Law Approving The Protocol Of Amendment To The Convention On Mutual Administrative Assistance In Tax Matters, Done At Paris On May 27, 2010 (1) (2)

Original Language Title: Loi portant assentiment au Protocole d'amendement à la Convention concernant l'assistance administrative mutuelle en matière fiscale, fait à Paris le 27 mai 2010 (1) (2)

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28 FEBRUARY 2014. - An Act to Enact the Protocol to Amend the Convention concerning Mutual Administrative Assistance in Tax Matters, done in Paris on 27 May 2010 (1) (2)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Protocol to Amend the Convention on Mutual Administrative Assistance in Tax Matters, which was launched in Paris on 27 May 2010, will be fully implemented.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 28 February 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
Minister of Finance,
K. GEENS
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) Senate (www.senate.be):
Documents: 5-2162
Annales of the Senate: November 7, 2013
House of Representatives (www.lachambre.be):
Documents: 53-3114
Full report: 19 December 2013
(2) See the Decree of the Flemish Community/Flemish Region of 26 October 2012 (Belgian Monitor of 22 November 2012 - Ed. 2 and 29 November 2012), the Decree of the French Community of 31 May 2012 (Belgian Monitor of 11 July 2012 - Ed. 2), the Decree of the German-speaking Community of 22 September 2014 (Belgian Monitor of 17 October 2014), the Decree of the Walloon Region of 21 June 2012
(3) Effective date for Belgium: 01/04/2015.

