title: Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market

text:
               19.7.2016

               EN

               Official Journal of the European Union

               L 193/1

         COUNCIL DIRECTIVE (EU) 2016/1164
   of 12 July 2016
   laying down rules against tax avoidance practices that directly affect the functioning of the internal market
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 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 (1),
   Having regard to the opinion of the European Economic and Social Committee (2),
   Acting in accordance with a special legislative procedure,
   Whereas:

               (1)

               The current political priorities in international taxation highlight the need for ensuring that tax is paid where profits and value are generated. It is thus imperative to restore trust in the fairness of tax systems and allow governments to effectively exercise their tax sovereignty. These new political objectives have been translated into concrete action recommendations in the context of the initiative against base erosion and profit shifting (BEPS) by the Organisation for Economic Cooperation and Development (OECD). The European Council has welcomed this work in its conclusions of 13-14 March 2013 and 19-20 December 2013. In response to the need for fairer taxation, the Commission, in its communication of 17 June 2015 sets out an action plan for fair and efficient corporate taxation in the European Union.

               (2)

               The final reports on the 15 OECD Action Items against BEPS were released to the public on 5 October 2015. This output was welcomed by the Council in its conclusions of 8 December 2015. The Council conclusions stressed the need to find common, yet flexible, solutions at the EU level consistent with OECD BEPS conclusions. In addition, the conclusions supported an effective and swift coordinated implementation of the anti-BEPS measures at the EU level and considered that EU directives should be, where appropriate, the preferred vehicle for implementing OECD BEPS conclusions at the EU level. It is essential for the good functioning of the internal market that, as a minimum, Member States implement their commitments under BEPS and more broadly, take action to discourage tax avoidance practices and ensure fair and effective taxation in the Union in a sufficiently coherent and coordinated fashion. In a market of highly integrated economies, there is a need for common strategic approaches and coordinated action, to improve the functioning of the internal market and maximise the positive effects of the initiative against BEPS. Furthermore, only a common framework could prevent a fragmentation of the market and put an end to currently existing mismatches and market distortions. Finally, national implementing measures which follow a common line across the Union would provide taxpayers with legal certainty in that those measures would be compatible with Union law.

               (3)

               It is necessary to lay down rules in order to strengthen the average level of protection against aggressive tax planning in the internal market. As these rules would have to fit in 28 separate corporate tax systems, they should be limited to general provisions and leave the implementation to Member States as they are better placed to shape the specific elements of those rules in a way that fits best their corporate tax systems. This objective could be achieved by creating a minimum level of protection for national corporate tax systems against tax avoidance practices across the Union. It is therefore necessary to coordinate the responses of Member States in implementing the outputs of the 15 OECD Action Items against BEPS with the aim to improve the effectiveness of the internal market as a whole in tackling tax avoidance practices. It is therefore necessary to set a common minimum level of protection for the internal market in specific fields.

               (4)

               It is necessary to establish rules applicable to all taxpayers that are subject to corporate tax in a Member State. Considering that it would result in the need to cover a broader range of national taxes, it is not desirable to extend the scope of this Directive to types of entities which are not subject to corporate tax in a Member State; that is, in particular, transparent entities. Those rules should also apply to permanent establishments of those corporate taxpayers which may be situated in other Member State(s). Corporate taxpayers may be resident for tax purposes in a Member State or be established under the laws of a Member State. Permanent establishments of entities resident for tax purposes in a third country should also be covered by those rules if they are situated in one or more Member State.

               (5)

               It is necessary to lay down rules against the erosion of tax bases in the internal market and the shifting of profits out of the internal market. Rules in the following areas are necessary in order to contribute to achieving that objective: limitations to the deductibility of interest, exit taxation, a general anti-abuse rule, controlled foreign company rules and rules to tackle hybrid mismatches. Where the application of those rules gives rise to double taxation, taxpayers should receive relief through a deduction for the tax paid in another Member State or third country, as the case may be. Thus, the rules should not only aim to counter tax avoidance practices but also avoid creating other obstacles to the market, such as double taxation.

               (6)

               In an effort to reduce their global tax liability, groups of companies have increasingly engaged in BEPS, through excessive interest payments. The interest limitation rule is necessary to discourage such practices by limiting the deductibility of taxpayers' exceeding borrowing costs. It is therefore necessary to fix a ratio for deductibility which refers to a taxpayer's taxable earnings before interest, tax, depreciation and amortisation (EBITDA). Member States could decrease this ratio or place time limits or restrict the amount of unrelieved borrowing costs that can be carried forward or back to ensure a higher level of protection. Given that the aim is to lay down minimum standards, it could be possible for Member States to adopt an alternative measure referring to a taxpayer's earnings before interest and tax (EBIT) and fixed in a way that it is equivalent to the EBITDA-based ratio. Member States could in addition to the interest limitation rule provided by this Directive also use targeted rules against intra-group debt financing, in particular thin capitalisation rules. Tax exempt revenues should not be set off against deductible borrowing costs. This is because only taxable income should be taken into account in determining how much interest may be deducted.

               (7)

               Where the taxpayer is part of a group which files statutory consolidated accounts, the indebtedness of the overall group at worldwide level may be considered for the purpose of granting taxpayers entitlement to deduct higher amounts of exceeding borrowing costs. It may also be appropriate to lay down rules for an equity escape provision, where the interest limitation rule does not apply if the company can demonstrate that its equity over total assets ratio is broadly equal to or higher than the equivalent group ratio. The interest limitation rule should apply in relation to a taxpayer's exceeding borrowing costs without distinction of whether the costs originate in debt taken out nationally, cross-border within the Union or with a third country, or whether they originate from third parties, associated enterprises or intra-group. Where a group includes more than one entity in a Member State, the Member State may consider the overall position of all group entities in the same State, including a separate entity taxation system to allow the transfer of profits or interest capacity between entities within a group, when applying rules that limit the deductibility of interest.

               (8)

               To reduce the administrative and compliance burden of the rules without significantly diminishing their tax effect, it may be appropriate to provide for a safe harbour rule so that net interest is always deductible up to a fixed amount, when this leads to a higher deduction than the EBITDA-based ratio. Member States could reduce the fixed monetary threshold in order to ensure a higher level of protection of their domestic tax base. Since BEPS in principle takes place through excessive interest payments among entities which are associated enterprises, it is appropriate and necessary to allow the possible exclusion of standalone entities from the scope of the interest limitation rule given the limited risks of tax avoidance. In order to facilitate the transition to the new interest limitation rule, Member States could provide for a grandfathering clause that would cover existing loans to the extent that their terms are not subsequently modified, i.e. in case of a subsequent modification, the grandfathering would not apply to any increase in the amount or duration of the loan but would be limited to the original terms of the loan. Without prejudice to State aid rules, Member States could also exclude exceeding borrowing costs incurred on loans used to fund long-term public infrastructure projects considering that such financing arrangements present little or no BEPS risks. In this context, Member States should properly demonstrate that financing arrangements for public infrastructure projects present special features which justify such treatment vis-à-vis other financing arrangements subject to the restrictive rule.

               (9)

               Although it is generally accepted that financial undertakings, i.e. financial institutions and insurance undertakings, should also be subject to limitations to the deductibility of interest, it is equally acknowledged that these two sectors present special features which call for a more customised approach. As the discussions in this field are not yet sufficiently conclusive in the international and Union context, it is not yet possible to provide specific rules in the financial and insurance sectors and Member States should therefore be able to exclude them from the scope of interest limitation rules.

               (10)

               Exit taxes have the function of ensuring that where a taxpayer moves assets or its tax residence out of the tax jurisdiction of a State, that State taxes the economic value of any capital gain created in its territory even though that gain has not yet been realised at the time of the exit. It is therefore necessary to specify cases in which taxpayers are subject to exit tax rules and taxed on unrealised capital gains which have been built in their transferred assets. It is also helpful to clarify that transfers of assets, including cash, between a parent company and its subsidiaries fall outside the scope of the envisaged rule on exit taxation. In order to compute the amounts, it is critical to fix a market value for the transferred assets at the time of exit of the assets based on the arm's length principle. In order to ensure the compatibility of the rule with the use of the credit method, it is desirable to allow Member States to refer to the moment when the right to tax the transferred assets is lost. The right to tax should be defined at national level. It is also necessary to allow the receiving State to dispute the value of the transferred assets established by the exit State when it does not reflect such a market value. Member States could resort to this effect to existing dispute resolution mechanisms. Within the Union, it is necessary to address the application of exit taxation and illustrate the conditions for being compliant with Union law. In those situations, taxpayers should have the right to either immediately pay the amount of exit tax assessed or defer payment of the amount of tax by paying it in instalments over a certain number of years, possibly together with interest and a guarantee.
               Member States could request, for this purpose, the taxpayers concerned to include the necessary information in a declaration. Exit tax should not be charged when the transfer of assets is of a temporary nature and the assets are set to revert to the Member State of the transferor, where the transfer takes place in order to meet prudential capital requirements or for the purpose of liquidity management or when it comes to securities' financing transactions or assets posted as collateral.

