DAC8 Article 8ad — held amending text

DAC8 Article 8ad — held amending text ‘Article 8ad Scope and conditions of mandatory automatic exchange of information reported by Reporting Crypto-Asset Service Providers 1.

Each Member State shall take the necessary measures to require Reporting Crypto-Asset Service Providers to fulfil the reporting requirements and carry out the due diligence procedures laid down in Sections II and III of Annex VI, respectively.

Each Member State shall also ensure the effective implementation of, and compliance with, such measures in accordance with Section V of Annex VI.

2.

Pursuant to the applicable reporting requirements and due diligence procedures contained in Sections II and III of Annex VI, respectively, the competent authority of a Member State where the reporting referred to in paragraph 1 of this Article takes place shall, by means of automatic exchange, and within the time limit laid down in paragraph 6 of this Article, communicate the information specified in paragraph 3 of this Article to the competent authorities of the Member States concerned in accordance with the practical arrangements adopted pursuant to Article 21.

3.

The competent authority of a Member State shall communicate the following information regarding each Reportable Person:

(a) the name, address, Member State(s) of residence, TIN(s) and, in the case of an individual, date and place of birth of each Reportable User and, in the case of any Entity that, after application of the due diligence procedures laid down in Section III of Annex VI is identified as having one or more Controlling Persons that is a Reportable Person, the name, address, Member State(s) of residence and TIN(s) of the Entity and the name, address, Member State(s) of residence, TIN(s) and date and place of birth of each Controlling Person of the Entity that is a Reportable Person, as well as the role(s) by virtue of which each such Reportable Person is a Controlling Person of the Entity; notwithstanding the first subparagraph of this point, where the Reporting Crypto-Asset Service Provider relies on direct confirmation of the identity and residence of the Reportable Person through an Identification Service made available by a Member State or the Union to ascertain the identity and tax residence of the Reportable Person, the information to be communicated to the Member State of issuance of the Identification Service identifier regarding the Reportable Person shall include the name, the Identification Service identifier and the Member State of issuance, as well as the role(s) by virtue of which each Reportable Person is a Controlling Person of the Entity;  (b) the name, address, TIN and, if available, the individual identification number referred to in paragraph 7 and the global legal entity identifier of the Reporting Crypto-Asset Service Provider;

(c) for each type of Reportable Crypto-Asset with respect to which the Reporting Crypto-Asset Service Provider has effectuated Reportable Transactions during the relevant calendar year or other appropriate reporting period, where relevant:

(i) the full name of the type of Reportable Crypto-Asset; (ii) the aggregate gross amount paid, the aggregate number of units and the number of Reportable Transactions in respect of acquisitions against Fiat Currency; (iii) the aggregate gross amount received, the aggregate number of units and the number of Reportable Transactions in respect of disposals against Fiat Currency; (iv) the aggregate fair market value, the aggregate number of units and the number of Reportable Transactions in respect of acquisitions against other Reportable Crypto-Assets;

(v) the aggregate fair market value, the aggregate number of units and the number of Reportable Transactions in respect of disposals against other Reportable Crypto-Assets; (vi) the aggregate fair market value, the aggregate number of units and the number of Reportable Retail Payment Transactions; (vii) the aggregate fair market value, the aggregate number of units and the number of Reportable Transactions, and subdivided by transfer type where known by the Reporting Crypto-Asset Service Provider, in respect of Transfers to the Reportable User not covered by points (ii) and (iv); (viii)the aggregate fair market value, the aggregate number of units and the number of Reportable Transactions, and subdivided by transfer type where known by the Reporting Crypto-Asset Service Provider, in respect of Transfers by the Reportable User not covered by points (iii), (v) and (vi); and (ix) the aggregate fair market value, as well as the aggregate number of units of Transfers effectuated by the Reporting Crypto-Asset Service Provider to distributed ledger addresses referred to in Regulation (EU) 2023/1114 not known to be associated with a virtual asset service provider or financial institution.

For the purposes of point (c)(ii) and (iii), the amount paid or received shall be communicated in the Fiat Currency in which it was paid or received.

In case the amounts were paid or received in multiple Fiat Currencies, the amounts shall be communicated in a single Fiat Currency, converted at the time of each Reportable Transaction in a manner that is consistently applied by the Reporting Crypto-Asset Service Provider.

For the purposes of point (c)(iv) to (ix), the fair market value shall be determined and communicated in a single Fiat Currency, valued at the time of each Reportable Transaction in a manner that is consistently applied by the Reporting Crypto-Asset Service Provider.

The information communicated shall specify the Fiat Currency in which each amount is reported.

4.

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).

5.

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

6.

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.

7.

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.

Member States shall lay down rules pursuant to which a Crypto-Asset Operator shall register with the competent authority of a single Member State in accordance with the rules laid down in Section V, paragraph F, of Annex VI.

Member States shall take the necessary measures to require that a Crypto-Asset Operator whose registration has been revoked in accordance with Section V, subparagraph F(7), of Annex VI can be permitted to register again only if it provides to the authorities of a Member State concerned appropriate assurance as regards its commitment to comply with the reporting requirements within the Union, including any outstanding unfulfilled reporting requirements.

8.

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.

9.

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).

10.

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.

11.

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).  A Member State requesting the measure referred to in the first subparagraph shall send a reasoned request to the Commission.

If the Commission considers that it does not have all the information necessary for the appraisal of the request, it shall contact the Member State concerned within two months of receipt of the request and specify what additional information is required.

