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).

Summary: Tackling corporate tax avoidance Tackling corporate tax avoidance SUMMARY OF: Directive (EU) 2016/1164 — preventing tax avoidance by companies WHAT IS THE AIM OF THE DIRECTIVE? It introduces rules to prevent tax avoidance by companies and thus to address the issue of aggressive tax planning in the EU’s single market. KEY POINTS Scope The directive applies to all taxpayers that are subject to company tax in one or more EU country, including permanent establishments in one or more EU countries of entities resident for tax purposes in a non-EU country. Combating base erosion and profit shifting (BEPS)* The directive lays down anti-tax-avoidance rules in 4 specific fields to combat BEPS: Interest limitation rules: where multinational companies artificially erode their tax base by paying inflated interest payments to affiliated companies in low-tax jurisdictions. The directive aims to dissuade companies from this practice by limiting the amount of interest that a taxpayer has the right to deduct in a tax period. The maximum amount of deductible interest is set at a maximum of 30% of the taxpayer’s earnings before interest, tax, depreciation (a measure of how much of an asset's value has been used up at a given point in time) and amortisation (spreading payments over multiple periods). Exit taxation rules: where taxpayers try to reduce their tax liability by transferring its tax residence and/or its assets to a low-tax jurisdiction, solely for the purposes for aggressive tax planning. Exit taxation rules aims to prevent the erosion of the tax base in the EU country of origin when high-value assets are transferred with ownership unchanged, outside the tax jurisdiction of that country. The directive gives taxpayers the option of deferring the payment of the amount of tax over 5 years and settling through staggered payments, but only if the transfer takes place within the EU. General anti-abuse rule: this rule aims to cover gaps that may exist in a country's specific anti-abuse rules against tax avoidance, and allows tax authorities the power to deny taxpayers the benefit of abusive tax arrangements. The general anti-abuse clause of the directive applies to arrangements that are not genuine to the extent that they are not put into place for valid commercial reasons that reflect economic reality. Controlled foreign company (CFC) rules: in order to reduce their overall tax liability, corporate groups are able to shift profits to controlled subsidiaries in low-tax jurisdictions. CFC rules reattribute the income of a low-taxed controlled foreign subsidiary to its more highly taxed parent company. As a result of this, the parent company is charged to tax on this income in its country of residence. Amending Directive (EU) 2017/952 Because Directive (EU) 2016/1164 only addressed hybrid mismatches* within the EU, a new Directive (EU) 2017/952 was adopted extending the scope to ensure the rules cover hybrid mismatches with non-EU countries. The rules of the latter directive supersede the rules on hybrid mismatches of Directive EU 2016/1164. Rules on hybrid mismatches: where corporate taxpayers take advantage of disparities between national tax systems in order to reduce their overall tax liability, for instance through double deduction (i.e. deduction on both sides of the border) or a deduction of the income on one side of the border without its inclusion on the other side. To neutralise the effects of hybrid mismatch arrangements, the directive lays down rules whereby 1 of the 2 jurisdictions in a mismatch should deny the deduction of a payment leading to such an outcome. FROM WHEN DOES THE DIRECTIVE APPLY? Directive (EU) 2016/1164 has applied since 8 August 2016 and had to become law in the EU countries by 31 December 2018. Amending Directive (EU) 2017/952 has applied since 27 June 2017 and has to become law in the EU countries by 31 December 2019 (or by 31 December 2021 in the case of hybrid mismatches). BACKGROUND The directive builds on the Action Plan for Fair and Efficient Corporate Taxation and is in response to the finalisation of the project against Base Erosion and Profit Shifting (BEPS) by the G20 and the Organisation for Economic Cooperation and Development (OECD). KEY TERMS Base erosion and profit shifting (BEPS): tax avoidance strategies that exploit gaps and mismatches in tax rules to artificially shift profits to low or no-tax locations. Hybrid mismatch: an arrangement exploiting differences in the tax treatment of instruments, companies or transfers between 2 or more countries. MAIN DOCUMENT 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 (OJ L 193, 19.7.2016, pp. 1-14) RELATED DOCUMENTS Council Directive (EU) 2017/952 of 29 May 2017 amending Directive (EU) 2016/1164 as regards hybrid mismatches with third countries (OJ L 144, 7.6.2017, pp. 1-11) last update 07.11.2017