               (11)

               General anti-abuse rules (GAARs) feature in tax systems to tackle abusive tax practices that have not yet been dealt with through specifically targeted provisions. GAARs have therefore a function aimed to fill in gaps, which should not affect the applicability of specific anti-abuse rules. Within the Union, GAARs should be applied to arrangements that are not genuine; otherwise, the taxpayer should have the right to choose the most tax efficient structure for its commercial affairs. It is furthermore important to ensure that the GAARs apply in domestic situations, within the Union and vis-à-vis third countries in a uniform manner, so that their scope and results of application in domestic and cross-border situations do not differ. Member States should not be prevented from applying penalties where the GAAR is applicable. When evaluating whether an arrangement should be regarded as non-genuine, it could be possible for Member States to consider all valid economic reasons, including financial activities.

               (12)

               Controlled foreign company (CFC) rules have the effect of re-attributing the income of a low-taxed controlled subsidiary to its parent company. Then, the parent company becomes taxable on this attributed income in the State where it is resident for tax purposes. Depending on the policy priorities of that State, CFC rules may target an entire low-taxed subsidiary, specific categories of income or be limited to income which has artificially been diverted to the subsidiary. In particular, in order to ensure that CFC rules are a proportionate response to BEPS concerns, it is critical that Member States that limit their CFC rules to income which has been artificially diverted to the subsidiary precisely target situations where most of the decision-making functions which generated diverted income at the level of the controlled subsidiary are carried out in the Member State of the taxpayer. With a view to limiting the administrative burden and compliance costs, it should also be acceptable that those Member States exempt certain entities with low profits or a low profit margin that give rise to lower risks of tax avoidance. Accordingly, it is necessary that the CFC rules extend to the profits of permanent establishments where those profits are not subject to tax or are tax exempt in the Member State of the taxpayer. However, there is no need to tax, under the CFC rules, the profits of permanent establishments which are denied the tax exemption under national rules because these permanent establishments are treated as though they were controlled foreign companies. In order to ensure a higher level of protection, Member States could reduce the control threshold, or employ a higher threshold in comparing the actual corporate tax paid with the corporate tax that would have been charged in the Member State of the taxpayer. Member States could, in transposing CFC rules into their national law, use a sufficiently high tax rate fractional threshold.
               It is desirable to address situations both in third countries and within the Union. To comply with the fundamental freedoms, the income categories should be combined with a substance carve-out aimed to limit, within the Union, the impact of the rules to cases where the CFC does not carry on a substantive economic activity. It is important that tax administrations and taxpayers cooperate to gather the relevant facts and circumstances to determine whether the carve-out rule is to apply. It should be acceptable that, in transposing CFC rules into their national law, Member States use white, grey or black lists of third countries, which are compiled on the basis of certain criteria set out in this Directive and may include the corporate tax rate level, or use white lists of Member States compiled on that basis.

               (13)

               Hybrid mismatches are the consequence of differences in the legal characterisation of payments (financial instruments) or entities and those differences surface in the interaction between the legal systems of two jurisdictions. The effect of such mismatches is often a double deduction (i.e. deduction in both states) or a deduction of the income in one state without inclusion in the tax base of the other. To neutralise the effects of hybrid mismatch arrangements, it is necessary to lay down rules whereby one of the two jurisdictions in a mismatch should deny the deduction of a payment leading to such an outcome. In this context, it is useful to clarify that measures aimed to tackle hybrid mismatches in this Directive are aimed to tackle mismatch situations attributable to differences in the legal characterisation of a financial instrument or entity and are not intended to affect the general features of the tax system of a Member State. Although Member States have agreed guidance, in the framework of the Group of the Code of Conduct on Business Taxation, on the tax treatment of hybrid entities and hybrid permanent establishments within the Union as well as on the tax treatment of hybrid entities in relations with third countries, it is still necessary to enact binding rules. It is critical that further work is undertaken on hybrid mismatches between Member States and third countries, as well as on other hybrid mismatches such as those involving permanent establishments.

               (14)

               It is necessary to clarify that the implementation of the rules against tax avoidance provided in this Directive should not affect the taxpayers' obligation to comply with the arm's length principle or the Member State's right to adjust a tax liability upwards in accordance with the arm's length principle, where applicable.

               (15)

               The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (3). The right to protection of personal data according to Article 8 of the Charter of Fundamental Rights of the European Union as well as Directive 95/46/EC of the European Parliament and of the Council (4) applies to the processing of personal data carried out within the framework of this Directive.

               (16)

               Considering that a key objective of this Directive is to improve the resilience of the internal market as a whole against cross-border tax avoidance practices, this cannot be sufficiently achieved by the Member States acting individually. National corporate tax systems are disparate and independent action by Member States would only replicate the existing fragmentation of the internal market in direct taxation. It would thus allow inefficiencies and distortions to persist in the interaction of distinct national measures. The result would be lack of coordination. Rather, by reason of the fact that much inefficiency in the internal market primarily gives rise to problems of a cross-border nature, remedial measures should be adopted at Union level. It is therefore critical to adopt solutions that function for the internal market as a whole and this can be better achieved at Union level. Thus, 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. By setting a minimum level of protection for the internal market, this Directive only aims to achieve the essential minimum degree of coordination within the Union for the purpose of materialising its objectives.

               (17)

               The Commission should evaluate the implementation of this Directive four years after its entry into force and report to the Council thereon. Member States should communicate to the Commission all information necessary for this evaluation.

         HAS ADOPTED THIS DIRECTIVE:
   CHAPTER I

      GENERAL PROVISIONS

   Article 1
   Scope
   This Directive applies to all taxpayers that are subject to corporate tax in one or more Member States, including permanent establishments in one or more Member States of entities resident for tax purposes in a third country.
   Article 2
   Definitions
   For the purposes of this Directive, the following definitions apply:

               (1)

               ‘borrowing costs’ means interest expenses on all forms of debt, other costs economically equivalent to interest and expenses incurred in connection with the raising of finance as defined in national law, including, without being limited to, payments under profit participating loans, imputed interest on instruments such as convertible bonds and zero coupon bonds, amounts under alternative financing arrangements, such as Islamic finance, the finance cost element of finance lease payments, capitalised interest included in the balance sheet value of a related asset, or the amortisation of capitalised interest, amounts measured by reference to a funding return under transfer pricing rules where applicable, notional interest amounts under derivative instruments or hedging arrangements related to an entity's borrowings, certain foreign exchange gains and losses on borrowings and instruments connected with the raising of finance, guarantee fees for financing arrangements, arrangement fees and similar costs related to the borrowing of funds;

               (2)

               ‘exceeding borrowing costs’ means the amount by which the deductible borrowing costs of a taxpayer exceed taxable interest revenues and other economically equivalent taxable revenues that the taxpayer receives according to national law;

               (3)

               ‘tax period’ means a tax year, calendar year or any other appropriate period for tax purposes;

               (4)

               ‘associated enterprise’ means:

                           (a)

                           an entity in which the taxpayer holds directly or indirectly a participation in terms of voting rights or capital ownership of 25 percent or more or is entitled to receive 25 percent or more of the profits of that entity;

                           (b)

                           an individual or entity which holds directly or indirectly a participation in terms of voting rights or capital ownership in a taxpayer of 25 percent or more or is entitled to receive 25 percent or more of the profits of the taxpayer;

                     If an individual or entity holds directly or indirectly a participation of 25 percent or more in a taxpayer and one or more entities, all the entities concerned, including the taxpayer, shall also be regarded as associated enterprises.
               For the purposes of Article 9 and where the mismatch involves a hybrid entity, this definition is modified so that the 25 percent requirement is replaced by a 50 percent requirement.

