Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC

To facilitate the exchange of information referred to in paragraph 3 of this Article, the Commission shall, by means of implementing acts, adopt the necessary practical arrangements, including measures to standardise the communication of the information set out in that paragraph, as part of the procedure for establishing the standard computerised form provided for in Article 20(5). Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

The Commission shall not have access to information referred to in paragraph 3, points (a) and (b).

The communication pursuant to paragraph 3 of this Article shall take place using the standard computerised form referred to in Article 20(5) within nine months following the end of the calendar year to which the reporting requirements applicable to Reporting Crypto-Asset Service Providers relate. The first information shall be communicated for the relevant calendar year or other appropriate reporting period as from 1 January 2026.

For the purpose of complying with the reporting requirements referred to in paragraph 1, each Member State shall lay down the necessary rules to require a Crypto-Asset Operator to register within the Union. The competent authority of the Member State of registration shall allocate an individual identification number to such Crypto-Asset Operator.

Paragraph 7 of this Article shall not apply to Crypto-Asset Service Providers within the meaning of Section IV, subparagraph B(1), of Annex VI.

The Commission shall, by means of implementing acts, lay down the practical and technical arrangements necessary for the registration and identification of Crypto-Asset Operators. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

The Commission shall, by 31 December 2025, establish a Crypto-Asset Operator register where information to be communicated in accordance with Section V, subparagraph F(2), of Annex VI shall be recorded. That Crypto-Asset Operator register shall be available to the competent authorities of all Member States.

The Commission shall, by means of implementing acts, following a reasoned request by any Member State or on its own initiative, determine whether the information that is required to be automatically exchanged pursuant to an agreement between competent authorities of the Member State concerned and a non-Union jurisdiction corresponds to that specified in Section II, paragraph B, of Annex VI, within the meaning of Section IV, subparagraph F(5), of Annex VI. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

Notwithstanding paragraph 11, where an international standard on the reporting and automatic exchange of information on crypto-assets is determined to be a minimum standard or equivalent, any determination by the Commission, by means of implementing acts, on whether the information that is required to be automatically exchanged pursuant to the implementation of that standard and the competent authority agreement between the Member State(s) concerned and a non-Union jurisdiction is corresponding information shall no longer be required. That information shall be deemed to correspond to the information that is required under this Directive, provided that there is a competent authority agreement in place between the competent authorities of all Member States concerned and the non-Union jurisdiction that requires the automatic exchange of information on an individual or Entity that is a customer of a Reporting Crypto-Asset Service Provider for the purpose of carrying out Reportable Transactions. The corresponding provisions in this Article and in Annex VI shall no longer apply for such purposes.

Each Member State shall take the necessary measures to require the filing constituent entity of an MNE group to use the standard template set out in Section IV of Annex VII to this Directive to fulfil the filing obligations under Article 44 of Directive (EU) 2022/2523.

The competent authority of a Member State which has received the Top-up tax information return filed by the ultimate parent entity or designated filing entity, as referred to in Article 44(3), points (a) and (b), of Directive (EU) 2022/2523, shall communicate, by means of automatic exchange and in accordance with the following dissemination approach, the following:

The competent authority of a Member State shall communicate the Top-up tax information return received pursuant to paragraph 2 and that communication shall take place no later than 3 months after the filing deadline for the Reporting fiscal year.

The competent authority of a Member State shall communicate the Top-up tax information return received after the filing deadline, and that communication shall take place no later than 3 months after the date on which it is received.

The Commission shall adopt, by means of implementing acts, the necessary practical arrangements to facilitate the communication as referred to in paragraph 2 of this Article. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

The Commission shall not have access to the information referred to in paragraph 2, points (a) to (c).

The communication of information, as referred to in paragraphs 2, 3 and 4 of this Article, shall take place using the standard computerised format referred to in Article 20(4).

The competent authority of each Member State shall communicate the information referred to in Article 1(1) to the competent authority of any other Member State concerned, in any of the following circumstances:

The competent authorities of each Member State may communicate, by spontaneous exchange, to the competent authorities of the other Member States any information of which they are aware and which may be useful to the competent authorities of the other Member States.