25.6.2020 EN Official Journal of the European Union L 202/3 STATUS AGREEMENT between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia THE EUROPEAN UNION, of the one part, and THE REPUBLIC OF SERBIA, of the other part, hereinafter jointly referred to as ‘the Parties’, WHEREAS situations may arise where the European Border and Coast Guard Agency coordinates operational cooperation between Member States of the European Union and the Republic of Serbia, including on the territory of the Republic of Serbia, WHEREAS a legal framework in the form of a status agreement should be established for the situations where the team members of the European Border and Coast Guard Agency will have executive powers on the territory of the Republic of Serbia, WHEREAS the Parties will take due account of the declarations annexed to this Agreement, CONSIDERING that all actions of the European Border and Coast Guard Agency on the territory of the Republic of Serbia should fully respect fundamental rights, HAVE DECIDED TO CONCLUDE THIS AGREEMENT: Article 1 Scope 1. This Agreement shall cover all aspects of cooperation between the Republic of Serbia and the Agency necessary for carrying out actions by the Agency that may take place on the territory of the Republic of Serbia whereby team members of the Agency may have executive powers. 2. This Agreement does not extend the scope of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation (1) (the ‘EC-Serbia Readmission Agreement’). With regard to return operations as defined in point (d) of Article 2, this Agreement only concerns the provision of operational support for return operations which are carried out in accordance with the EC-Serbia Readmission Agreement. 3. This Agreement shall cover the Republic of Serbia. This Agreement shall not cover Kosovo (*1). Article 2 Definitions For the purposes of this Agreement, the following definitions apply: (a) ‘action’ means a joint operation, a rapid border intervention or a return operation; (b) ‘joint operation’ means an action aimed at tackling illegal immigration or cross-border crime or aimed at providing increased technical and operational assistance at the external borders of a Member State neighbouring the Republic of Serbia and deployed on the territory of the Republic of Serbia; (c) ‘rapid border intervention’ means an action aimed at rapidly responding to a situation of specific and disproportionate challenges at the borders of the Republic of Serbia neighbouring a Member State and deployed on the territory of the Republic of Serbia for a limited period of time; (d) ‘return operation’ means an operation that is coordinated by the Agency and involves technical and operational reinforcement being provided by one or more Member States under which returnees from one or more Member States are returned from one or more Member States either on a forced or voluntary basis to the Republic of Serbia in line with the EC-Serbia Readmission Agreement; (e) ‘border control’ means the control of persons, travel documents, means of transport and items carried out when crossing a state border, consisting of border checks at border crossing points and border surveillance between border crossing points; (f) ‘member of a team’ means a member either of the Agency staff or a member of a team of border guards and other relevant staff from participating Member States, including border guards and other relevant staff that are seconded by Member States to the Agency to be deployed during an action; (g) ‘Member State’ means a Member State of the European Union; (h) ‘home Member State’ means the Member State of which a member of a team is a border guard or other relevant staff member; (i) ‘personal data’ means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number i.e. unique citizen’s identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; (j) ‘participating Member State’ means a Member State which participates in an action in the Republic of Serbia by providing technical equipment, border guards and other relevant staff deployed as part of the team; (k) ‘Agency’ means the European Border and Coast Guard Agency established by the Council Regulation (EC) No 2007/2004 (2). Article 3 Launching an action 1. The initiative to launch an action can be proposed to the competent authorities of the Republic of Serbia by the Agency. The competent authorities of the Republic of Serbia may request the Agency to consider launching an action. 2. Carrying out an action requires the consent of competent authorities of both the Republic of Serbia and the Agency. Article 4 Operational plan 1. A joint operational plan shall be agreed between the Agency and the Republic of Serbia for each joint operation or rapid border intervention. The European Commission shall ensure that the Article 54(3) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council (3) is respected. 