               (5)

               ‘financial undertaking’ means any of the following entities:

                           (a)

                           a credit institution or an investment firm as defined in point (1) of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council (5) or an alternative investment fund manager (AIFM) as defined in point (b) of Article 4(1) of Directive 2011/61/EU of the European Parliament and of the Council (6) or an undertaking for collective investment in transferable securities (UCITS) management company as defined in point (b) of Article 2(1) of Directive 2009/65/EC of the European Parliament and of the Council (7);

                           (b)

                           an insurance undertaking as defined in point (1) of Article 13 of Directive 2009/138/EC of the European Parliament and of the Council (8);

                           (c)

                           a reinsurance undertaking as defined in point (4) of Article 13 of Directive 2009/138/EC;

                           (d)

                           an institution for occupational retirement provision falling within the scope of Directive 2003/41/EC of the European Parliament and of the Council (9), unless a Member State has chosen not to apply that Directive in whole or in part to that institution in accordance with Article 5 of that Directive or the delegate of an institution for occupational retirement provision as referred to in Article 19(1) of that Directive;

                           (e)

                           pension institutions operating pension schemes which are considered to be social security schemes covered by Regulation (EC) No 883/2004 of the European Parliament and of the Council (10) and Regulation (EC) No 987/2009 of the European Parliament and of the Council (11) as well as any legal entity set up for the purpose of investment of such schemes;

                           (f)

                           an alternative investment fund (AIF) managed by an AIFM as defined in point (b) of Article 4(1) of Directive 2011/61/EU or an AIF supervised under the applicable national law;

                           (g)

                           UCITS in the meaning of Article 1(2) of Directive 2009/65/EC;

                           (h)

                           a central counterparty as defined in point (1) of Article 2 of Regulation (EU) No 648/2012 of the European Parliament and of the Council (12);

                           (i)

                           a central securities depository as defined in point (1) of Article 2(1) of Regulation (EU) No 909/2014 of the European Parliament and of the Council (13).

               (6)

               ‘transfer of assets’ means an operation whereby a Member State loses the right to tax the transferred assets, whilst the assets remain under the legal or economic ownership of the same taxpayer;

               (7)

               ‘transfer of tax residence’ means an operation whereby a taxpayer ceases to be resident for tax purposes in a Member State, whilst acquiring tax residence in another Member State or third country;

               (8)

               ‘transfer of a business carried on by a permanent establishment’ means an operation whereby a taxpayer ceases to have taxable presence in a Member State whilst acquiring such presence in another Member State or third country without becoming resident for tax purposes in that Member State or third country;

               (9)

               ‘hybrid mismatch’ means a situation between a taxpayer in one Member State and an associated enterprise in another Member State or a structured arrangement between parties in Member States where the following outcome is attributable to differences in the legal characterisation of a financial instrument or entity:

                           (a)

                           a deduction of the same payment, expenses or losses occurs both in the Member State in which the payment has its source, the expenses are incurred or the losses are suffered and in another Member State (‘double deduction’); or

                           (b)

                           there is a deduction of a payment in the Member State in which the payment has its source without a corresponding inclusion for tax purposes of the same payment in the other Member State (‘deduction without inclusion’).

         Article 3
   Minimum level of protection
   This Directive shall not preclude the application of domestic or agreement-based provisions aimed at safeguarding a higher level of protection for domestic corporate tax bases.
   CHAPTER II

      MEASURES AGAINST TAX AVOIDANCE

   Article 4
   Interest limitation rule
   1.   Exceeding borrowing costs shall be deductible in the tax period in which they are incurred only up to 30 percent of the taxpayer's earnings before interest, tax, depreciation and amortisation (EBITDA).
   For the purpose of this Article, Member States may also treat as a taxpayer:

               (a)

               an entity which is permitted or required to apply the rules on behalf of a group, as defined according to national tax law;

               (b)

               an entity in a group, as defined according to national tax law, which does not consolidate the results of its members for tax purposes.

         In such circumstances, exceeding borrowing costs and the EBITDA may be calculated at the level of the group and comprise the results of all its members.
   2.   The EBITDA shall be calculated by adding back to the income subject to corporate tax in the Member State of the taxpayer the tax-adjusted amounts for exceeding borrowing costs as well as the tax-adjusted amounts for depreciation and amortisation. Tax exempt income shall be excluded from the EBITDA of a taxpayer.
   3.   By derogation from paragraph 1, the taxpayer may be given the right:

               (a)

               to deduct exceeding borrowing costs up to EUR 3 000 000;

               (b)

               to fully deduct exceeding borrowing costs if the taxpayer is a standalone entity.

         For the purposes of the second subparagraph of paragraph 1, the amount of EUR 3 000 000 shall be considered for the entire group.
   For the purposes of point (b) of the first subparagraph, a standalone entity means a taxpayer that is not part of a consolidated group for financial accounting purposes and has no associated enterprise or permanent establishment.
   4.   Member States may exclude from the scope of paragraph 1 exceeding borrowing costs incurred on:

               (a)

               loans which were concluded before 17 June 2016, but the exclusion shall not extend to any subsequent modification of such loans;

               (b)

               loans used to fund a long-term public infrastructure project where the project operator, borrowing costs, assets and income are all in the Union.

         For the purposes of point (b) of the first subparagraph, a long-term public infrastructure project means a project to provide, upgrade, operate and/or maintain a large-scale asset that is considered in the general public interest by a Member State.
   Where point (b) of the first subparagraph applies, any income arising from a long-term public infrastructure project shall be excluded from the EBITDA of the taxpayer, and any excluded exceeding borrowing cost shall not be included in the exceeding borrowing costs of the group vis-à-vis third parties referred to in point (b) of paragraph 5.
   5.   Where the taxpayer is a member of a consolidated group for financial accounting purposes, the taxpayer may be given the right to either:

               (a)

               fully deduct its exceeding borrowing costs if it can demonstrate that the ratio of its equity over its total assets is equal to or higher than the equivalent ratio of the group and subject to the following conditions:

                           (i)

                           the ratio of the taxpayer's equity over its total assets is considered to be equal to the equivalent ratio of the group if the ratio of the taxpayer's equity over its total assets is lower by up to two percentage points; and

                           (ii)

                           all assets and liabilities are valued using the same method as in the consolidated financial statements referred to in paragraph 8;

                     or

               (b)

               deduct exceeding borrowing costs at an amount in excess of what it would be entitled to deduct under paragraph 1. This higher limit to the deductibility of exceeding borrowing costs shall refer to the consolidated group for financial accounting purposes in which the taxpayer is a member and be calculated in two steps:

                           (i)

                           first, the group ratio is determined by dividing the exceeding borrowing costs of the group vis-à-vis third-parties over the EBITDA of the group; and

                           (ii)

                           second, the group ratio is multiplied by the EBITDA of the taxpayer calculated pursuant to paragraph 2.

         6.   The Member State of the taxpayer may provide for rules either:

               (a)

               to carry forward, without time limitation, exceeding borrowing costs which cannot be deducted in the current tax period under paragraphs 1 to 5;

               (b)

               to carry forward, without time limitation, and back, for a maximum of three years, exceeding borrowing costs which cannot be deducted in the current tax period under paragraphs 1 to 5; or

               (c)

               to carry forward, without time limitation, exceeding borrowing costs and, for a maximum of five years, unused interest capacity, which cannot be deducted in the current tax period under paragraphs 1 to 5.

         7.   Member States may exclude financial undertakings from the scope of paragraphs 1 to 6, including where such financial undertakings are part of a consolidated group for financial accounting purposes.
   8.   For the purpose of this Article, the consolidated group for financial accounting purposes consists of all entities which are fully included in consolidated financial statements drawn up in accordance with the International Financial Reporting Standards or the national financial reporting system of a Member State. The taxpayer may be given the right to use consolidated financial statements prepared under other accounting standards.
   Article 5
   Exit taxation
   1.   A taxpayer shall be subject to tax at an amount equal to the market value of the transferred assets, at the time of exit of the assets, less their value for tax purposes, in any of the following circumstances:

               (a)

               a taxpayer transfers assets from its head office to its permanent establishment in another Member State or in a third country in so far as the Member State of the head office no longer has the right to tax the transferred assets due to the transfer;

               (b)

               a taxpayer transfers assets from its permanent establishment in a Member State to its head office or another permanent establishment in another Member State or in a third country in so far as the Member State of the permanent establishment no longer has the right to tax the transferred assets due to the transfer;

               (c)

               a taxpayer transfers its tax residence to another Member State or to a third country, except for those assets which remain effectively connected with a permanent establishment in the first Member State;

               (d)

               a taxpayer transfers the business carried on by its permanent establishment from a Member State to another Member State or to a third country in so far as the Member State of the permanent establishment no longer has the right to tax the transferred assets due to the transfer.