Where the competent authority of a Member State has reason to believe that the information in a Top-up tax information return filed by an ultimate parent entity or designated filing entity that is located in the jurisdiction of the other Member State, communicated under Article 8ae, requires the correction of manifest errors, it shall, without undue delay, notify the competent authority of the other Member State. If the notified competent authority agrees that the information in the Top-up tax information return requires correction, it shall take, without undue delay, appropriate measures to obtain a corrected Top-up tax information return from the concerned ultimate parent entity or designated filing entity. It shall communicate, without undue delay, the corrected Top-up tax information return with all competent authorities for which such information is subject to exchange in accordance with this Directive.

When the competent authority of a Member State has received a notification from one or more constituent entities located in its Member State that the Top-up tax information return for such constituent entities was to be filed by the ultimate parent entity or designated filing entity located in another Member State, but the information included in the Top-up tax information return was not communicated within the deadlines specified in Article 8ae(3) or Article 27d(3) and (4), it shall, without undue delay, notify the other competent authority that the information has not been received. The notified competent authority shall, without undue delay, determine the reason for not communicating the concerned Top-up tax information return and shall inform the competent authority within 1 month of receipt of the notification, including the expected exchange date for the Top-up tax information return, where relevant. The expected exchange date shall be set for a date no later than 3 months from the date of the receipt of notification of the missing exchange.

The competent authority to which information referred to in Article 9(1) becomes available, shall forward that information to the competent authority of any other Member State concerned as quickly as possible, and no later than one month after it becomes available.

The competent authority to which information is communicated pursuant to Article 9 shall confirm, if possible by electronic means, the receipt of the information to the competent authority which provided the information immediately and in any event no later than seven working days.

With a view to exchanging the information referred to in Article 1(1), the competent authority of a Member State may request the competent authority of another Member State that officials authorised by the former and in accordance with the procedural arrangements laid down by the latter:

Where officials of the requesting authority are present during administrative enquiries, or participate in the administrative enquiries through the use of electronic means of communication, they may interview individuals and examine records subject to the procedural arrangements laid down by the requested Member State.

Officials authorised by the requesting Member State present in another Member State in accordance with paragraph 1 shall at all times be able to produce written authority stating their identity and their official capacity.

Where two or more Member States agree to conduct simultaneous controls, in their own territory, of one or more persons of common or complementary interest to them, with a view to exchanging the information thus obtained, paragraphs 2, 3 and 4 shall apply.

The competent authority in each Member State shall identify independently the persons for whom it intends to propose a simultaneous control. It shall notify the competent authority of the other Member States concerned of any cases for which it proposes a simultaneous control, giving reasons for its choice.

The competent authority of each Member State concerned shall decide whether it wishes to take part in simultaneous controls. It shall confirm its agreement or communicate its reasoned refusal to the authority that proposed a simultaneous control within 60 days of receiving the proposal.

The competent authority of each Member State concerned shall appoint a representative with responsibility for supervising and coordinating the control operation.

The competent authority of one or more Member States may request the competent authority of another Member State (or other Member States) to conduct a joint audit. The requested competent authorities shall respond to the request for a joint audit within 60 days of the receipt of the request. The requested competent authorities may reject a request for a joint audit by the competent authority of a Member State on justified grounds.

Joint audits shall be conducted in a pre-agreed and coordinated manner, including linguistic arrangements, by the competent authorities of the requesting and the requested Member States, and in accordance with the laws and procedural requirements of the Member State where the activities of a joint audit take place. In each Member State where the activities of a joint audit take place, the competent authority of that Member State shall appoint a representative with responsibility for supervising and coordinating the joint audit in that Member State.

Without prejudice to paragraph 2, a Member State where the activities of the joint audit take place shall take the necessary measures to:

Where competent authorities of two or more Member States conduct a joint audit, they shall endeavour to agree on the facts and circumstances relevant to the joint audit and endeavour to reach an agreement on the tax position of the audited person(s) based on the results of the joint audit. The findings of the joint audit shall be incorporated in a final report. Issues on which the competent authorities agree shall be reflected in the final report and be taken into account in the relevant instruments issued by the competent authorities of the participating Member States following that joint audit.