2. The joint operational plan shall set out in detail the organisation and procedural aspects of the joint operation or rapid border intervention, including a description and an assessment of the situation, the operational aim and objectives, type of technical equipment to be deployed, the implementation plan, the cooperation with other third countries, other Agencies and bodies of the European Union or international organisations, the provisions in respect of fundamental rights including personal data protection, the coordination, command, control, communication and reporting structure, the organisational arrangements and logistics, the evaluation and the financial aspects of the joint operation or rapid border intervention. The evaluation of the joint operation or of the rapid border intervention shall be conducted jointly by the competent authority of the Republic of Serbia and by the Agency. Article 5 Tasks and powers of the members of the team 1. Members of the team shall have the authority to perform the tasks and exercise the executive powers required for border control and return operations. 2. Members of the team shall respect the national legislation of the Republic of Serbia. 3. Members of the team may only perform tasks and exercise powers on the territory of the Republic of Serbia under instructions from and in the presence of border guards or other police officers of the Republic of Serbia. The competent authority of the Republic of Serbia shall issue, where appropriate, instructions to the team in accordance with the operational plan. The competent authority of the Republic of Serbia may authorise members of the teams to act on its behalf as long as the overall responsibility and command and control functions remain with the border guards or other police officers of the Republic of Serbia present at all times. The Agency, through its coordinating officer, may communicate its views to the competent authority of the Republic of Serbia on the instructions given to the team. In that case, the competent authority of the Republic of Serbia shall take those views into consideration and follow them to the extent possible. In cases where the instructions issued to the team are not in compliance with the operational plan, the coordinating officer shall immediately report to the executive director of the Agency. The executive director may take appropriate measures, including the suspension or the termination of an action. 4. Members of the team shall wear their own uniform while performing their tasks and exercising their powers. They shall at least wear visible personal identification and a blue armband with the insignias of the European Union and of the Agency. For the purposes of identification vis-à-vis the competent authorities of the Republic of Serbia, members of the team shall at all times carry the accreditation document referred to in Article 8. 5. While performing their tasks and exercising their powers, members of the team may carry service weapons, ammunition and equipment as authorised according to the home Member State’s national law. The Republic of Serbia shall, in advance of the deployment of the members of the team, inform the Agency of the permissible service weapons, ammunition and equipment and of the relevant legal framework and conditions for their use. The Agency shall submit in advance to the competent authority of the Republic of Serbia the list of service weapons of the members of the team, namely information concerning the type and serial number of the weapons and the type and quantity of ammunitions. 6. While performing their tasks and exercising their powers, members of the team shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the Republic of Serbia, in the presence of border guards or other police officers of the Republic of Serbia and in accordance with the national law of the Republic of Serbia. The Republic of Serbia may authorise members of the team to use force in the absence of border or other police officers of the Republic of Serbia. Members of the team may use weapons only when it is absolutely necessary in self-defence to repel an immediate life-threatening attack against themselves or another person, in accordance with the national legislation of the Republic of Serbia. 7. The competent authority of the Republic of Serbia may, upon request, communicate relevant information contained in its national databases to members of the team if necessary for fulfilling operational aims specified in the operational plan and for implementing actions. The members of the team may be communicated only information concerning relevant facts which is necessary for performing their tasks and exercising their powers. The Agency may communicate to the competent authorities of the Republic of Serbia relevant information which is necessary for fulfilling operational aims specified in the operational plan and for implementing actions. 