         2.   A taxpayer shall be given the right to defer the payment of an exit tax referred to in paragraph 1, by paying it in instalments over five years, in any of the following circumstances:

               (a)

               a taxpayer transfers assets from its head office to its permanent establishment in another Member State or in a third country that is party to the Agreement on the European Economic Area (EEA Agreement);

               (b)

               a taxpayer transfers assets from its permanent establishment in a Member State to its head office or another permanent establishment in another Member State or a third country that is party to the EEA Agreement;

               (c)

               a taxpayer transfers its tax residence to another Member State or to a third country that is party to the EEA Agreement;

               (d)

               a taxpayer transfers the business carried on by its permanent establishment to another Member State or a third country that is party to the EEA Agreement.

         This paragraph shall apply to third countries that are party to the EEA Agreement if they have concluded an agreement with the Member State of the taxpayer or with the Union on the mutual assistance for the recovery of tax claims, equivalent to the mutual assistance provided for in Council Directive 2010/24/EU (14).
   3.   If a taxpayer defers the payment in accordance with paragraph 2, interest may be charged in accordance with the legislation of the Member State of the taxpayer or of the permanent establishment, as the case may be.
   If there is a demonstrable and actual risk of non-recovery, taxpayers may also be required to provide a guarantee as a condition for deferring the payment in accordance with paragraph 2.
   The second subparagraph shall not apply where the legislation in the Member State of the taxpayer or of the permanent establishment provides for the possibility of recovery of the tax debt through another taxpayer which is member of the same group and is resident for tax purposes in that Member State.
   4.   Where paragraph 2 applies, the deferral of payment shall be immediately discontinued and the tax debt becomes recoverable in the following cases:

               (a)

               the transferred assets or the business carried on by the permanent establishment of the taxpayer are sold or otherwise disposed of;

               (b)

               the transferred assets are subsequently transferred to a third country;

               (c)

               the taxpayer's tax residence or the business carried on by its permanent establishment is subsequently transferred to a third country;

               (d)

               the taxpayer goes bankrupt or is wound up;

               (e)

               the taxpayer fails to honour its obligations in relation to the instalments and does not correct its situation over a reasonable period of time, which shall not exceed 12 months.

         Points (b) and (c) shall not apply to third countries that are party to the EEA Agreement if they have concluded an agreement with the Member State of the taxpayer or with the Union on the mutual assistance for the recovery of tax claims, equivalent to the mutual assistance provided for in Directive 2010/24/EU.
   5.   Where the transfer of assets, tax residence or the business carried on by a permanent establishment is to another Member State, that Member State shall accept the value established by the Member State of the taxpayer or of the permanent establishment as the starting value of the assets for tax purposes, unless this does not reflect the market value.
   6.   For the purposes of paragraphs 1 to 5, ‘market value’ is the amount for which an asset can be exchanged or mutual obligations can be settled between willing unrelated buyers and sellers in a direct transaction.
   7.   Provided that the assets are set to revert to the Member State of the transferor within a period of 12 months, this Article shall not apply to asset transfers related to the financing of securities, assets posted as collateral or where the asset transfer takes place in order to meet prudential capital requirements or for the purpose of liquidity management.
   Article 6
   General anti-abuse rule
   1.   For the purposes of calculating the corporate tax liability, a Member State shall ignore an arrangement or a series of arrangements which, having been put into place for the main purpose or one of the main purposes of obtaining a tax advantage that defeats the object or purpose of the applicable tax law, are not genuine having regard to all relevant facts and circumstances. An arrangement may comprise more than one step or part.
   2.   For the purposes of paragraph 1, an arrangement or a series thereof shall be regarded as non-genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality.
   3.   Where arrangements or a series thereof are ignored in accordance with paragraph 1, the tax liability shall be calculated in accordance with national law.
   Article 7
   Controlled foreign company rule
   1.   The Member State of a taxpayer shall treat an entity, or a permanent establishment of which the profits are not subject to tax or are exempt from tax in that Member State, as a controlled foreign company where the following conditions are met:

               (a)

               in the case of an entity, the taxpayer by itself, or together with its associated enterprises holds a direct or indirect participation of more than 50 percent of the voting rights, or owns directly or indirectly more than 50 percent of capital or is entitled to receive more than 50 percent of the profits of that entity; and

               (b)

               the actual corporate tax paid on its profits by the entity or permanent establishment is lower than the difference between the corporate tax that would have been charged on the entity or permanent establishment under the applicable corporate tax system in the Member State of the taxpayer and the actual corporate tax paid on its profits by the entity or permanent establishment.

         For the purposes of point (b) of the first subparagraph, the permanent establishment of a controlled foreign company that is not subject to tax or is exempt from tax in the jurisdiction of the controlled foreign company shall not be taken into account. Furthermore the corporate tax that would have been charged in the Member State of the taxpayer means as computed according to the rules of the Member State of the taxpayer.
   2.   Where an entity or permanent establishment is treated as a controlled foreign company under paragraph 1, the Member State of the taxpayer shall include in the tax base:

               (a)

               the non-distributed income of the entity or the income of the permanent establishment which is derived from the following categories:

                           (i)

                           interest or any other income generated by financial assets;

                           (ii)

                           royalties or any other income generated from intellectual property;

                           (iii)

                           dividends and income from the disposal of shares;

                           (iv)

                           income from financial leasing;

                           (v)

                           income from insurance, banking and other financial activities;

                           (vi)

                           income from invoicing companies that earn sales and services income from goods and services purchased from and sold to associated enterprises, and add no or little economic value;

                     This point shall not apply where the controlled foreign company carries on a substantive economic activity supported by staff, equipment, assets and premises, as evidenced by relevant facts and circumstances.
               Where the controlled foreign company is resident or situated in a third country that is not party to the EEA Agreement, Member States may decide to refrain from applying the preceding subparagraph.
               or

               (b)

               the non-distributed income of the entity or permanent establishment arising from non-genuine arrangements which have been put in place for the essential purpose of obtaining a tax advantage.
               For the purposes of this point, an arrangement or a series thereof shall be regarded as non-genuine to the extent that the entity or permanent establishment would not own the assets or would not have undertaken the risks which generate all, or part of, its income if it were not controlled by a company where the significant people functions, which are relevant to those assets and risks, are carried out and are instrumental in generating the controlled company's income.

         3.   Where, under the rules of a Member State, the tax base of a taxpayer is calculated according to point (a) of paragraph 2, the Member State may opt not to treat an entity or permanent establishment as a controlled foreign company under paragraph 1 if one third or less of the income accruing to the entity or permanent establishment falls within the categories under point (a) of paragraph 2.
   Where, under the rules of a Member State, the tax base of a taxpayer is calculated according to point (a) of paragraph 2, the Member State may opt not to treat financial undertakings as controlled foreign companies if one third or less of the entity's income from the categories under point (a) of paragraph 2 comes from transactions with the taxpayer or its associated enterprises.
   4.   Member States may exclude from the scope of point (b) of paragraph 2 an entity or permanent establishment:

               (a)

               with accounting profits of no more than EUR 750 000, and non-trading income of no more than EUR 75 000; or

               (b)

               of which the accounting profits amount to no more than 10 percent of its operating costs for the tax period.