The audited person(s) shall be informed of the outcome of the joint audit, including a copy of the final report within 60 days of the issuance of the final report.

At the request of the competent authority of a Member State, the competent authority of another Member State shall, in accordance with the rules governing the notification of similar instruments in the requested Member State, notify the addressee of any instruments and decisions which emanate from the administrative authorities of the requesting Member State and concern the application in its territory of legislation on taxes covered by this Directive.

Requests for notification shall indicate the subject of the instrument or decision to be notified and shall specify the name and address of the addressee, together with any other information which may facilitate identification of the addressee.

The requested authority shall inform the requesting authority immediately of its response and, in particular, of the date of notification of the instrument or decision to the addressee.

The requesting authority shall only make a request for notification pursuant to this Article when it is unable to notify in accordance with the rules governing the notification of the instruments concerned in the requesting Member State, or where such notification would give rise to disproportionate difficulties. The competent authority of a Member State may notify any document by registered mail or electronically directly to a person within the territory of another Member State.

Where a competent authority provides information pursuant to Articles 5 or 9, it may request the competent authority which receives the information to send feedback thereon. If feedback is requested, the competent authority which received the information shall, without prejudice to the rules on tax secrecy and data protection applicable in its Member State, send feedback to the competent authority which provided the information as soon as possible and no later than three months after the outcome of the use of the requested information is known. The Commission shall determine the practical arrangements in accordance with the procedure referred to in Article 26(2).

Member States’ competent authorities shall send feedback on the automatic exchange of information to the other Member States concerned once a year, in accordance with practical arrangements agreed upon bilaterally.

Member States shall, together with the Commission, examine and evaluate administrative cooperation pursuant to this Directive and shall share their experience, with a view to improving such cooperation and, where appropriate, drawing up rules in the fields concerned.

Member States may, together with the Commission, produce guidelines on any aspect deemed necessary for sharing best practices and sharing experience.

Information communicated between Member States in any form pursuant to this Directive shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under the national law of the Member State which received it. Such information may be used for the assessment, administration and enforcement of the national law of Member States concerning the taxes referred to in Article 2 as well as VAT, other indirect taxes, customs duties and anti-money laundering and countering the financing of terrorism.

With the permission of the competent authority of the Member State communicating information pursuant to this Directive, and only in so far as this is allowed under the national law of the Member State of the competent authority receiving the information, information and documents received pursuant to this Directive may be used for other purposes than those referred to in paragraph 1. Such permission shall be granted if the information can be used for similar purposes in the Member State of the competent authority communicating the information.

Where a competent authority of a Member State considers that information which it has received from the competent authority of another Member State is likely to be useful for the purposes referred to in paragraph 1 to the competent authority of a third Member State, it may transmit that information to the latter competent authority, provided that the transmission is in accordance with the rules and procedures laid down in this Directive. It shall inform the competent authority of the Member State from which the information originates about its intention to share that information with a third Member State. The Member State of origin of the information may oppose such a sharing of information within 15 calendar days of receipt of the communication from the Member State wishing to share the information.

Permission to use information pursuant to paragraph 2, which has been transmitted pursuant to paragraph 3, may be granted only by the competent authority of the Member State from which the information originates.

Information, reports, statements and any other documents, or certified true copies or extracts thereof, obtained by the requested authority and communicated to the requesting authority in accordance with this Directive may be invoked as evidence by the competent bodies of the requesting Member State on the same basis as similar information, reports, statements and any other documents provided by an authority of that Member State.