8. For the purposes of fulfilling operational aims specified in the operational plan and implementing actions, the competent authority of the Republic of Serbia and members of the team may exchange other information and findings. 9. The members of the team referred to in paragraphs 1 and 3 to 6 do not include the Agency staff. Article 6 Suspension and termination of an action 1. The executive director of the Agency may suspend or terminate an action, after informing the competent authority of the Republic of Serbia in writing, if this Agreement or the operational plan are not properly implemented by the Republic of Serbia. The executive director shall notify the competent authority of the Republic of Serbia of the reasons for such suspension or termination. 2. The Republic of Serbia may suspend or terminate an action, after informing the Agency in writing, if this Agreement or the operational plan is not properly implemented by the Agency or by any participating Member State. The competent authority of the Republic of Serbia shall notify the Agency the reasons for such suspension or termination. 3. In particular, the executive director of the Agency or the Republic of Serbia may suspend or terminate an action in cases of breach of fundamental rights or violations of the principle of non-refoulement or of data protection rules. 4. Termination of an action shall not affect any rights or obligations arising out of the application of this Agreement or the operational plan before such termination. Article 7 Privileges and immunities of the members of the team 1. Papers, correspondence and property of members of the team shall be inviolable, except in the case of measures of execution which are permitted pursuant to paragraph 6. 2. Members of the team shall enjoy immunity from the criminal jurisdiction of the Republic of Serbia in respect of the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan. In the event of an allegation of a criminal offence being committed by a member of the team, the competent authority referred to in Article 13(1), shall immediately notify the executive director of the Agency and the competent authority of the home Member State. After careful consideration of any representation of the home Member State and of the Republic of Serbia, and based upon information provided by the Parties, the executive director of the Agency shall certify whether the act in question was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan. In case the executive director of the Agency certifies that the act was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan, the member of the team shall benefit from immunity of the criminal jurisdiction of the Republic of Serbia for the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan. 3. Members of the team shall enjoy immunity from the civil and administrative jurisdiction of the Republic of Serbia in respect of all acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan. If any civil proceeding is instituted against members of the team before any court, the competent authority referred to in Article 13(1), shall immediately notify the Executive Director of the Agency and the competent authority of the home Member State. After careful consideration of any representation of the home Member State and of the Republic of Serbia, and based upon information provided by the Parties, the executive director of the Agency shall certify whether the act in question was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan. In case the executive director of the Agency certifies that the act was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan, the member of the team shall benefit from immunity of the civil and administrative jurisdiction of the Republic of Serbia for the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan. 4. The immunity of members of the teams from the criminal, civil and administrative jurisdiction of the Republic of Serbia in accordance with paragraphs 2 and 3 may be waived by the home Member State as the case may be. Such a waiver must always be an express waiver. 5. Members of the team shall not be obliged to give evidence as witnesses. 6. In case of damage caused by a member of the team in the exercise of official functions in the course of the actions carried out in accordance with the operational plan, the Republic of Serbia shall be liable for any damage. In case of damage caused by gross negligence or wilful misconduct or if the act was not committed in the exercise of official functions by a member of the team from a participating Member State, the Republic of Serbia may request, via the executive director, that compensation be paid by the participating Member State concerned. In case of damage caused by gross negligence or wilful misconduct or if the act was not committed in the exercise of official functions by a member of the team who is a staff member of the Agency, the Republic of Serbia may request that compensation be paid by the Agency. In case of damage caused in the Republic of Serbia, due to force majeure, neither the Republic of Serbia, nor the participating Member State, nor the Agency, shall hold any responsibility. 