         For the purpose of point (b) of the first subparagraph, the operating costs may not include the cost of goods sold outside the country where the entity is resident, or the permanent establishment is situated, for tax purposes and payments to associated enterprises.
   Article 8
   Computation of controlled foreign company income
   1.   Where point (a) of Article 7(2) applies, the income to be included in the tax base of the taxpayer shall be calculated in accordance with the rules of the corporate tax law of the Member State where the taxpayer is resident for tax purposes or situated. Losses of the entity or permanent establishment shall not be included in the tax base but may be carried forward, according to national law, and taken into account in subsequent tax periods.
   2.   Where point (b) of Article 7(2) applies, the income to be included in the tax base of the taxpayer shall be limited to amounts generated through assets and risks which are linked to significant people functions carried out by the controlling company. The attribution of controlled foreign company income shall be calculated in accordance with the arm's length principle.
   3.   The income to be included in the tax base shall be calculated in proportion to the taxpayer's participation in the entity as defined in point (a) of Article 7(1).
   4.   The income shall be included in the tax period of the taxpayer in which the tax year of the entity ends.
   5.   Where the entity distributes profits to the taxpayer, and those distributed profits are included in the taxable income of the taxpayer, the amounts of income previously included in the tax base pursuant to Article 7 shall be deducted from the tax base when calculating the amount of tax due on the distributed profits, in order to ensure there is no double taxation.
   6.   Where the taxpayer disposes of its participation in the entity or of the business carried out by the permanent establishment, and any part of the proceeds from the disposal previously has been included in the tax base pursuant to Article 7, that amount shall be deducted from the tax base when calculating the amount of tax due on those proceeds, in order to ensure there is no double taxation.
   7.   The Member State of the taxpayer shall allow a deduction of the tax paid by the entity or permanent establishment from the tax liability of the taxpayer in its state of tax residence or location. The deduction shall be calculated in accordance with national law.
   Article 9
   Hybrid mismatches
   1.   To the extent that a hybrid mismatch results in a double deduction, the deduction shall be given only in the Member State where such payment has its source.
   2.   To the extent that a hybrid mismatch results in a deduction without inclusion, the Member State of the payer shall deny the deduction of such payment.
   CHAPTER III

      FINAL PROVISIONS

   Article 10
   Review
   1.   The Commission shall evaluate the implementation of this Directive, in particular the impact of Article 4, by 9 August 2020 and report to the Council thereon. The report by the Commission shall, if appropriate, be accompanied by a legislative proposal.
   2.   Member States shall communicate to the Commission all information necessary for evaluating the implementation of this Directive.
   3.   Member States referred to in Article 11(6) shall communicate to the Commission before 1 July 2017 all information necessary for evaluating the effectiveness of the national targeted rules for preventing base erosion and profit shifting risks (BEPS).
   Article 11
   Transposition
   1.   Member States shall, by 31 December 2018, adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall communicate to the Commission the text of those provisions without delay.
   They shall apply those provisions from 1 January 2019.
   When Member States adopt those provisions, 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.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   3.   Where this Directive mentions a monetary amount in euros (EUR), Member States whose currency is not the euro may opt to calculate the corresponding value in the national currency on 12 July 2016.
   4.   By way of derogation from Article 5(2), Estonia may, for as long as it does not tax undistributed profits, consider a transfer of assets in monetary or non-monetary form, including cash, from a permanent establishment situated in Estonia to a head office or another permanent establishment in another Member State or in a third country that is a party to the EEA Agreement as profit distribution and charge income tax, without giving taxpayers the right to defer the payment of such tax.
   5.   By way of derogation from paragraph 1, Member States shall, by 31 December 2019, adopt and publish, the laws, regulations and administrative provisions necessary to comply with Article 5. They shall communicate to the Commission the text of those provisions without delay.
   They shall apply those provisions from 1 January 2020.
   When Member States adopt those provisions, 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.
   6.   By way of derogation from Article 4, Member States which have national targeted rules for preventing BEPS risks at 8 August 2016, which are equally effective to the interest limitation rule set out in this Directive, may apply these targeted rules until the end of the first full fiscal year following the date of publication of the agreement between the OECD members on the official website on a minimum standard with regard to BEPS Action 4, but at the latest until 1 January 2024.
   Article 12
   Entry into force
   This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
   Article 13
   Addressees
   This Directive is addressed to the Member States.

      Done at Brussels, 12 July 2016.

            For the Council

            The President

         P. KAŽIMÍR

      (1)  Not yet published in the Official Journal.

      (2)  Not yet published in the Official Journal.

      (3)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).

      (4)  Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

      (5)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2004, p. 1).

      (6)  Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).

      (7)  Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).

      (8)  Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1).

      (9)  Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ L 235, 23.9.2003, p. 10).

      (10)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1).

      (11)  Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).

      (12)  Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).

      (13)  Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1).

      (14)  Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (OJ L 84, 31.3.2010, p. 1).


Avis juridique important

|

31990L0206

Commission Directive 90/206/EEC of 9 April 1990 amending the Annexes to Council Directive 70/524/EEC concerning additives in feedingstuffs

Official Journal L 106 , 26/04/1990 P. 0030 - 0031 Finnish special edition: Chapter 3 Volume 32 P. 0137  Swedish special edition: Chapter 3 Volume 32 P. 0137

*****COMMISSION  DIRECTIVE  of 9 April 1990  amending the Annexes to Council Directive 70/524/EEC concerning additives in feedingstuffs  (90/206/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (1), as last amended by Commission Directive 90/110/EEC (2), and in particular Article 7 thereof,  Whereas Directive 70/524/EEC provides for regular amendment of the content of its Annexes to take account of advances in scientific and technical knowledge; whereas the Annexes were consolidated by Commission Directive 85/429/EEC (3);  Whereas a new use of the antibiotic avoparcin has been succesfully tested in certain Member States; whereas it is therefore desirable to allow provisionally this new use at national level until its authorization on a Community level;  Whereas the measures provided for in this Directive are in accordance with the opinion of the Standing Committe on Feedingstuffs,  HAS ADOPTED THIS DIRECTIVE:  Article 1  Annex II to Directive 70/524/EEC is hereby amended as set out in the Annex hereto.  Article 2  This Directive is addressed to the Member States.  Done at Brussels, 9 April 1990.  For the Commission  Ray MAC SHARRY  Member of the Commission  (1) OJ No L 270, 14. 12. 1970, p. 1.  (2) OJ No L 67, 15. 3. 1990, p. 44.  (3) OJ No L 245, 12. 9. 1985, p. 1.  ANNEX  In Annex II to Directive 70/524/EEC, part A 'Antibioticas', the following is added to entry 22 'Avoparcin':  1.2.3.4.5.6.7.8.9 //  //  //  //  //  //  //  //  //  // No  // Additive   // Chemical formula description   // Species or category of animals  // Maximum- age   // Minimum content  // Maximum content   //   //  1.2.3.4.5.6,7.8.9 //   //   //  //   //   // mg/kg of complete feeding stuff  // Other provisions  // Period of authorization  // 1.2.3.4.5.6.7.8.9 //  //  //  //  //  //  //  //  //  //  // //  // 'Dairy  cattle   // -   // 4   // 10   // Indicate in the instructions for use: ''The dose of avoparcin in the daily ration: - must not exceed 100 mg, - must not be less than 50 mg"   // 30. 11. 1990'   //    //   //   //   //   //   //  //   //


title: Council Directive 2009/47/EC of 5 May 2009 amending Directive 2006/112/EC as regards reduced rates of value added tax

text:
               9.5.2009

               EN

               Official Journal of the European Union

               L 116/18

      COUNCIL DIRECTIVE 2009/47/EC
   of 5 May 2009
   amending Directive 2006/112/EC as regards reduced rates of value added tax
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 93 thereof,
   Having regard to the proposal from the Commission,
   Having regard to the Opinion of the European Parliament (1),
   Having regard to the opinion of the European Economic and Social Committee (2),
   Whereas:

               (1)

               Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (3) authorises Member States to apply one or two reduced rates which may not be lower than 5 % and are applicable only to a restrictive list of supplies of goods and services.

               (2)

               The communication on VAT rates other than standard VAT rates which the Commission presented to the European Parliament and the Council in 2007 concluded that the application of reduced VAT rates to locally supplied services poses no real detriment to the smooth functioning of the internal market and may, under certain conditions, have positive effects in terms of job creation and of combating the informal economy. It is therefore appropriate to allow Member States the possibility of applying reduced VAT rates to the labour-intensive services covered by the temporary provisions applicable until the end of 2010 as well as to restaurant and catering services.

               (3)

               With respect to the supply of alcoholic and/or non-alcoholic beverages in the framework of restaurant and catering services, it may be justified to provide a different treatment of those beverages from the treatment provided for in the framework of the supply of foodstuffs; it is appropriate to provide explicitly that a Member State may include or exclude the supply of alcoholic and/or non-alcoholic beverages when applying a reduced rate to the supply of restaurant and catering services referred to in Annex III of Directive 2006/112/EC.