Protocol to Amend the Convention concerning Mutual Administrative Assistance in Tax Matters
Preamble
Member States of the Council of Europe and member countries of the Organisation for Economic Cooperation and Development (OECD), signatories to this Protocol,
Considering that the Convention on Mutual Administrative Assistance in Tax Matters, made in Strasbourg on 25 January 1988 (hereinafter "the Convention"), was concluded before the standard on the exchange of information in tax matters is internationally recognized;
Considering that a new framework for cooperation has been established after the conclusion of the Convention;
Considering that it is desirable to have a multilateral instrument to enable the largest number of States to benefit from the new framework of cooperation and also to apply the highest international standards of cooperation in the tax field;
The following agreed:
Article Ier
1. The seventh preambular paragraph of the Convention is deleted and the following substituted:
“Convinced as long as States should take measures or provide information taking into account the need to protect the confidentiality of information and international instruments relating to the protection of privacy and the flow of personal data; »
2. The following is added after the seventh preamble of the Convention:
"Considering that a new framework for cooperation has been established and that it is desirable to have a multilateral instrument to allow the largest number of States to benefit from the new framework of cooperation and also to apply the highest international standards of cooperation in the tax field; »
Article II
Article 4 of the Convention is deleted and the following substituted:
« Article 4 - General provision
1. The Parties shall exchange, in particular as provided for in this section, information likely relevant to the administration or application of their domestic legislation relating to the taxes covered by this Convention.
2. Suppressed.
3. A Party may, by a declaration addressed to one of the depositaries, indicate that, in accordance with its domestic legislation, its authorities may inform its resident or national before providing information concerning it under Articles 5 and 7. »
Article III
1. The term "and" in paragraph 1.b of Article 18 of the Convention is replaced by the term ", or".
2. The reference to "Article 19" in paragraph 1.f of Article 18 of the Convention is replaced by a reference to "Article 21.2.g".
Article IV
Article 19 of the Convention is deleted.
Article V
Article 21 of the Convention is deleted and the following substituted:
"Article 21 - Protection of persons and limitations of the obligation of assistance
1. Nothing in this Convention shall be construed as limiting the rights and guarantees granted to persons by the law or administrative practice of the requested State.
2. Except as to article 14, the provisions of this Convention shall not be construed as imposing on the requested State the obligation:
(a) take measures that derogate from its legislation or administrative practice, or from the legislation or administrative practice of the requesting State;
(b) take measures that would be contrary to public order;
(c) provide information that could not be obtained on the basis of its legislation or administrative practice, or the legislation or administrative practice of the requesting State;
(d) provide information that would reveal a commercial, industrial, professional or commercial secret, or information that would be contrary to public order;
(e) provide administrative assistance if and to the extent that it considers that the imposition of the requesting State is contrary to the generally accepted taxation principles or to the provisions of a convention with a view to avoiding double taxation or any other agreement that it has entered into with the requesting State;
(f) to provide administrative assistance in order to implement or enforce a provision of the tax legislation of the requesting State, or to fulfil an obligation to do so, which is discriminatory against a national of the requested State in relation to a national of the requesting State in the same circumstances;
(g) provide administrative assistance if the requesting State has not exhausted all reasonable measures provided for in its legislation or administrative practice, unless the use of such measures results in disproportionate difficulties;
(h) provide recovery assistance in cases where the resulting administrative burden for that State is significantly disproportionate to the benefits that may be derived from it by the requesting State.
3. If information is requested by the requesting State in accordance with this Convention, the requested State shall use the powers it has to obtain the requested information, even if it does not need it for its own tax purposes. The obligation contained in the previous sentence is subject to the limitations provided for in this Convention, unless these limitations, and in particular those contained in paragraphs 1 and 2, are likely to prevent the requested State from communicating information solely because they do not have an interest in it in the national context.
4. In no case shall the provisions of this Convention, and in particular those of paragraphs 1 and 2, be construed as permitting a requested State to refuse to disclose information solely because it is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or because such information relates to the property rights of a person. »
Article VI
Paragraphs 1 and 2 of Article 22 are deleted and replaced by the following:
“1. The information obtained by a Party pursuant to this Convention shall be kept secret and protected under the same conditions as that provided for information obtained under the legislation of that Party and, as necessary to ensure the necessary level of protection of personal data, in accordance with the safeguards that may be specified by the Party providing the information as required under its legislation.
2. This information shall in any case be communicated only to the persons or authorities (including the courts and administrative or supervisory bodies) concerned by the establishment, collection or collection of the taxes of that Party, by the procedures or criminal proceedings relating to these taxes, or by the decisions on remedies relating to these taxes or by the control of the foregoing. Only such persons or authorities may use this information and only for the purposes indicated above. They may, notwithstanding the provisions of paragraph 1, state them in public hearings of courts or in judgments concerning such taxes. »
Article VII
Paragraph 2 of Article 27 of the Convention is deleted and the following substituted:
“2. Notwithstanding the provisions of paragraph 1, Parties that are States members of the European Union may apply, in their mutual relations, the possibilities of assistance provided for by the Convention, to the extent that they permit greater cooperation than those provided by the applicable rules of the European Union. »
Article VIII
1. The following paragraphs are added at the end of Article 28 of the Convention:
“4. Any Member State of the Council of Europe or member country of the OECD that becomes a Party to the Convention after the entry into force of the Protocol amending this Convention, open for signature on 27 May 2010 (the "2010 Protocol"), shall be a Party to the Convention as amended by this Protocol, unless it expresses a different intention in a written notification addressed to one of the depositaries.
5. After the entry into force of the 2010 Protocol, any State that is not a member of the Council of Europe or the OECD may request to be invited to sign and ratify the Convention as amended by the 2010 Protocol. Any such request must be addressed to one of the depositaries who will forward it to the Parties. The depositary will also inform the Committee of Ministers of the Council of Europe and the OECD Council. The decision to invite States that have requested to become Parties to the Convention will be taken by consensus by the Parties to the Convention through the coordinating body. For any State ratifying the Convention as amended by the 2010 Protocol pursuant to this paragraph, this Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of ratification with one of the depositaries.
6. The provisions of this Convention, as amended by the 2010 Protocol, apply to administrative assistance covering tax periods beginning on 1er January, or after 1er January of the year following the year in which the Convention, as amended by the 2010 Protocol, will enter into force with respect to a Party or, in the absence of a taxation period, shall apply to administrative assistance relating to tax obligations that arise on 1er January, or after 1er January of the year following the year in which the Convention, as amended by the 2010 Protocol, will enter into force with respect to a Party. Two or more Parties may agree that the Convention, as amended by the 2010 Protocol, will take effect with respect to administrative assistance relating to earlier taxation periods or tax obligations.
7. Notwithstanding the provisions of paragraph 6, the provisions of this Convention, as amended by the 2010 Protocol, shall take effect from the date on which it comes into force with respect to a Party, in respect of tax matters involving an intentional act punishable by prosecution under the criminal law of the requesting Party relating to periods of taxation or prior tax obligations. »
2. The following paragraph will be added after paragraph 1 (e) of Article 30 of the Convention:
"(f) to apply section 28 subsection 7 exclusively for administrative assistance covering taxation periods that begin 1er January, or after 1er January of the third year before the third year in which the Convention, as amended by the 2010 Protocol, entered into force in respect of a Party, or in the absence of a taxation period, for administrative assistance relating to tax obligations that began on 1er January or after 1er January of the third year preceding the year in which the Convention, as amended by the 2010 Protocol, entered into force with respect to a Party. »
3. The terms "and to any Party to this Convention" will be added after the terms "OECD member countries" in paragraph 1 of Article 32 of the Convention.
Article IX
1. This Protocol is open for signature by the Signatories of the Convention. It will be subject to ratification, acceptance or approval. A signatory may not ratify, accept or approve this Protocol unless previously or simultaneously ratified, accepted or approved the Convention. Instruments of ratification, acceptance or approval will be deposited near one of the depositaries.
2. This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five Parties to the Convention have expressed their consent to be bound by this Protocol in accordance with the provisions of paragraph 1.
3. For any Party to the Convention that subsequently expresses its consent to be bound by the Protocol, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.
Article X
1. The depositary to which an act, notification or communication is deposited shall notify the member States of the Council of Europe, the member countries of the OECD and any Party to the Convention as amended by this Protocol:
(a) any signature;
(b) the deposit of any instrument of ratification, acceptance or approval;
(c) any effective date of this Protocol in accordance with the provisions of Article IX;
(d) any other act, notification or communication relating to this Protocol.
2. The depositary receiving a communication or making a notification in accordance with paragraph 1 shall inform the other depositary.
3. Depositaries will provide a certified true copy of this Protocol to Council of Europe member States and OECD member countries.
4. When this Protocol comes into force in accordance with Article IX, one depositary shall prepare the text of the Convention as amended by this Protocol and shall transmit a certified copy thereof to each Party to the Convention as amended by this Protocol.
In faith, the undersigned, duly authorized to do so, have signed this Protocol.
Done in Paris on 27 May 2010, in French and English, both texts being equally authentic, in two copies, one of which will be deposited in the archives of the Council of Europe and the other in the archives of the OECD.

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