7. No measures of execution may be taken in respect of members of the team, except in the case where a criminal or civil proceeding not related to their official functions is instituted against them. Property of members of the team, which is certified by the executive director of the Agency to be necessary for the fulfilment of their official functions, shall be free from seizure for the satisfaction of a judgment, decision or order. In civil proceedings, members of the team shall not be subject to any restrictions on their personal liberty or to any other measures of constraint. 8. The immunity of members of the team from the jurisdiction of the Republic of Serbia shall not exempt them from the jurisdictions of the respective home Member States. 9. Members of the team shall, with respect to services rendered for the Agency, be exempt from social security provisions which may be in force in the Republic of Serbia. 10. Members of the team shall be exempt from any form of taxation in the Republic of Serbia on the salary and emoluments paid to them by the Agency or the home Member States, as well as on any income received from outside the Republic of Serbia. 11. The Republic of Serbia shall, in accordance with such laws and regulations as it may adopt, permit the entry of articles for the personal use of members of the team, and shall grant exemption from all customs duties, taxes, and related charges other than charges for storage, transport and similar services, in respect of such articles. The Republic of Serbia shall also permit the export of such articles. 12. The personal baggage of members of the team may be inspected if there are grounds for considering that it contains articles that are not for the personal use of members of the team, or articles whose import or export is prohibited by the law or subject to quarantine regulations of the Republic of Serbia. Inspection of such personal baggage shall be conducted only in the presence of the member(s) of the team concerned or an authorised representative of the Agency. Article 8 Accreditation document 1. The Agency shall, in cooperation with the Republic of Serbia, issue a document in the official language(s) of the Republic of Serbia and in an official language of the institutions of the European Union to each member of the team for the purposes of identification vis-à-vis the national authorities of the Republic of Serbia and as proof of the holder’s rights to perform the tasks and exercise the powers referred to in Article 5 and in the operational plan. The document shall include the following information on the member: name and nationality; rank or job title; a recent digitised photograph and tasks authorised to be performed during the deployment. It shall also mention that the holder of this document has a right to reside in the territory of the Republic of Serbia for the duration of an action without additional procedures. 2. The accreditation document, in combination with a valid travel document, grants the member of the team access to the Republic of Serbia without the need for a visa or prior authorisation. 3. The accreditation document shall be returned to the Agency at the end of the action. 4. The Agency will before the start of the application of this Agreement and whenever its template is modified provide the competent authority of the Republic of Serbia with a specimen of the accreditation document referred to in paragraph 1. Article 9 Fundamental Rights 1. Members of the team shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights and freedoms, including as regards access to asylum procedures, human dignity and the prohibition of torture, inhuman or degrading treatment, the right to liberty, the principle of non-refoulement and the prohibition of collective expulsions, the rights of the child and the right to respect for private and family life. While performing their tasks and exercising their powers, they shall not discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation. Any measures interfering with fundamental rights and freedoms taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures and respect the essence of these fundamental rights and freedoms. 