the application of that Directive relies on anti-money-laundering (AML) information obtained pursuant to Directive (EU) 2015/849 of the European Parliament and of the Council for the identification of the beneficial owners.

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

(4) Directive 2011/16/EU encompasses other exchanges of information and forms of administrative cooperation between Member States. Access to AML information held by entities pursuant to Directive (EU) 2015/849 within the framework of administrative cooperation in the field of taxation would ensure that tax authorities are better equipped to fulfil their obligations under Directive 2011/16/EU and to combat tax evasion and fraud more effectively.

(5) It is therefore necessary to ensure that tax authorities are able to access the AML information, procedures, documents and mechanisms for the performance of their duties in monitoring the proper application of Directive 2011/16/EU and for the functioning of all forms of administrative cooperation provided for in that Directive.

(6) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. Where this Directive requires that access to personal data by tax authorities be provided by law, this does not necessarily require an act of parliament, without prejudice to the constitutional order of the Member State concerned. However, such a law should be clear and precise, and its application should be clear and foreseeable to persons subject to it, in accordance with the case-law of the Court of Justice of the European Union and the European Court of Human Rights.

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

(8) The customer due-diligence procedures carried out by Financial Institutions under Directive 2011/16/EU have already started, and the first exchanges of information are to be finalised by September 2017. Therefore, in order to ensure that the effective monitoring of the application of that Directive is not delayed, this amending Directive should enter into force and be transposed as soon as possible and no later than 1 January 2018.

(9) Directive 2011/16/EU should therefore be amended accordingly,

HAS ADOPTED THIS DIRECTIVE:

Article 1

In Article 22 of Directive 2011/16/EU, the following paragraph is inserted:

(1a) For the purpose of the implementation and enforcement of the laws of the Member States giving effect to this Directive and to ensure the functioning of the administrative cooperation it establishes, Member States shall provide by law for access by tax authorities to the mechanisms, procedures, documents and information referred to in Articles 13, 30, 31 and 40 of Directive (EU) 2015/849 of the European Parliament and of the Council.

Article 2

1. Member States shall adopt and publish, by 31 December 2017 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof. They shall apply those measures from 1 January 2018. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force on the date of its adoption.

Article 4

This Directive is addressed to the Member States.

Done at Brussels, 6 December 2016. For the Council The President P. Kažimír

Versions

1. 2016-12-06

Cited by

• Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements Directive · Grade B

  In order to accommodate new initiatives in the field of tax transparency at the level of the Union, Council Directive 2011/16/EU has been the subject of a series of amendments over the last few years. In this context, Council Directive 2014/107/EU introduced the Common Reporting Standard (CRS) developed by the Organisation for Economic Cooperation and Development (OECD) for financial account information within the Union. The CRS provides for the automatic exchange of information on financial accounts held by non-tax residents and establishes a framework for that exchange worldwide. Directive 2

• Opinion of Advocate General Hogan delivered on 24 October 2019 Case C‑458/18 GVC Services (Bulgaria) EOOD v Direktor na Direktsia Obzhalvane i danachno-osiguritelna praktika — Sofia (Request for a preliminary ruling from the Administrativen sad Sofia-grad (Sofia Administrative Court, Bulgaria)) Opinion · Grade B

  It appears, in addition, that Directive 2011/16 — as modified by Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16 as regards mandatory automatic exchange of information in the field of taxation, Council Directive (EU) 2015/2376 of 8 December 2015 amending Directive 2011/16 as regards mandatory automatic exchange of information in the field of taxation, Council Directive (EU) 2016/881 of 25 May 2016 amending Directive 2011/16 as regards mandatory automatic exchange of information in the field of taxation, and Council Directive (EU) 2016/2258 of 6 December 2016 amendin

• P9_TA(2021)0392 Implementation of EU requirements for exchange of tax information European Parliament resolution of 16 September 2021 on the implementation of the EU requirements for exchange of tax information: progress, lessons learnt and obstacles to overcome (2020/2046(INI)) 2022/C 117/13 Notice · Grade B

  having regard to Council Directive (EU) 2016/2258 of 6 December 2016 amending Directive 2011/16/EU as regards access to anti-money-laundering information by tax authorities,

• P9_TA(2023)0460 Further reform of corporate taxation rules European Parliament resolution of 12 December 2023 on further reform of corporate taxation rules (2022/2146(INI)) C/2024/4165 Notice · Grade B

  having regard to Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (the Directive on Administrative Cooperation in the Field of Taxation or DAC 1), Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (DAC 2), Council Directive (EU) 2015/2376 of 8 December 2015 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (DAC 3), Council Directive (EU) 2