               (4)

               Directive 2006/112/EC should furthermore be amended in order to allow for the application of reduced rates or an exemption respectively in a limited number of specific situations for social or health reasons and in order to clarify and update to technical progress the reference to books in its Annex III.

               (5)

               The content of certain provisions of Directive 2006/112/EC concerning existing derogations and the list of Annex IV thereto will be covered by the list of supplies of goods and services to which a reduced rate may be applied on the basis of this Directive. For reasons of clarity those provisions and Annex IV of Directive 2006/112/EC should be deleted.

               (6)

               In accordance with point 34 of the Interinstitutional Agreement on better law-making (4), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

               (7)

               Directive 2006/112/EC should therefore be amended accordingly,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Directive 2006/112/EC is hereby amended as follows:

               1.

               the following Article shall be inserted:
               ‘Article 104a
               Cyprus may apply one of the two reduced rates provided for in Article 98 to the supply of liquid petroleum gas (LPG) in cylinders.’;

               2.

               Article 105 shall be replaced by the following:
               ‘Article 105
               1.   Portugal may apply one of the two reduced rates provided for in Article 98 to the tolls on bridges in the Lisbon area.
               2.   Portugal may, in the case of transactions carried out in the autonomous regions of the Azores and Madeira and of direct importation into those regions, apply rates lower than those applying on the mainland.’;

               3.

               Chapter 3 of Title VIII shall be deleted;

               4.

               the following point shall be added to Article 111 with effect from 1 January 2011:

                           ‘(c)

                           by Malta in respect of the supply of foodstuffs for human consumption and pharmaceuticals.’;

               5.

               in Article 114(1), the second subparagraph shall be replaced by the following:
               ‘The Member States referred to in the first subparagraph may also apply such a rate to children’s clothing and children’s footwear and housing.’;

               6.

               Article 115 shall be replaced by the following:
               ‘Article 115
               Member States which, at 1 January 1991, were applying a reduced rate to children’s clothing, children’s footwear or housing may continue to apply such a rate to the supply of those goods or services.’;

               7.

               Article 116 shall be deleted;

               8.

               in Article 117, paragraph 1 shall be deleted;

               9.

               in Article 125, paragraph 2 shall be deleted;

               10.

               Article 127 shall be deleted with effect from 1 January 2011;

               11.

               in Article 128, paragraph 2 shall be deleted;

               12.

               in Article 129, paragraph 1 shall be deleted;

               13.

               Annex III shall be amended in accordance with the Annex to this Directive;

               14.

               Annex IV shall be deleted.

         Article 2
   Member States shall forthwith communicate to the Commission the text of the laws, regulations and administrative provisions which they adopt in the field covered by this Directive.
   When they are adopted by Member States, those measures shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   Article 3
   This Directive shall enter into force on the first day of the first month following its publication in the Official Journal of the European Union.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 5 May 2009.

            For the Council

            The President

         M. KALOUSEK

      (1)  Opinion of 19 February 2009 (not yet published in the Official Journal).

      (2)  Opinion of 25 February 2009 (not yet published in the Official Journal).

      (3)  OJ L 347, 11.12.2006, p. 1.

      (4)  OJ C 321, 31.12.2003, p. 1.

      ANNEX
      Annex III to Directive 2006/112/EC is hereby amended as follows:

                  1.

                  Point 6 is replaced by the following:

                              ‘(6)

                              supply, including on loan by libraries, of books on all physical means of support (including brochures, leaflets and similar printed matter, children’s picture, drawing or colouring books, music printed or in manuscript form, maps and hydrographic or similar charts), newspapers and periodicals, other than material wholly or predominantly devoted to advertising;’;

                  2.

                  the following points are inserted:

                              ‘(10a)

                              renovation and repairing of private dwellings, excluding materials which account for a significant part of the value of the service supplied;

                              (10b)

                              window-cleaning and cleaning in private households;’;

                  3.

                  the following point is inserted:

                              ‘(12a)

                              restaurant and catering services, it being possible to exclude the supply of (alcoholic and/or non-alcoholic) beverages;’;

                  4.

                  the following points are added:

                              ‘(19)

                              minor repairing of bicycles, shoes and leather goods, clothing and household linen (including mending and alteration);

                              (20)

                              domestic care services such as home help and care of young, elderly, sick or disabled;

                              (21)

                              hairdressing.’.


title: Council Directive of 27 June 1974 on the extension of Directive No 72/273/EEC concerning aids to shipbuilding

text:
No L 180 /32                      Official Journal of the European Communities                            3 . 7 . 74
                                                COUNCIL DIRECTIVE
                                                     of 27 June 1974
            on the extension of Directive No 72/273/ EEC concerning aids to shipbuilding
                                                       (74/320/ EEC)
           THE COUNCIL OF THE EUROPEAN COMMUNITIES,
            Having regard to the Treaty establishing the European Economic Community, and in
            particular Articles 92 and 113 thereof ;
            Having regard to the proposal of the Commission ;
           Whereas Council Directive No 72/273 / EEC (') of 20 July 1972 concerning aids to ship
            building, expires on 30 June 1974 ;
            Whereat the proposals which were submitted to the Council by the Commission on 5
            November 1973 are of a very complex character, comprising guidelines for an industrial
            policy for shipbuilding as well as a draft third Directive regarding direct and indirect aids
            in this sector ;
            Whereas it does not appear possible, having regard to the complexity of these proposals,
            that the Council can reach a decision on the Commission s proposals before 30 June
            1974, the date of expiry of the Directive ;
            Whereas provision should therefore be made for a further extension of the period of
            validity of Directive No 72/273/ EEC and a period of six months should allow the
            Council to reach a decision ,
            HAS ADOPTED THIS DIRECTIVE :
                                                          Article 1
            Directive No 72/ 273/ EEC of 20 July 1972 shall be extended until 31 December 1974.
                                                          Article 2
            This Directive is addressed to the Member States .
            Done at Luxembourg, 27 June 1974.
                                                                          For the Council
                                                                           The President
                                                                          K. GSCHEIDLE
            (') OJ No L 169 , 27 . 7 . 1972, p. 28 .


Avis juridique important

|

31969L0082

Council Directive 69/82/EEC of 13 March 1969 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self- employed persons engaging in exploration (prospecting and drilling) for petroleum and natural gas (ISIC ex Major Group 13)

Official Journal L 068 , 19/03/1969 P. 0004 - 0006 Finnish special edition: Chapter 6 Volume 1 P. 0092  Danish special edition: Series I Chapter 1969(I) P. 0101  Swedish special edition: Chapter 6 Volume 1 P. 0092  English special edition: Series I Chapter 1969(I) P. 0111  Greek special edition: Chapter 06 Volume 1 P. 0118  Spanish special edition: Chapter 06 Volume 1 P. 0114  Portuguese special edition Chapter 06 Volume 1 P. 0114

