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17 AOUT 2013. - Law transposing Council Directive 2011/16/EU of 15 February 2011 on Administrative Cooperation in the Tax Area and repealing Directive 77/799/EEC (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Introductory provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for the transfer of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC.
CHAPTER 2. - Income tax
Art. 3. Section 338 of the Income Tax Code 1992, replaced by the Act of 19 May 2010, is replaced by the following:
§ 1^er. This article sets out the rules and procedures that Belgium and other EU Member States cooperate with each other for the purpose of exchanging information that is likely to be relevant to the administration and application of the domestic legislation of all Member States on income taxes.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to transmit to it all the information referred to in paragraph 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority that requests them in a particular case, all information referred to in paragraph 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the Belgian competent authority spontaneously communicates to the foreign competent authority the information referred to in paragraph 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The Belgian competent authority may request a foreign competent authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, the consignee, all the acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the legislation relating to taxes on income.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the law relating to taxes on income.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to § 5 or 7 may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State under this section is covered by the obligation to secrecy of Article 337 and is protected by the Act of 8 December 1992 on the protection of privacy in respect of personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and enforcement of Belgian income tax legislation is communicated by a third country to the Belgian competent authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to whom such information could be useful and to any foreign competent authority that so requests.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data and the Act of 3 August 2012 on provisions relating to the processing of personal data carried out by the Federal Public Service Finance in the course of its missions, transmit to a third country the information obtained under this section, provided that all the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
CHAPTER 3. - Income taxes
Art. 4. In article 2, paragraph 1^er, from the Tax Code assimilated to income taxes, last amended by the Act of 10 January 2010, the word "337" is replaced by the word "338".
CHAPTER 4. - Registration, mortgage and transplant fees
Art. 5. In the title preceding section 289 of the Code of Registration, Mortgage and Registry Rights, the words "Common provision" are replaced by the words "Common provisions".
Art. 6. In the same Code, an article 289bis is inserted as follows:
"Art. 289bis. § 1^er. This article sets out the rules and procedures that Belgium and other EU Member States cooperate with each other for the purpose of exchanging information that is likely to be relevant to the administration and application of the domestic legislation of all Member States on the rights of registration, mortgage and transplantation.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The Belgian competent authority may request a foreign competent authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, to the consignee, all acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the law relating to the registration, mortgage and transplant rights.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the law relating to the rights of registration, mortgage and transplantation.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State under this section is covered by the obligation to secrecy of Article 236bis and is protected by the Act of 8 December 1992 on the protection of privacy with respect to personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of Belgian law relating to the registration, mortgage and transplantation rights is communicated by a third country to the Belgian competent authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to whom such information could be useful and to any competent foreign authority that makes the request.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data and the Act of 3 August 2012 on provisions relating to the processing of personal data carried out by the Federal Public Service Finance in the course of its missions, transmit to a third country the information obtained under this section, provided that all the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
CHAPTER 5. - Succession rights
Art. 7. In book I^er of the Code of Succession Rights, chapter XIbis, comprising section 104/1, inserted by the Act of 23 December 2009, is repealed.
Art. 8. In book I^er of the same Code, it is inserted a chapter XVIII entitled "Chapter XVIII. Provisions common to all taxes".
Art. 9. In chapter XVIII of the same Code, inserted by section 8, an article 146ter is inserted as follows:
"Art. 146ter. All jurisdictions within the Federal Public Service Finance are required to make available to all officials of the Public Service that are regularly responsible for the establishment or collection of taxes all appropriate, relevant and non-excessive information in their possession, which contribute to the continuation of the mission of these agents for the establishment or recovery of any tax established by the State.
Any officer of the Federal Public Service Finance, who is regularly responsible for conducting a review or investigation, is entitled to take, search or collect adequate, relevant and non-excess information that contributes to the establishment or recovery of any other tax established by the State.