2. Each Party shall use an existing mechanism to deal with allegations of a breach of fundamental rights committed by its staff in the exercise of their official functions in the course of an action performed under this Agreement. Article 10 Processing of personal data 1. Processing of personal data shall take place only in cases when it is necessary for the implementation of this Agreement by the Republic of Serbia, the Agency or participating Member States. 2. Processing of personal data by the competent authority of the Republic of Serbia shall be subject to its national laws. 3. Processing of personal data for administrative purposes by the Agency and the participating Member State(s), including in case of transfer of personal data to the Republic of Serbia, shall be subject to Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (4); Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (5); Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (6), and to measures adopted by the Agency for the application of 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 (7), as referred to in Article 45(2) of Regulation (EU) 2016/1624. 4. In case the processing involves the transfer of personal data, Member States and the Agency shall indicate, at the moment of transferring personal data to the competent authority of the Republic of Serbia, any restrictions on access to it or use of it, in general or specific terms, including as regards transfer, erasure or destruction. Where the need for such restrictions becomes apparent after the transfer of personal data, they shall inform the competent authority of the Republic of Serbia accordingly. 5. Personal data collected and further processed for administrative purposes during an action may be processed by the Agency, the participating Member States and the competent authority of the Republic of Serbia in line with the applicable data protection legislation. For the purpose of implementing this Agreement the competent authority of the Republic of Serbia shall keep a record of personal data collected and further processed under this Article. The data covered by this record shall be: name and surname, date of birth, place of birth, country of origin, number and type of personal or other documents, place and time of data processing and the reason for data collecting and processing. The data contained in this record shall be kept for three years from the date of collection. 6. The Agency, the participating Member States and the Republic of Serbia shall draw up a common report on the application of paragraphs 1 to 5 at the end of each action. This report shall be sent to the competent authorities of the Republic of Serbia, to the Agency’s fundamental rights officer and to the Agency’s data protection officer. The Agency’s fundamental rights officer and the Agency’s data protection officer shall report to the executive director of the Agency. Article 11 Disputes and interpretation 1. All issues arising in connection with the application of this Agreement shall be examined jointly by the competent authorities of the Republic of Serbia and by representatives of the Agency. 2. Failing any prior settlement, disputes concerning the interpretation or application of this Agreement shall be settled exclusively by negotiation between the competent authorities of the Republic of Serbia and the European Commission. 3. For the purposes of paragraphs 1 and 2, the Agency and the European Commission shall be in constant contact with the Member State(s) bordering the operational area. Article 12 Relation to other international obligations This Agreement shall be without prejudice to the obligations assumed by the Republic of Serbia or the European Union on the basis of international treaties and agreements in accordance with generally accepted principles of international law and shall be without prejudice to their application. Article 13 Competent authorities 1. The competent authority for the implementation of this Agreement in the Republic of Serbia shall be the Ministry in charge of Internal Affairs. 2. The competent authority of the European Union for the implementation of this Agreement shall be the Agency. Article 14 Entry into force, duration, suspension and termination 1. This Agreement shall be approved by the Parties in accordance with their own internal legal procedures. 2. This Agreement shall enter into force the first day of the second month following the date on which the Parties have notified each other of the completion of the internal legal procedures referred to in paragraph 1. 3. This Agreement may be suspended or terminated by written agreement between the Parties or unilaterally by either Party. In the latter case, the Party wishing to suspend or terminate this Agreement shall notify in writing the other Party thereof through diplomatic channels. The suspension shall take effect on the tenth working day after receiving notification. The termination shall take effect on the first day of the second month following the month notification was given. 