COUNCIL DIRECTIVE  of 13 March 1969  concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons engaging in exploration (prospecting and drilling) for petroleum and natural gas (ISIC ex Major Group 13)  (69/82/EEC) THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Articles 54 (2) and (3) and 63 (2) and (3) thereof; Having regard to the General Programme for the abolition of restrictions on freedom of establishment, (1) and in particular Title IV D thereof; Having regard to the General Programme for the abolition of restrictions on freedom to provide services, (2) and in particular Title V C thereof; Having regard to the proposal from the Commission; Having regard to the Opinion of the European Parliament (3); Having regard to the Opinion of the Economic and Social Committee (4); Whereas the General Programmes provide for the introduction, between the beginning of the third stage and the end of the second year of the third stage, of freedom of establishment and freedom to provide services in respect of activities of self-employed persons engaging in exploration (prospecting and drilling) for petroleum and natural gas ; whereas these activities comprise the search for petroleum and natural gas deposits by all appropriate means and all operations preparatory to extraction, including preparation of the site; Whereas, since the adoption of the General Programmes, the European Economic Community has drawn up its own nomenclature of industrial activities, entitled "Nomenclature of Industries in the European Communities" (NICE) ; whereas this nomenclature, which contains references to national nomenclatures, is, while following the same decimal classification, better adapted to the needs of the Member States of the Community than the ISIC nomenclature (International Standard Industrial Classification of all Economic Activities); Whereas the Council Directive of 7 July 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in mining and quarrying (ISIC Major Groups 11-19 (5) abolished existing restrictions in respect of prospecting and drilling for petroleum and natural gas only in so far as such activities were conducted by the holder of the production licence ; whereas the present Directive covers both holders of an exploration (prospecting and drilling) licence and undertakings conducting exploration operations for petroleum and natural gas on behalf of the holder of a production licence or exploration licence (undertakings working under contract) or conducting such operations on their own account; Whereas the geographical area in respect of which the present Directive applies is identical with that covered by the aforementioned Directive; Whereas the exercise of certain professions (engineer, geologist, geophysicist) tends to be closely associated, on the technical side, with petroleum and natural gas exploration (prospecting and drilling) ; whereas the liberalisation of these professions and the mutual recognition of diplomas and other evidence of formal  (1) OJ No 2, 15.1.1962, p. 36/62. (2) OJ No 2, 15.1.1962, p. 32/62. (3) OJ No 268, 6.11.1967, p. 3. (4) OJ No C 1, 12.1.1968, p. 8. (5) OJ No 117, 23.7.1964, p. 1871/64.  qualifications relating thereto will be the subject of separate Directives covering technical occupations in general; Whereas the General Programme for the abolition of restrictions on freedom of establishment provides that restrictions on the right to join professional or trade organisations must be abolished where the professional activities of the person concerned necessarily involve the exercise of this right; Whereas the position of paid employees accompanying a person providing services or acting on his behalf will be governed by the provisions laid down in pursuance of Articles 48 and 49 of the Treaty; HAS ADOPTED THIS DIRECTIVE:  Article 1Member States shall abolish, in respect of the natural persons and companies or firms covered by Title I of the General Programmes for the abolition of restrictions on freedom of establishment and freedom to provide services (hereinafter called "beneficiaries"), the restrictions referred to in Title III of those General Programmes affecting the right to take up and pursue the activities specified in Article 2 of this Directive.  Article 2 1. The provisions of this Directive shall apply to activities of self-employed persons engaging in exploration (prospecting and drilling) for petroleum and natural gas being activities falling within Major Group ex 13 in Annex III to the General Programme for the abolition of restrictions on freedom of establishment. These activities correspond to those listed under Group 130 of the Nomenclature of Industries in the European Communities (NICE), which takes into account the particular structure of the European mining and quarrying industries.  2. The activities in question comprise the search for deposits of petroleum and natural gas by all appropriate means and all operations preparatory to extraction, including preparation of the site.  3. These activities may be pursued: - by undertakings conducting exploration operations on their own behalf but not holding a production licence ; or - by undertakings conducting exploration operations on behalf of others.  Article 3 1. Member States shall in particular abolish the following restrictions: (a) those which prevent beneficiaries from establishing themselves or providing services in the host country under the same conditions and with the same rights as nationals of that country; (b) those existing by reason of administrative practices which result in treatment being applied to beneficiaries that is discriminatory by comparison with that applied to nationals; (c) those which, as a result of rules or practices, prevent beneficiaries from being granted licences or authorisations, or subject beneficiaries to restrictions or to conditions imposed on them alone; (d) those which exclude beneficiaries from pursuing an activity within a professional or trade organisation.  2. The restrictions to be abolished shall include in particular those arising out of measures which prevent or limit establishment or provision of services by beneficiaries by the following means: (a) in Belgium: - the obligation to hold a carte professionelle (Article 1 of the Law of 19 February 1965);  (b) in France: - the obligation to hold a carte d'identité d'étranger commerçant (Décret-loi of 12 November 1938, Décret of 2 February 1939, law of 8 October 1940);  (c) in Italy: - the requirement, in connection with the issue of licences for petroleum and natural gas exploration (by prospecting and drilling) that a person shall be of Italian nationality or, in the case of a company or firm, that it have its registered office in Italy, or that there be reciprocal arrangements (Law No 613 of 21 July 1967, Law No 28 of the Region of Trentino-Alto Adige of 21 November 1958, Law No 45 of the Region of Sardinia of 8 November 1968).  Article 4No Member State shall grant to any of its nationals who go to another Member State for the purpose of pursuing any activity referred to in Article 2 any aid liable to distort the conditions of establishment.   Article 5 1. Where a host Member State requires of its own nationals wishing to take up any activity referred to in Article 2 proof of good character and proof that they have not previously been declared bankrupt, or proof of either one of these, that State shall accept as sufficient evidence, in respect of nationals of other Member States, the production of an extract from the "judicial record" or, failing this, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or the country whence the foreign national comes showing that these requirements have been met.  2. Where the country of origin or the country whence the foreign national comes does not issue such documentary proof of no previous bankruptcy, such proof may be replaced by a declaration on oath made by the person concerned before a judicial or administrative authority, a notary, or a competent professional or trade body, in the country of origin or in the country whence that person comes.  3. Documents issued in accordance with paragraph 1 or with paragraph 2 may not be produced more than three months after their date of issue.  4. Member States shall, within the time limit laid down in Article 6, designate the authorities and bodies competent to issue these documents and shall forthwith inform the other Member States and the Commission thereof.  5. Where the issue of any authorisation is subject to proof of technical competence, the host Member State in question shall take account of work performed outside its territory as if it were work performed within its territory. Similarly, where in the host Member State proof of financial standing is required, that State shall regard certificates issued by banks in the country of origin or in the country whence the foreign national comes as equivalent to certificates issued in its own territory.  Article 6Member States shall adopt the measures necessary to comply with this Directive within six months of its notification and shall forthwith inform the Commission thereof.  Article 7Member States shall ensure that the texts of the main provisions of national law which they adopt in the field covered by this Directive are communicated to the Commission.  Article 8This Directive is addressed to the Member States. Done at Brussels, 13 March 1969. For the Council The President J. DUPONG


title: Directive 2011/91/EU of the European Parliament and of the Council of 13 December 2011 on indications or marks identifying the lot to which a foodstuff belongs  Text with EEA relevance

text:
               16.12.2011

               EN

               Official Journal of the European Union

               L 334/1

         DIRECTIVE 2011/91/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
   of 13 December 2011
   on indications or marks identifying the lot to which a foodstuff belongs
   (codification)
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 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 Economic and Social Committee (1),
   Acting in accordance with the ordinary legislative procedure (2),
   Whereas:

               (1)

               Council Directive 89/396/EEC of 14 June 1989 on indications or marks identifying the lot to which a foodstuff belongs (3) has been substantially amended several times (4). In the interests of clarity and rationality that Directive should be codified.

               (2)

               The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.

               (3)

               Trade in foodstuffs occupies a very important place in the internal market.

               (4)

               Indication of the lot to which a foodstuff belongs meets the need for better information on the identity of products. It is therefore a useful source of information when foodstuffs are the subject of dispute or constitute a health hazard for consumers.

               (5)

               Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (5) contains no provisions on indication of lot identification.

               (6)

               At international level there is a general obligation to provide a reference to the manufacturing or packaging lot of prepackaged foodstuffs. It is the duty of the Union to contribute to the development of international trade.

               (7)

               It is therefore advisable to provide for rules of a general and horizontal nature in order to manage a common lot identification system.

               (8)

               The efficiency of that system depends on its application at the various marketing stages. It is nevertheless desirable to exclude certain products and operations, in particular those taking place at the start of the distribution network for agricultural products.

               (9)

               It is necessary to take account of the fact that the immediate consumption upon purchase of certain foodstuffs such as ice cream in individual portions means that indicating the lot directly on the individual packaging would serve no useful purpose. However, it should be compulsory in the case of those products to indicate the lot on the combined package.

               (10)

               The concept of a lot implies that several sales units of a foodstuff have almost identical production, manufacture or packaging characteristics. That concept should, therefore, not apply to bulk products or products which, owing to their individual specificity or heterogeneous nature, cannot be considered as forming a homogeneous batch.

               (11)

               In view of the variety of identification methods used, it should be up to the trader to determine the lot and to affix the corresponding indication or mark.

               (12)

               In order to satisfy the information requirements for which it is intended, that indication should be clearly distinguishable and recognisable as such.

               (13)

               The date of minimum durability or ‘use by’ date, may, in conformity with Directive 2000/13/EC, serve as the lot identification, provided it is indicated precisely.

