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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:
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Belgium
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Vlaams
Gewest (Flemish Region)
|
|
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Région
wallonne (Walloon Region)
|
|
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Région
bruxelloise/Brussels Gewest (Brussels Region)
|
|
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Communauté
française (French Community)
|
|
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Vlaamse
Gemeenschap (Flemish Community)
|
|
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Deutschsprachige Gemeinschaft (German-speaking Community)
|
|
|
|
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Spain
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Xunta de
Galicia (Regional Executive of Galicia)
|
|
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Junta de
Andalucía (Regional Executive of Andalusia)
|
|
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Junta de
Extremadura (Regional Executive of Extremadura)
|
|
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Junta de
Castilla-La Mancha (Regional Executive of Castilla-La Mancha)
|
|
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Junta de
Castilla-León (Regional Executive of Castilla-León)
|
|
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Gobierno
Foral de Navarra (Regional Government of Navarre)
|
|
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Govern
de les Illes Balears (Government of the Balearic Islands)
|
|
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Generalitat
de Catalunya (Autonomous Government of Catalonia)
|
|
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Generalitat
de Valencia (Autonomous Government of Valencia)
|
|
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Diputación
General de Aragón (Regional Council of Aragon)
|
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Gobierno
de las Islas Canarias (Government of the Canary Islands)
|
|
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Gobierno
de Murcia (Government of Murcia)
|
|
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Gobierno
de Madrid (Government of Madrid)
|
|
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Gobierno
de la Comunidad Autónoma del País Vasco/Euzkadi (Government of the
Autonomous Community of the Basque Country)
|
|
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Diputación
Foral de Guipúzcoa (Regional Council of Guipúzcoa)
|
|
|
Diputación
Foral de Vizcaya/Bizkaia (Regional Council of Vizcaya)
|
|
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Diputación
Foral de Alava (Regional Council of Alava)
|
|
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Ayuntamiento
de Madrid (City Council of Madrid)
|
|
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Ayuntamiento
de Barcelona (City Council of Barcelona)
|
|
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Cabildo
Insular de Gran Canaria (Island Council of Gran Canaria)
|
|
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Cabildo
Insular de Tenerife (Island Council of Tenerife)
|
|
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Instituto de Crédito Oficial (Public Credit Institution)
|
|
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Instituto
Catalán de Finanzas (Finance Institution of Catalonia)
|
|
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Instituto
Valenciano de Finanzas (Finance Institution of Valencia)
|
|
|
|
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Greece
|
National
Telecommunications Organisation
|
|
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National
Railways Organisation
|
|
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Public
Electricity Company
|
|
|
|
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France
|
La Caisse d'amortissement de la dette sociale (CADES)(Social Debt
|
|
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Redemption
Fund)
|
|
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L'Agence française de développement (AFD) (French Development
Agency)
|
|
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Réseau Ferré de France (RFF) (French Rail Network)
|
|
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Caisse Nationale des Autoroutes (CNA) (National Motorways Fund)
|
|
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Assistance publique Hôpitaux de Paris (APHP) (Paris Hospitals Public
Assistance)
|
|
|
Charbonnages
de France (CDF) (French Coal Board)
|
|
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Entreprise minière et chimique (EMC) (Mining and Chemicals Company)
|
|
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Italy
|
Regions
|
|
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Provinces
|
|
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Municipalities
|
|
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Cassa
Depositi e Prestiti (Deposits and Loans Fund)
|
|
|
|
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Portugal
|
Região
Autónoma da Madeira (Autonomous Region of Madeira)
|
|
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Região
Autónoma dos Açores (Autonomous Region of Azores)
|
|
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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.
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