Any information, document, report or act, discovered or obtained in the exercise of its functions by an agent of the Federal Public Service Finance, either directly or through an administrative department of the State, including the prosecutors and court offices, the administrations of the Communities and the Regions of the Belgian State, the provinces, towns and municipalities, as well as public institutions and bodies, may be invoked by any kind of taxes
By public institutions and bodies, it is necessary to hear the institutions, societies, associations, institutions and offices in which the State, a Community or a Region participates, to which the State, a Community or a Region provides a guarantee, on the activity of which the State, a Community or a Region exercises oversight or whose executive staff is designated by the federal government or a government of Community or Region, on its proposal or through its approval. ".
Art. 10. In Chapter XVIII of the same Code, inserted by Article 8, an article 146quater is inserted as follows:
"Art. 146quater. § 1^er. This article sets out the rules and procedures that Belgium and other EU Member States cooperate with each other for the purpose of exchanging information that is likely to be relevant to the administration and application of the domestic legislation of all Member States on the rights of succession and transfer by death.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The competent Belgian authority may request a competent foreign authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, the consignee, all the acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the law relating to the rights of succession and transfer by death.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the law relating to the rights of succession and transfer by death.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State under this section is covered by the obligation to secrecy of Article 146bis and is protected by the Act of 8 December 1992 on the protection of privacy in respect of personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, as long as it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of Belgian law relating to the rights of succession and transfer by death is communicated by a third country to the Belgian competent authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to whom such information could be useful and to any foreign competent authority that so requests.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data and the Act of 3 August 2012 on provisions relating to the processing of personal data carried out by the Federal Public Service Finance in the course of its missions, transmit to a third country the information obtained under this section, provided that all the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
Art. 11. In the same Code, an article 160bis is inserted as follows:
"Art. 160bis. § 1^er. This article sets out the rules and procedures whereby Belgium and other EU Member States cooperate with each other for the purpose of exchanging information likely relevant to the administration and application of the domestic legislation of all Member States relating to the compensatory tax of succession rights.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1^er electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The Belgian competent authority may request a foreign competent authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, to the consignee, all acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the legislation relating to the compensatory tax of the succession rights.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the legislation relating to the compensatory tax of the succession rights.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State under this section is covered by the obligation to secrecy of Article 146bis and is protected by the Act of 8 December 1992 on the protection of privacy in respect of personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of Belgian law relating to the compensatory tax of succession rights is communicated by a third country to the competent Belgian authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to whom such information could be useful and to any competent foreign authority that so requests.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data and the Act of 3 August 2012 on provisions relating to the processing of personal data carried out by the Federal Public Service Finance in the course of its missions, transmit to a third country the information obtained under this section, provided that all the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
Art. 12. In the same Code, an article 162/1 is inserted as follows:
"Art. 162/1. § 1^er. This article sets out the rules and procedures that Belgium and other EU Member States cooperate with each other for the purpose of exchanging information that is likely to be relevant to the administration and application of the domestic legislation of all Member States relating to the annual tax on collective investment bodies, credit institutions and insurance companies.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The Belgian competent authority may request a foreign competent authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, to the consignee, all the acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the legislation relating to the annual tax on collective investment bodies, credit institutions and insurance companies.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the legislation relating to the annual tax on collective investment bodies, credit institutions and insurance companies.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State under this section is covered by the obligation to secrecy of Article 146bis and is protected by the Act of 8 December 1992 on the protection of privacy in respect of personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of the Belgian legislation relating to the annual tax on collective investment bodies, credit institutions and insurance companies are communicated by a third country to the Belgian competent authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to which such information could be useful and to any foreign competent authority that so requests.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data and the Act of 3 August 2012 on provisions relating to the processing of personal data carried out by the Federal Public Service Finance in the course of its missions, transmit to a third country the information obtained under this section, provided that all the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
CHAPTER 6. - Miscellaneous fees and taxes
Art. 13. Section 182 of the Code of Miscellaneous Duties and Taxes, replaced by the Act of 19 May 2010, is repealed.
Art. 14. In the title V of Book III of the same Code, the words "Common provision" are replaced by the words "Common provisions".