4. Notifications made in accordance with this Article shall be sent, in the case of the European Union, to the General Secretariat of the Council of the European Union and, in the case of the Republic of Serbia, to the Ministry of Foreign Affairs of the Republic of Serbia. Article 15 Languages This Agreement shall be drawn up in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Serbian languages, each of these texts being equally authentic. Съставено в Белград на осемнадесети и в Скопие на деветнадесети ноември две хиляди и деветнадесета година. Hecho en Belgrado, el dieciocho, y en Skopie, el diecinueve de noviembre de dos mil diecinueve. V Bělehradě dne osmnáctého a ve Skopji dne devatenáctého listopadu dva tisíce devatenáct. Udfærdiget i Beograd den attende og i Skopje den nittende november to tusind og nitten. Geschehen zu Belgrad am achtzehnten November und zu Skopje am neunzehnten November zweitausendneunzehn. Kahe tuhande üheksateistkümnenda aasta novembrikuu kaheksateistkümnendal päeval Belgradis ja üheksateistkümnendal päeval Skopjes. Έγινε στο Βελιγράδι στις δεκαοκτώ και στα Σκόπια στις δεκαεννέα Νοεμβρίου δύο χιλιάδες δεκαεννέα. Done at Belgrade on the eighteenth day and at Skopje on the nineteenth day of November in the year two thousand and nineteen. Fait à Belgrade, le dix-huit novembre deux mille dix-neuf, et à Skopje, le dix-neuf novembre deux mille dix-neuf. Sastavljeno u Beogradu osamnaestog studenoga i u Skopju devetnaestog studenoga godine dvije tisuće devetnaeste. Fatto a Belgrado, addì diciotto e a Skopje, addì diciannove novembre duemiladiciannove. Belgradā, divi tūkstoši deviņpadsmitā gada astoņpadsmitajā novembrī, un Skopjē, deviņpadsmitajā novembrī. Priimta Belgrade du tūkstančiai devynioliktų metų lapkričio aštuonioliktą dieną ir Skopjėje du tūkstančiai devynioliktų metų lapkričio devynioliktą dieną. Kelt Belgrádban, a kétezer-tizenkilencedik év november havának tizennyolcadik napján és Szkopjében, a kétezer-tizenkilencedik év november havának tizenkilencedik napján. Magħmul f'Belgrad fit-tmintax-il jum u fi Skopje fid-dsatax-il jum ta’ Novembru fis-sena elfejn u dsatax. Gedaan te Belgrado op achttien november en te Skopje op negentien november tweeduizend negentien. Sporządzono w Belgradzie dnia osiemnastego listopada i w Skopje dnia dziewiętnastego listopada roku dwa tysiące dziewiętnastego. Feito em Belgrado, em dezoito, e em Skopje, em dezanove de novembro de dois mil e dezanove. Întocmit la Belgrad la optsprezece și la Skopje la nouăsprezece noiembrie două mii nouăsprezece. V Belehrade osemnásteho a v Skopje devätnásteho novembra dvetisícdevätnásť. V Beogradu, dne osemnajstega novembra, in v Skopju, dne devetnajstega novembra leta dva tisoč devetnajst. Tehty Belgradissa kahdeksantenatoista päivänä ja Skopjessa yhdeksäntenätoista päivänä marraskuuta vuonna kaksituhattayhdeksäntoista. Som skedde i Belgrad den artonde november och i Skopje den nittonde november år tjugohundranitton. Потписано у Београду осамнаестог новембра и у Скопљу деветнаестог новембра две хиљаде деветнаесте године. (1) OJ L 334, 19.12.2007, p. 46. (*1) This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence. (2) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1). (3) Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1). (4) OJ L 295, 21.11.2018, p. 39. (5) OJ L 119, 4.5.2016, p. 1. (6) OJ L 119, 4.5.2016, p. 89. (7) OJ L 8, 12.1.2001, p. 1. JOINT DECLARATION CONCERNING ARTICLE 2(b) The Parties take note that the European Border and Coast Guard Agency will support the Republic of Serbia to control efficiently its border with any country that is not a member of the European Union by other means than deployments of European Border and Coast Guard teams with executive powers. JOINT DECLARATION ON STATUS AND DELIMITATION OF THE TERRITORIES The status and delimitation under international law of the territory of Serbia and the Member States of the European Union are in no way affected either by this Agreement or by any act accomplished in its implementation by the Parties or on their behalf, including the establishment of operational plans or the participation in cross-border operations. JOINT DECLARATION WITH REGARD TO ICELAND, NORWAY, SWITZERLAND AND LIECHTENSTEIN The Parties take note of the close relationship between the European Union and Norway, Iceland, Switzerland and Liechtenstein, particularly by virtue of the Agreements of 18 May 1999 and 26 October 2004 concerning the association of those countries with the implementation, application and development of the Schengen acquis. In such circumstances it is desirable that the authorities of Norway, Iceland, Switzerland and Liechtenstein, on the one hand, and the Republic of Serbia, on the other hand, conclude, without delay, bilateral agreements on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia in terms similar to those of this Agreement.