               (14)

               This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   1.   This Directive concerns the indication which allows identification of the lot to which a foodstuff belongs.
   2.   For the purposes of this Directive, ‘lot’ means a batch of sales units of a foodstuff produced, manufactured or packaged under practically the same conditions.
   Article 2
   1.   A foodstuff may not be marketed unless it is accompanied by an indication as referred to in Article 1(1).
   2.   Paragraph 1 shall not apply:

               (a)

               to agricultural products which, on leaving the holding, are:

                           (i)

                           sold or delivered to temporary storage, preparation or packaging stations;

                           (ii)

                           transported to producers’ organisations; or

                           (iii)

                           collected for immediate integration into an operational preparation or processing system;

               (b)

               when, at the point of sale to the ultimate consumer, the foodstuffs are not prepackaged, are packaged at the request of the purchaser or are prepackaged for immediate sale;

               (c)

               to packagings or containers the largest side of which has an area of less than 10 cm2;

               (d)

               to individual portions of ice cream. The indication enabling the lot to be identified shall appear on the combined package.

         Article 3
   The lot shall be determined in each case by the producer, manufacturer or packager of the foodstuff in question, or the first seller established within the Union.
   The indication referred to in Article 1(1) shall be determined and affixed under the responsibility of one or other of those operators. It shall be preceded by the letter ‘L’ except in cases where it is clearly distinguishable from the other indications on the label.
   Article 4
   When the foodstuffs are prepackaged, the indication referred to in Article 1(1) and, where appropriate, the letter ‘L’ shall appear on the prepackaging or on a label attached thereto.
   When the foodstuffs are not prepackaged, the indication referred to in Article 1(1) and, where appropriate, the letter ‘L’ shall appear on the packaging or on the container or, failing that, on the relevant commercial documents.
   It shall in all cases appear in such a way as to be easily visible, clearly legible and indelible.
   Article 5
   When the date of minimum durability or ‘use by’ date appears on the label, the indication referred to in Article 1(1) need not appear on the foodstuff, provided that the date consists at least of the uncoded indication of the day and the month in that order.
   Article 6
   This Directive shall apply without prejudice to the indications laid down by specific provisions of the Union.
   The Commission shall publish and keep up to date a list of the provisions in question.
   Article 7
   Directive 89/396/EEC, as amended by the Directives listed in Annex I, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B.
   References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
   Article 8
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 9
   This Directive is addressed to the Member States.

      Done at Strasbourg, 13 December 2011.

            For the European Parliament

            The President

         J. BUZEK

            For the Council

            The President

         M. SZPUNAR

      (1)  OJ C 54, 19.2.2011, p. 34.

      (2)  Position of the European Parliament of 11 May 2011 (not yet published in the Official Journal) and decision of the Council of 8 November 2011.

      (3)  OJ L 186, 30.6.1989, p. 21.

      (4)  See Annex I, Part A.

      (5)  OJ L 109, 6.5.2000, p. 29.

      ANNEX I
      PART A

         Repealed Directive with list of its successive amendments

      (referred to in Article 7)

                  Council Directive 89/396/EEC

                  (OJ L 186, 30.6.1989, p. 21)

                  Council Directive 91/238/EEC

                  (OJ L 107, 27.4.1991, p. 50)

                  Council Directive 92/11/EEC

                  (OJ L 65, 11.3.1992, p. 32)

            PART B

         List of time limits for transposition into national law

      (referred to in Article 7)

                  Directive

                  Time limit for transposition

                  89/396/EEC

                  20 June 1990 (1)

                  91/238/EEC

                  —

                  92/11/EEC

                  —

         (1)  In accordance with the first paragraph of Article 7 of Directive 89/396/EEC, as amended by Directive 92/11/EEC:

         ‘Member States shall, where necessary, amend their laws, regulations or administrative provisions so as to:

                     —

                     authorise trade in products complying with this Directive by not later than 20 June 1990,

                     —

                     prohibit trade in products not complying with this Directive with effect from 1 July 1992. However, trade in products placed on the market or labelled before that date and not conforming with this Directive may continue until stocks run out.’.

      ANNEX II

         Correlation table

                  Directive 89/396/EEC

                  This Directive

                  Article 1

                  Article 1

                  Article 2(1) and (2)

                  Article 2(1) and (2)

                  Article 2(3)

                  —

                  Articles 3 to 6

                  Articles 3 to 6

                  Article 7

                  —

                  —

                  Article 7

                  —

                  Article 8

                  Article 8

                  Article 9

                  —

                  Annex I

                  —

                  Annex II


Avis juridique important

|

31980L1179

Council Directive 80/1179/EEC of 4 December 1980 amending, consequent on the accession of Greece, Directive 74/562/EEC on admission to the occupation of road passenger transport operator in national and international transport operations

Official Journal L 350 , 23/12/1980 P. 0042 - 0042 Finnish special edition: Chapter 7 Volume 2 P. 0170  Greek special edition: Chapter 06 Volume 3 P. 0005  Swedish special edition: Chapter 7 Volume 2 P. 0170  Spanish special edition: Chapter 07 Volume 2 P. 0256  Portuguese special edition Chapter 07 Volume 2 P. 0256

COUNCIL DIRECTIVE  of 4 December 1980  amending, consequent on the accession of Greece, Directive 74/562/EEC on admission to the occupation of road passenger transport operator in national and international transport operations  (80/1179/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the 1979 Act of Accession, and in particular Article 146 thereof,  Having regard to the proposal from the Commission,  Whereas Council Directive 74/562/EEC of 12 November 1974 on admission to the occupation of road passenger transport operator in national and international transport operations (1) must be amended so as to ensure that in Greece the acquired rights of operators already engaged in their occupation in that country are safeguarded under conditions comparable to those which have been enjoyed by operators in the present Member States;  Whereas, under the terms of Article 22 of the 1979 Act of Accession, Directive 74/562/EEC must be adapted in conformity with the guidelines as set out in Annex II to that Act ; whereas, moreover, such adaptation should take account of the time limit provided for in Annex XII to the Act for the introduction by Greece of the measures required for the application of Directive 74/562/EEC,  HAS ADOPTED THIS DIRECTIVE:    Article 1 The following paragraph shall be added to Article 4 of Directive 74/562/EEC:  "3. With regard to Greece, the dates in paragraphs 1 and 2 shall be replaced as follows:    - in paragraph 1, "1 January 1978" shall be replaced by "1 January 1984";       - in paragraph 2, "31 December 1974", "1 January 1978" and "1 January 1980" shall be replaced by "31 December 1980", "1 January 1984" and "1 January 1986" respectively."          Article 2 This Directive shall apply as from 1 January 1981.   Article 3 This Directive is addressed to the Member States.     Done at Brussels, 4 December 1980.  For the Council  The President  J. BARTHEL  (1)OJ No L 308, 19.11.1974, p. 23.


Avis juridique important

|

31985L0152

Council Directive 85/152/EEC of 19 February 1985 amending Directive 79/173/EEC on the programme for the acceleration and guidance of collective irrigation works in Corsica

Official Journal L 058 , 26/02/1985 P. 0034 - 0034

*****COUNCIL  DIRECTIVE  of 19 February 1985  amending Directive 79/173/EEC on the programme for the acceleration and guidance of collective irrigation works in Corsica  (Only the French text is authentic)  (85/152/EEC)  THE COUNCIL OF THE EUROPEAN  COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,  Having regard to the proposal from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Whereas, pursuant to Article 2 of Directive 79/173/EEC (3), France submitted to the Commission a programme for the acceleration of collective irrigation works in Corsica, which was approved by the Commission by Decision 80/33/EEC (4);  Whereas, to encourage efforts to assist Corsican farmers in preparing to meet the keener competition resulting from enlargement of the Community and to help make up time lost in the execution of the programme, the duration of the common measure should be extended until the end of 1985,  HAS ADOPTED THIS DIRECTIVE:  Article 1  Article 5 (1) of Directive 79/173/EEC is hereby replaced by the following:  '1. The duration of the common measure shall run until 31 December 1985.'  Article 2  This Directive is addressed to the French Republic.  Done at Brussels, 19 February 1985.  For the Council  The President  G. ANDREOTTI  (1) OJ No C 302, 13. 11. 1984, p. 4.  (2) Opinion delivered on 15 February 1985 (not yet published in the Official Journal).  (3) OJ No L 38, 14. 2. 1979, p. 15.  (4) OJ No L 13, 18. 1. 1980, p. 37.