Art. 15. In the same Code, an article 211bis is inserted as follows:
"Art. 211bis. § 1^er. This article sets out the rules and procedures that Belgium and other EU Member States cooperate with each other for the purpose of exchanging information that is likely to be relevant to the administration and application of the domestic legislation of all Member States on various duties and taxes.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The competent Belgian authority may request a competent foreign authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, the consignee, all the acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the legislation relating to various duties and taxes.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the legislation relating to various duties and taxes.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State under this section is covered by the obligation to secrecy of section 212 and is protected by the Act of 8 December 1992 on the protection of privacy in respect of personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of Belgian legislation relating to various duties and taxes is communicated by a third country to the competent Belgian authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to whom such information could be useful and to any competent foreign authority that so requests.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the Protection of Privacy with respect to the processing of personal data and the Act of 3 August 2012 dealing with the processing of personal data carried out by the Federal Public Service Finance, transmit to a third country the information obtained under this section, provided that all of the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
CHAPTER 7. - Other taxes not subject to community law on charges
Art. 16. In Book III of the ordinary law of 16 July 1993 to complete the federal structure of the State, a chapter VIII/1 "Mutual Assistance" is inserted.
Art. 17. In chapter VIII/1 inserted by article 16, an article 390/1 is inserted as follows:
"Art. 390/1. § 1^er. This article sets out the rules and procedures that Belgium and other EU Member States cooperate with each other for the purpose of exchanging information that is likely to be relevant to the administration and application of the domestic legislation of all Member States relating to packaging dues and environmental dues.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The Belgian competent authority may request a foreign competent authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, the consignee, all the acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the legislation relating to packaging dues and environmental dues.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all the acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the legislation relating to packaging dues and environmental dues.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State pursuant to this section is covered by the obligation to secrecy of section 320 of the General Customs and Access Act and is protected by the Act of 8 December 1992 on the protection of privacy with respect to personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of Belgian law relating to packaging dues and environmental dues is communicated by a third country to the Belgian competent authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to whom such information could be useful and to any foreign competent authority that makes the request.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the Protection of Privacy with respect to the processing of personal data and the Act of 3 August 2012 dealing with the processing of personal data carried out by the Federal Public Service Finance, transmit to a third country the information obtained under this section, provided that all of the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
Art. 18. In the Act of 21 December 2009 on the Excise Diet for Non-Alcoholic Drinks and Coffee, a chapter 5/1 " Mutual Assistance" is inserted.
Art. 19. In Chapter 5/1 inserted by Article 18, an article 28/1 is inserted as follows:
"Art. 28/1. § 1. This article sets out the rules and procedures whereby Belgium and other EU Member States cooperate with each other for the purpose of exchanging information likely to be relevant to the administration and application of the domestic legislation of all Member States relating to the excise regime of non-alcoholic beverages and coffee.
This section also sets out the provisions governing the exchange of information referred to in paragraph 1 electronically.
This article does not affect the application of the rules on mutual legal assistance in criminal matters. It also does not meet the obligations of Member States in respect of broader administrative cooperation that would result from other legal instruments, including bilateral or multilateral agreements.
§ 2. For the purposes of this article, the following means:
1° "directive": Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the tax field and repealing Directive 77/799/EEC;
2° "Member State": a Member State of the European Union;
3° "central liaison office": the office which was designated as such by the competent authority and which is the privileged person responsible for contacts with other member states in the field of administrative cooperation;
4° "liquid service": any office other than the central liaison office that has been designated as such by the competent authority to exchange information directly under this section;
5° "qualified officer": any official who is authorized by the competent authority to exchange information directly under this section;
6° "Belgian competent authority": the authority designated as such by Belgium. The Belgian central liaison office, Belgian liaison services and relevant Belgian officials are also considered to be the competent Belgian authority by delegation;
7° "Foreign Competent Authority": the authority designated as such by a Member State other than Belgium. The Central Liaison Office, liaison services and competent officials of that Member State are also considered to be the foreign competent authority by delegation;
8° "Applicant authority": the Central Liaison Office, a liaison service or any competent official of a Member State who makes a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
9° "required authority": the central liaison office, a liaison service or any competent official of a Member State who receives a request for assistance on behalf of the competent Belgian authority or a competent foreign authority;
10° "administrative investigation": all controls, audits and actions carried out by Member States in the exercise of their responsibilities to ensure the proper application of tax legislation;
11° "automatic exchange": the systematic communication, without prior request, of predefined information, at regular intervals previously fixed, to another Member State;
12° "spontaneous exchange": the ad hoc communication, at any time and without prior request, of information to another Member State;
13° "person" :
a. a natural person;
a legal person;
c. where the legislation in force provides, an association of persons to whom the capacity to perform legal acts is recognized, but who does not have the status of a legal entity; or
d. any other legal construction, regardless of its nature and form, whether or not it has the legal personality, having or managing assets that, including income derived from it, are subject to one of the taxes under the Directive;
14° "by electronic means": by means of electronic processing equipment - including digital compression - and data storage, by wire link, radio, optical processes or any other electromagnetic process;
15° "CNC network": the common platform based on the common communication network, developed by the European Union to ensure all electronic transmissions between competent authorities in the customs and fiscal fields.