Summary: Status Agreement between the European Union and Serbia on actions carried out by the European Border and Coast Guard Agency in Serbia Status Agreement between the European Union and Serbia on actions carried out by the European Border and Coast Guard Agency in Serbia SUMMARY OF: Status Agreement between the European Union and Serbia on actions carried out by the European Border and Coast Guard Agency in Serbia Decision (EU) 2020/865 on the conclusion of the Status Agreement between the European Union and Serbia on actions carried out by the European Border and Coast Guard Agency in Serbia WHAT IS THE AIM OF THE DECISION AND AGREEMENT? The agreement covers cooperation between the European Border and Coast Guard Agency, set up under Regulation (EU) 2019/1896 (see summary), and the Republic of Serbia when the agency operates on the country’s territory. The decision approves the agreement between Serbia and the European Union (EU). KEY POINTS An action*: may be proposed to Serbia by the agency or requested by Serbia; requires the consent of both Serbia and the agency. A joint operational plan, agreed by the agency and Serbia, is needed for each joint operation* or rapid border intervention* on Serbian territory. It sets out in detail elements such as: organisation, procedures, coordination, finance and evaluation; description and assessment of the situation with operational objectives; cooperation with other agencies, non-EU countries and international organisations; respect of fundamental rights, including personal data protection. Members of the action team: have the authority and powers necessary for border control and return operations; respect Serbia’s national legislation; operate under instructions from, and in the presence of, Serbian border guards or other police officers, and may express their opinion on those instructions to the national authorities; wear their own uniform with visible personal identification and insignia of the EU and the agency; may, subject to certain conditions, carry and use weapons, ammunition and equipment; can request information in national databases necessary for their work; enjoy privileges and immunities, but immunity from criminal, civil and administrative jurisdiction may be waived under certain conditions; receive an accreditation document, issued by the agency and Serbia, confirming their identity and right to work under the operational plan. The agency’s executive director or Serbia may suspend or terminate an action, after informing the other in writing, if an operational plan is not being properly implemented. Processing of personal data may only take place when it is necessary for Serbia, the agency or participating EU Member States to implement the agreement. Serbia may keep a record of collected and used data for 3 years. The competent Serbian authority (the ministry in charge of internal affairs) and the agency examine together all issues arising from the agreement. Any disputes on the interpretation or application of the agreement are settled by the ministry and the European Commission. One or both parties may suspend or terminate the agreement in writing. Joint declarations to the agreement state: the agency will, without deploying its own teams, support Serbia in controlling its borders with non-EU countries; the agreement does not affect the status and delimitation under international law of Serbian or EU territory; Iceland, Liechtenstein, Norway, Serbia and Switzerland are urged to conclude without delay bilateral agreements similar to that between Serbia and the EU. Ireland does not participate in the agreement and Denmark has 6 months to decide whether to do so or not. The agreement does not: extend the scope of the EU–Serbia Readmission Agreement (see summary); cover Kosovo*. DATE OF ENTRY INTO FORCE The agreement entered into force on 1 May 2021. BACKGROUND This is the third agreement between the EU and a partner country. Previous ones were signed with Albania in 2018 and Montenegro in 2019. Cooperation with non-EU countries is an important component of European integrated border management. In 2019, the EU adopted a new regulation (Regulation (EU) 2019/1896) strengthening the role of the European Border and Coast Guard Agency. This enables the EU to conclude agreements and to carry out joint operations in countries beyond its immediate neighbourhood. For more information, see: Border management: EU signs agreement with Serbia on European Border and Coast Guard cooperation — press release (European Commission). KEY TERMS Action. A joint operation, rapid border intervention or return operation. Joint operation. An action to tackle illegal immigration or cross-border crime, or provide technical and operational assistance at Serbia’s borders with Member States (Bulgaria, Croatia, Hungary and Romania). Rapid border intervention. An action responding quickly to specific and disproportionate challenges on Serbia’s borders with a Member State. MAIN DOCUMENTS Status Agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (OJ L 202, 25.6.2020, pp. 3–15). Council Decision (EU) 2020/865 of 26 May 2020 on the conclusion of the Status Agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (OJ L 202, 25.6.2020, pp. 1–2). RELATED DOCUMENTS Information relating to the entry into force of the Agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (OJ L 101, 23.3.2021, p. 1). Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, pp. 1–131). * The designation is in line with UNSCR 1244/1999 and the ICJ opinion on the Kosovo declaration of independence. last update 06.12.2021