Once the Commission has all the information it considers necessary, it shall, within one month, notify the requesting Member State and it shall submit the relevant information to the Committee referred to in Article 26(1).

When acting on its own initiative, the Commission shall adopt an implementing act as referred to in the first subparagraph only in respect of a competent authority agreement with a 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, concluded by a Member State.

When determining whether information is corresponding information within the meaning of the first subparagraph in relation to Reportable Transactions, the Commission shall take into due account the extent to which the regime on which such information is based corresponds to that set out in Annex VI, in particular with regard to:

(a) the definitions of Reporting Crypto-Asset Service Provider, Reportable User, and Reportable Transaction;

(b) the procedures applicable for the purpose of identifying Reportable Users;

(c) the reporting requirements;

(d) the rules and administrative procedures that non-Union jurisdictions are to have in place to ensure effective implementation of, and compliance with, the due diligence procedures and reporting requirements set out in that regime.

The procedure set out in this paragraph shall also apply for determining that the information is no longer corresponding within the meaning of Section IV, subparagraph F(5), of Annex VI.

12.

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.’ ;

(7) Article 16 is amended as follows:

(a) in paragraph 1, the first subparagraph is replaced by the following: ‘1.

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.’ ;

(b) in paragraph 2, the following subparagraph is added: ‘The competent authority that receives information and documents may also use the received information and documents without the permission referred to in the first subparagraph of this paragraph for any purpose that is covered by an act based on Article 215 of the Treaty on the Functioning of the European Union and share them for such purpose with the competent authority in charge of restrictive measures in the Member State concerned.’;

(c) paragraph 3 is replaced by the following: ‘3.

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.’ ;

(8) in Article 18, the following paragraph is added: ‘4.

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 8ad.’ ;

(9) in Article 20, paragraph 5 is replaced by the following: ‘5.

The Commission shall adopt implementing acts laying down standard computerised forms, including the linguistic arrangements, in the following cases:  (a) for the automatic exchange of information on advance cross-border rulings and advance pricing arrangements pursuant to Article 8a before 1 January 2017;

(b) for the automatic exchange of information on reportable cross-border arrangements pursuant to Article 8ab before 30 June 2019;

(c) for the automatic exchange of information on Reportable Crypto-Assets pursuant to Article 8ad before 30 June 2025.

Those standard computerised forms shall not exceed the components for the exchange of information listed in Articles 8a(6), 8ab(14) and 8ad(3), and such other related fields which are linked to those components which are necessary to achieve the objectives of Articles 8a, 8ab and 8ad, respectively.

The linguistic arrangements referred to in the first subparagraph of this paragraph shall not preclude Member States from communicating the information referred to in Articles 8a and 8ab in any of the official languages of the Union.

However, those linguistic arrangements may provide that the key elements of such information shall also be sent in another official language of the Union.

The implementing acts referred to in this paragraph shall be adopted in accordance with the procedure referred to in Article 26(2).’ ;

(10) Article 21 is amended as follows:

(a) paragraph 5 is replaced by the following: ‘5.

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.

The Commission shall by 31 December 2019 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 8ab(13), (14) and (16) shall be recorded in order to satisfy the automatic exchange provided for in those paragraphs.

The Commission shall by 31 December 2026 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 8ad(2) and (3) shall be recorded in order to satisfy the automatic exchange provided for in those paragraphs.

The competent authorities of all Member States shall have access to the information recorded in that directory.

With respect to the information to be communicated in the framework of Article 8ad(2) and (3), the competent authority of a Member State shall, however, have access only to information pertaining to Reportable Users and Reportable Persons resident in that Member State.

The Commission shall also have access to the information recorded in that directory, however with the limitations set out in Articles 8a(8), 8ab(17) and 8ad(5), and only for the purpose of collecting statistics in accordance with paragraph 7 of this Article.

The Commission shall, by means of implementing acts, adopt the necessary practical arrangements.

Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).

Until that secure central directory is operational, the automatic exchange provided for in Article 8a(1) and (2), Article 8ab(13), (14) and (16) and Article 8ad(2) and (3) shall be carried out in accordance with paragraph 1 of this Article and the applicable practical arrangements.’ ;

(b) the following paragraph is added: ‘8.

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.

The Commission shall develop the technical parameters of the tool referred to in the first subparagraph by means of implementing acts.

Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).’ ;

(11) in Article 22, the following paragraphs are added: ‘3.

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.

4.

Member States shall endeavour to ensure that a reporting entity is allowed to obtain confirmation by electronic means of the validity of the information on the TIN of any taxpayer subject to the exchange of information under Articles 8 to 8ad.

The confirmation of the information on the TIN may be requested only for the purposes of validation of the correctness of data referred to in Articles 8(1), 8(3a), 8a(6), 8aa(3), 8ab(14), 8ac(2) and 8ad(3).’ ;

(12) in Article 23, paragraph 3 is replaced by the following: ‘3.

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).’ ;

(13) Article 25 is amended as follows:

(a) paragraph 3 is replaced by the following: ‘3.

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.’ ;

(b) in paragraph 4, the first subparagraph is replaced by the following: ‘4.

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:

(a) informs each individual concerned that information relating to that individual will be collected and transferred in accordance with this Directive; and (b) provides to each individual concerned all information that the individual is entitled to from the data controller in sufficient time for that individual to exercise his or her data protection rights and, in any case, before the information is reported.’ ;

(14) Article 25a is replaced by the following:

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