§ 3. The competent Belgian authority exchanges information with the competent foreign authorities.
§ 4. The competent Belgian authority may, in a particular case, request a competent foreign authority to communicate to it all the information referred to in § 1^er, of which the latter disposes or obtained as a result of an administrative investigation. The application may include a reasoned request for a specific administrative investigation.
The competent Belgian authority may request the requesting authority to provide the original documents.
§ 5. The competent Belgian authority shall communicate to a competent foreign authority who requests them in a particular case, all information referred to in § 1^er, which it disposes of or obtained as a result of the execution of an administrative investigation necessary to obtain such information.
Where applicable, the competent Belgian authority shall notify the requesting authority of the reasons why it considers that an administrative investigation is not necessary.
To obtain the requested information or to conduct the requested administrative investigation, the Belgian competent authority shall follow the same procedures as if it were an initiative or at the request of another Belgian body.
In the event of an express request from the requesting authority, the Belgian competent authority shall communicate the original documents unless the Belgian provisions oppose it.
Communications shall be made by the competent Belgian authority as soon as possible, and no later than six months from the date of receipt of the request. However, where the competent Belgian authority is already in possession of the information concerned, the communications shall be made within two months of that date. For some particular cases, the competent Belgian authority and the requesting authority may agree on different deadlines.
The competent Belgian authority shall acknowledge receipt of the application immediately to the requesting authority, if possible electronically, and in any event not later than seven working days after receiving it.
The competent Belgian authority shall notify the requesting authority of any deficiencies found in the application and, where appropriate, the need to provide other general information within one month of receipt of the application. In this case, the deadlines set out in paragraph five begin on the date on which the Belgian competent authority received the additional information.
Where the competent Belgian authority is unable to respond to the application within the time limit provided, it shall inform the requesting authority immediately, and in any event within three months of the receipt of the application, of the reasons that explain the non-compliance of that period and the date on which it considers it to be able to respond.
Where the competent Belgian authority does not have the requested information and is unable to respond to the request for information or refuses to respond to it for the reasons referred to in § 20, it shall inform the requesting authority of its reasons immediately and in any event within one month of receipt of the request.
§ 6. The competent Belgian authority shall communicate to the competent foreign authorities, within the framework of the automatic exchange, information relating to taxable periods from 1^er January 2014 at its disposal concerning persons residing in that other Member State who are concerned with specific categories of income and capital within the meaning of Belgian legislation:
1° remuneration of workers;
2° remuneration of business leaders;
3° life insurance products not covered by other community legal instruments concerning the exchange of information and other similar measures;
4° pensions;
5° ownership and income of real property.
The communication of information is carried out at least once a year, and no later than six months after the end of the calendar year in which the information became available.
The "available information" refers to information in the tax records of the Member State which communicates the information and may be consulted in accordance with the procedures for collecting and processing the information applicable in that Member State.