Notwithstanding paragraphs 1 to 4 of this Article, information communicated between Member States pursuant to Article 8aa shall be used for the purposes of assessing high-level transfer-pricing risks and other risks related to base erosion and profit shifting, including assessing the risk of non-compliance by members of the MNE Group with applicable transfer-pricing rules, and where appropriate for economic and statistical analysis. Transfer-pricing adjustments by the tax authorities of the receiving Member State shall not be based on the information exchanged pursuant to Article 8aa. Notwithstanding the above, there is no prohibition on using the information communicated between Member States pursuant to Article 8aa as a basis for making further enquiries into the MNE Group's transfer-pricing arrangements or into other tax matters in the course of a tax audit, and, as a result, appropriate adjustments to the taxable income of a Constituent Entity may be made.

A requested authority in one Member State shall provide a requesting authority in another Member State with the information referred to in Article 5 provided that the requesting authority has exhausted the usual sources of information which it could have used in the circumstances for obtaining the information requested, without running the risk of jeopardising the achievement of its objectives.

This Directive shall impose no obligation upon a requested Member State to carry out enquiries or to communicate information, if it would be contrary to its legislation to conduct such inquiries or to collect the information requested for its own purposes.

The competent authority of a requested Member State may decline to provide information where the requesting Member State is unable, for legal reasons, to provide similar information.

The provision of information may be refused where it would lead to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information whose disclosure would be contrary to public policy.

The requested authority shall inform the requesting authority of the grounds for refusing a request for information.

If information is requested by a Member State in accordance with this Directive, the requested Member State shall use its measures aimed at gathering information to obtain the requested information, even though that Member State may not need such information for its own tax purposes. That obligation is without prejudice to paragraphs 2, 3 and 4 of Article 17, the invocation of which shall in no case be construed as permitting a requested Member State to decline to supply information solely because it has no domestic interest in such information.

In no case shall Article 17(2) and (4) be construed as permitting a requested authority of a Member State to decline to supply information solely because this information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.

Notwithstanding paragraph 2, a Member State may refuse the transmission of requested information where such information concerns taxable periods prior to 1 January 2011 and where the transmission of such information could have been refused on the basis of Article 8(1) of Directive 77/799/EEC if it had been requested before 11 March 2011.

The competent authority of each Member State shall put in place an effective mechanism to ensure the use of information acquired through the reporting or the exchange of information under Articles 8 to 8ae.

Requests for information and for administrative enquiries pursuant to Article 5 and their replies, acknowledgements, requests for additional background information, inability or refusal pursuant to Article 7 shall, as far as possible, be sent using a standard form adopted by the Commission in accordance with the procedure referred to in Article 26(2).

The standard form referred to in paragraph 1 shall include at least the following information to be provided by the requesting authority:

Spontaneous information and its acknowledgement pursuant to Articles 9 and 10 respectively, requests for administrative notifications pursuant to Article 13, feedback information pursuant to Article 14 and communications pursuant to Article 16(2) and (3) and Article 24(2) shall be sent using the standard forms adopted by the Commission in accordance with the procedure referred to in Article 26(2).

The automatic exchange of information pursuant to Articles 8, 8ac and 8ae shall be carried out using a standard computerised format aimed at facilitating such automatic exchange, adopted by the Commission in accordance with the procedure referred to in Article 26(2).

The Commission shall adopt implementing acts laying down standard computerised forms, including the linguistic arrangements, in the following cases:

The automatic exchange of information on the country-by-country report pursuant to Article 8aa shall be carried out using the standard form provided in Tables 1, 2 and 3 of Section III of Annex III. The Commission shall, by means of implementing acts, adopt the linguistic arrangements for that exchange by 31 December 2016. They shall not preclude Member States from communicating information referred to in Article 8aa in any of the official and working languages of the Union. However, those linguistic arrangements may provide that the key elements of such information also be sent in another official language of the Union. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

Information communicated pursuant to this Directive shall, as far as possible, be provided by electronic means using the CCN network.

The Commission shall be responsible for whatever development of the CCN network is necessary to permit the exchange of that information between Member States and for ensuring the security of the CCN network.

Persons duly accredited by the Security Accreditation Authority of the Commission may have access to that information only in so far as it is necessary for the care, maintenance and development of the directory referred to in paragraph 5 and of the CCN network.