§ 7. In the following cases, the competent Belgian authority spontaneously communicates to the competent foreign authority the information referred to in § 1^er :
1° the Belgian competent authority has reasons to assume that there may be a tax or tax loss in the other Member State;
2° a taxpayer obtains, in Belgium, a reduction or exemption from tax or tax that should result in an increase in tax or tax or a tax liability in the other Member State;
3° of business between a taxpayer in Belgium and a taxpayer of another Member State shall be treated in one or more countries, so that a tax or tax reduction may be effected in either Member State or both;
4° the Belgian competent authority has reasons to assume that there may be a decrease in tax or tax resulting from fictitious transfers of profits within business groups;
5° the competent Belgian authority, following the information provided by a competent foreign authority, has collected information that is adequate, relevant and not excessive for the establishment of a tax or tax in that other Member State.
The Belgian competent authority may spontaneously communicate to a foreign competent authority the information of which it is aware and which is adequate, relevant and not excessive to that foreign competent authority.
The competent Belgian authority which has information referred to in paragraph 1^er shall notify the foreign competent authority of any interested Member State as soon as possible, and no later than one month after such information is available.
§ 8. The competent Belgian authority to which information referred to in § 7 is communicated by acknowledgement of receipt, if possible by electronic means, to the competent foreign authority which has communicated it, immediately and in any event no later than seven working days after receiving it.
§ 9. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent Belgian authority may, under the conditions established by the competent foreign authority:
1° be present in offices where the administrative authorities of the requested Member State perform their tasks;
2° assist in the administrative investigations carried out in the territory of the requested Member State.
§ 10. The competent Belgian authority may agree with a competent foreign authority for the exchange of information referred to in § 1^erthat officials authorized by the competent foreign authority may, under the conditions established by the competent Belgian authority:
1° to be present in Belgium in offices where the Federal Public Service Finance performs its tasks;
2° assist in the administrative investigations carried out in Belgian territory.
Where the requested information is contained in documents to which the officials of the Belgian competent authority have access, the officials of the requesting authority shall receive copies of these documents.
Under the agreement referred to in paragraph 1^er, officials of the requesting authority who attend administrative investigations shall not question persons and examine documents in Belgium.
Officials authorized by the requesting Member State present in Belgium in accordance with paragraph 1^er, must always be in a position to submit a written mandate specifying their identity and official quality.
§ 11. When Belgium agrees with one or more other Member States to carry out simultaneous checks on their own territory with respect to one or more persons with a common or complementary interest to them, in order to exchange the information obtained, this § applies.
The Belgian competent authority independently identifies the persons it intends to propose for simultaneous control. It shall inform the competent foreign authority of the Member States concerned of all matters for which it proposes simultaneous control, by motivating its choice. It indicates the time limit for the control to be carried out.
When a simultaneous check has been proposed to the Belgian competent authority, the latter decides whether it wishes to participate in simultaneous control. It confirms its agreement with the foreign competent authority that proposed control or means its refusal by motivating it.
The Belgian competent authority designates a representative to oversee and coordinate the control.
§ 12. The Belgian competent authority may request a foreign competent authority to notify, in accordance with the rules governing the notification of the corresponding acts in the requested Member State, the consignee, all the acts and decisions emanating from the Belgian administrative authorities and concerning the application in Belgium of the legislation relating to the excise regime of non-alcoholic beverages and coffee.
The notification request indicates the name and address of the recipient as well as any other information that may facilitate its identification and refers to the subject matter of the notice or decision to be notified.
The competent Belgian authority shall only apply for notification when it is unable to notify in accordance with Belgian rules, or where such notification would result in disproportionate difficulties. The competent Belgian authority may notify a document, by registered or electronically, directly to a person established in the territory of another Member State.
§ 13. At the request of a competent foreign authority, the competent Belgian authority shall notify the consignee, in accordance with the Belgian rules governing the notification of the corresponding acts, of all acts and decisions emanating from the administrative authorities of the requesting Member State and concerning the application in its territory of the legislation relating to the excise regime of non-alcoholic beverages and coffee.
The competent Belgian authority shall immediately inform the requesting authority of the action it has given to the application and in particular of the date on which the decision or act was notified to the consignee.
§ 14. When a competent foreign authority has provided information pursuant to §§ 4 or 8 and a return of information is requested, the competent Belgian authority that has received the information, shall, without prejudice to the rules relating to professional secrecy and the protection of the data applicable in Belgium, provide the competent foreign authority that has communicated them, as soon as possible and no later than three months after the results of the exploitation of the information received are known.
The Belgian competent authority provides once a year to the Member States concerned a return of information on automatic exchange, in accordance with the practical terms agreed bilaterally.
§ 15. The competent Belgian authority who has provided information pursuant to §§ 5 or 7, may ask the competent foreign authority who has received it to give it its opinion in return on them.
§ 16. When a Belgian liaison service or a competent Belgian official receives a request for cooperation that does not fall within the competence assigned to it in accordance with Belgian law or Belgian policy, it shall forthwith transmit it to the Belgian central liaison office and inform the requesting foreign competent authority. In such cases, the period provided for in § 5 begins on the day following the day on which the application is transmitted to the Belgian central liaison office.
§ 17. The information available to the Belgian State pursuant to this section is covered by the obligation to secrecy of section 320 of the General Customs and Access Act and is protected by the Act of 8 December 1992 on the protection of privacy with respect to personal data processing and the Act of 3 August 2012 on provisions relating to personal data processing carried out by the Federal Public Service Finance in the course of its missions.
This information may be used:
1° to the administration and application of Belgian legislation relating to taxes and taxes referred to in Article 2 of the Directive;
2° to the establishment and recovery of other taxes and duties under Article 3 of the Law of 9 January 2012 transposing Council Directive 2010/24/EU of 16 March 2010 on mutual assistance in the collection of claims relating to taxes, taxes, duties and other measures, and to establish and recover mandatory social contributions;
3° in judicial and administrative proceedings that may result in sanctions, incurred as a result of violations of tax law, without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
With the authorization of the foreign competent authority that has communicated the information in accordance with the Directive and, provided that it is authorized by Belgian law, the information and documents received from that authority may be used for purposes other than those referred to in paragraph 2.
Where the competent Belgian authority considers that the information it has received from a competent foreign authority may be useful to the competent foreign authority of a third Member State for the purposes referred to in paragraph 2, it shall inform the competent authority of the Member State at the origin of the information of its intention to communicate this information to a third Member State. If the competent authority of the Member State at the origin of the information does not object within ten days from the date of receipt of the communication to that exchange of information, the competent Belgian authority may transmit the information to the competent foreign authority of the third Member State provided that it complies with the rules and procedures set out in this article.
Where the competent Belgian authority considers that the information transmitted by a competent foreign authority may be useful for the purposes referred to in paragraph 3, it shall apply for this purpose, to the competent authority of the Member State from which such information is derived.
The information, reports, certificates and any other documents, or certified copies or extracts thereof, obtained by the required authority and transmitted to the requesting Belgian competent authority in accordance with this article, are invoked as evidence by the Belgian competent authorities in the same way as the information, reports, certificates and all other equivalent documents provided by another Belgian body.
§ 18. The competent Belgian authority may authorize the use, in the receiving Member State, of information provided in accordance with this Article, for purposes other than those referred to in § 17, paragraph 2. The Belgian competent authority gives the authorization provided that their use is possible in Belgium for similar purposes.
Where the foreign authority considers that the information it has received from the Belgian competent authority may be useful to the foreign competent authority of a third Member State for the purposes referred to in § 17, paragraph 2, the Belgian competent authority may authorize that foreign competent authority to share this information with a third State. If the Belgian competent authority does not wish to give its authorization, it means its refusal within ten days of the date of receipt of the communication by the Member State who wishes to share the information.
The competent Belgian authority may authorize the use of the information transmitted by a competent foreign authority to a competent authority of a third Member State and originating from Belgium, in that third Member State for the purposes referred to in § 17, paragraph 3.
§ 19. Prior to the request for information referred to in § 4, the Belgian competent authority must first exploit the usual sources of information to which it may use to obtain the requested information without risking harming the achievement of the intended purpose.
The competent Belgian authority shall provide to a competent foreign authority the information referred to in § 5, provided that the competent foreign authority has already exploited the usual sources of information to which it may use to obtain the requested information without risking harm to the achievement of the intended purpose.
§ 20. The competent Belgian authority is not authorized to conduct investigations or transmit information as long as the conduct of such investigations or the collection of the information in question for the purposes of Belgium is contrary to its legislation.