Requests for cooperation, including requests for notification, and attached documents may be made in any language agreed between the requested and requesting authority.

The Commission shall by 31 December 2017 develop and provide with technical and logistical support a secure Member State central directory on administrative cooperation in the field of taxation where information to be communicated in the framework of Article 8a(1) and (2) shall be recorded in order to satisfy the automatic exchange provided for in those paragraphs.

Information communicated pursuant to Article 8aa(2) shall be provided by electronic means using the CCN network. The Commission shall, by means of implementing acts, adopt the necessary practical arrangements for the upgrading of the CCN network. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

The Commission shall develop and provide technical and logistical support for a secure central interface on administrative cooperation in the field of taxation where Member States communicate with the use of standard forms pursuant to Article 20(1) and (3). The competent authorities of all Member States shall have access to that interface. For the purpose of collecting statistics, the Commission shall have access to information about the exchanges recorded to the interface and which can be extracted automatically. The Commission shall have only access to anonymous and aggregated data. The access by the Commission shall be without prejudice to the obligation of Member States to provide statistics on exchanges of information in accordance with Article 23(4).

The Commission shall provide Member States with a tool allowing an electronic and automated verification of the correctness of the TIN provided by a reporting entity or a taxpayer for the purposes of the automatic exchange of information.

Member States shall take all necessary measures to:

The Commission shall communicate to each Member State any general information concerning the implementation and application of this Directive which it receives and which it is able to provide.

Member States shall retain the records of the information received through the automatic exchange of information pursuant to Articles 8 to 8ad for no longer than necessary but in any event not less than five years from its date of receipt to achieve the purposes of this Directive.

Member States and the Commission shall examine and evaluate the functioning of the administrative cooperation provided for in this Directive.

Member States shall communicate to the Commission any relevant information necessary for the evaluation of the effectiveness of administrative cooperation in accordance with this Directive in combating tax evasion and tax avoidance.

Each Member State shall monitor and assess, in relation to itself, the effectiveness of administrative cooperation in accordance with this Directive, including in combating tax evasion and tax avoidance, and shall communicate the results of its assessment to the Commission once a year. The Commission shall, by means of implementing acts, adopt the form and the conditions of communication for that yearly assessment. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

The Commission shall, in accordance with the procedure referred to in Article 26(2), determine a list of statistical data which shall be provided by the Member States for the purposes of evaluation of this Directive.

Information communicated to the Commission pursuant to this Directive shall be kept confidential by the Commission in accordance with the provisions applicable to Union authorities and may not be used for any purposes other than those required to determine whether and to what extent Member States comply with this Directive.

Information communicated to the Commission by a Member State under Article 23, as well as any report or document produced by the Commission using such information, may be transmitted to other Member States. Such transmitted information shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under the national law of the Member State which received it.

Where the competent authority of a Member State receives from a third country information that is foreseeably relevant to the administration and enforcement of the domestic laws of that Member State concerning the taxes referred to in Article 2, that authority may, in so far as this is allowed pursuant to an agreement with that third country, provide that information to the competent authorities of Member States for which that information might be useful and to any requesting authorities.

Competent authorities may communicate, in accordance with their domestic provisions on the communication of personal data to third countries, information obtained in accordance with this Directive to a third country, provided that all of the following conditions are met:

All exchange of information pursuant to this Directive shall be subject to Regulation (EU) 2016/679 of the European Parliament and of the Council ([^E0007]). However, Member States shall, for the purposes of the correct application of this Directive, restrict the scope of the obligations and rights provided for in Article 13, Article 14(1) and Article 15, of Regulation (EU) 2016/679, to the extent required in order to safeguard the interests referred to in point (e) of Article 23(1) of that Regulation.

Regulation (EU) 2018/1725 of the European Parliament and of the Council ([^E0008]) shall apply to any processing of personal data under this Directive by the Union institutions, bodies, offices and agencies. However, for the purposes of the correct application of this Directive, the scope of the obligations and rights provided for in Article 15, Article 16(1), and Articles 17 to 21, of Regulation (EU) 2018/1725, shall be restricted to the extent required in order to safeguard the interests referred to in point (c) of Article 25(1) of that Regulation.

Reporting Financial Institutions, intermediaries, Reporting Platform Operators, Reporting Crypto-Asset Service Providers and the competent authorities of Member States shall be considered to be controllers, acting alone or jointly. When processing personal data for the purposes of this Directive, the Commission shall be considered to process the personal data on behalf of the controllers and shall comply with the requirements for processors set out in Regulation (EU) 2018/1725. The processing shall be governed by a contract within the meaning of Article 28(3) of Regulation (EU) 2016/679 and Article 29(3) of Regulation (EU) 2018/1725.

Notwithstanding paragraph 1, each Member State shall ensure that each Reporting Financial Institution or intermediary or Reporting Platform Operator or Reporting Crypto-Asset Service Provider, as the case may be, which is under its jurisdiction:

Information processed in accordance with this Directive shall be retained for no longer than is necessary to achieve the purposes of this Directive, and in any case in accordance with each data controller’s domestic rules on statute of limitations.

A Member State where a data breach occurred, shall report the data breach and any subsequent remedial action to the Commission without delay. The Commission shall inform all Member States without delay of the data breach that has been reported to it or of which it is aware and any remedial action.

Member States, assisted by the Commission, shall agree on the practical arrangements necessary for the implementation of this Article, including data breach management processes which are aligned with internationally recognised good practices and where appropriate a joint data controller agreement, a data processor – data controller agreement, or models thereof.

The Commission shall be assisted by the Committee on administrative cooperation for taxation. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council ([^E0009]).

Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Every five years after 1 January 2013, the Commission shall submit a report on the application of this Directive to the European Parliament and to the Council.

Notwithstanding the time limits for filing information on reportable cross-border arrangements as specified in Article 8ab(12), Member States may take the measures necessary to allow intermediaries and relevant taxpayers to file, by 28 February 2021, information on reportable cross-border arrangements the first step of which was implemented between 25 June 2018 and 30 June 2020.

Where Member States take measures as referred to in paragraph 1, they shall also take the measures necessary to allow:

Notwithstanding the time limit laid down in point (b) of Article 8(6), Member States may take the measures necessary to allow the communication of information referred to in Article 8(3a) that relates to the calendar year 2019 or another appropriate reporting period to take place within 12 months following the end of the calendar year 2019 or the other appropriate reporting period.

The Council, acting unanimously on a proposal from the Commission, may take an implementing decision to extend the period of deferral of the time limits set out in Article 27a by three months, provided that severe risks to public health, hindrances and economic disturbance caused by the COVID-19 pandemic continue to exist and Member States apply lockdown measures.

The proposal for a Council implementing decision shall be submitted to the Council at least one month before the expiry of the relevant deadline.

Each Member State shall take the necessary measures to require that the TIN of reported individuals or entities issued by the Member State of residence be reported by the reporting entity or reporting individual and be communicated by each Member State when explicitly required by, and pursuant to, the Articles and Annexes of this Directive.

For taxable periods starting on or after 1 January 2028, each Member State shall include, where it has been obtained by the competent authority of the Member State, the TIN of individuals and entities issued by the Member State of residence in the communication of the information referred to in Article 8a(6), points (a) and (k), as well as of reported individuals and entities in the communication of the information referred to in Article 8aa(3), point (b), and in Article 8ab(14), point (h).

The first Reporting fiscal year for which the information is to be communicated under Article 8ae is the first fiscal year beginning from 31 December 2023.

For the Member States that have elected not to apply the IIR and the UTPR pursuant to Article 50(1) of Directive (EU) 2022/2523, the first Reporting fiscal year for which the information is to be communicated under Article 8ae shall be the first fiscal year following the end of such election.

The competent authority of the Member State shall communicate the information under Article 8ae with respect to the first Reporting fiscal year no later than 6 months after the filing deadline.

In any case, Member States shall communicate the information under Article 8ae for the first time no earlier than 1 December 2026.

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive with effect from 1 January 2013.

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.