The competent Belgian authority may refuse to transmit information when:
1° the requesting Member State is not able, for legal reasons, to provide similar information;
2° if this would result in disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority shall inform the requesting authority of the reasons for rejecting the request for information.
§ 21. The Belgian competent authority implements its information collection device to obtain the requested information, even if it is not necessary for its own tax needs. This obligation applies without prejudice to § 20, paragraph 1^er and 2, in no case shall the provisions be construed as authorizing Belgium to refuse to provide information on the sole ground that the latter have no interest in it.
§ 20, paragraph 1^er and paragraph 2, 2°, shall in no case be construed as authorizing the competent Belgian authority to refuse to provide information on the sole ground that such information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee, or that it relates to an interest in the capital of a person.
Notwithstanding paragraph 2, the competent Belgian authority may refuse to transmit the requested information in respect of taxable periods prior to 1^er January 2011 and that the transmission of this information could have been denied on the basis of article 8, point 1^erof Directive 77/799/EC if requested before 11 March 2011.
§ 22. When the Belgian authority provides a third country with greater cooperation than that provided for in the Directive, it cannot deny this extended cooperation to another Member State wishing to take part in such a broader form of mutual cooperation.
§ 23. The requests for information and administrative investigations filed under § 4 as well as the replies under § 5, the acknowledgement of receipt, requests for general information and declarations of incapacity or refusal under § 5 are, to the extent possible, transmitted by means of a standard form adopted by the Commission. Standard forms may be accompanied by reports, attestations and other documents, or certified copies or extracts from them.
The standard forms referred to in paragraph 1^er include at least the following information, to be provided by the requesting authority:
(a) the identity of the person under review or investigation;
(b) the tax purpose of the requested information.
The competent Belgian authority may, to the extent that they are known and in accordance with the evolution of the international situation, provide the names and addresses of all persons whose information is to be deemed to be in possession of the requested information, as well as any element that may facilitate the collection of information by the requested authority.
The information exchanged spontaneously and the acknowledgement of receipt concerning, respectively, §§ 7 and 8, requests for administrative notification under §§ 12 and 13, and returns of information under §§ 14 and 15, shall be transmitted by means of the type form arrested by the Commission.
Automatic exchanges of information under § 6 are carried out in a standard computer format designed by the Commission to facilitate the automatic exchange of information and based on the existing computer format pursuant to Article 9 of Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments, which must be used for all types of automatic exchanges of information.
§ 24. The information provided under this article shall, to the extent possible, be provided electronically through the CCN network.
Requests for cooperation, including requests for notification and attachments, may be written in any language chosen by mutual agreement by the required authority and the requesting authority. Such requests shall be accompanied by a translation into one of the official languages of Belgium only in special cases and provided that the competent Belgian authority shall justify its request for translation.
§ 25. Where information likely relevant to the administration and application of Belgian legislation relating to the excise regime of non-alcoholic beverages and coffee are communicated by a third country to the competent Belgian authority, the latter may, to the extent that an agreement with that third country authorizes it, transmit this information to the competent authorities of the Member States to which such information could be useful and to any competent foreign authority that so requests.
The competent Belgian authority may, taking into account the Act of 8 December 1992 on the Protection of Privacy with respect to the processing of personal data and the Act of 3 August 2012 dealing with the processing of personal data carried out by the Federal Public Service Finance, transmit to a third country the information obtained under this section, provided that all of the following conditions are met:
(a) the foreign competent authority of the Member State from which the information originates has given its prior agreement;
(b) the third country concerned has undertaken to cooperate in gathering evidence of the irregular or illegal nature of transactions that appear to be contrary or constitute an offence to tax legislation. ".
CHAPTER 8. - Special provision
Art. 20. Where a competent authority designated by another Member State requests the application of the directive referred to in Article 2, to a competent authority designated for that purpose by Belgium in respect of taxes other than taxes on income, taxes assimilated to taxes on income, registration fees, mortgage and transplantation, taxes and taxes governed by the Code of Succession Rights, various duties and taxes, customs duties
Where the competent authority designated by Belgium for this purpose is of the opinion that similar taxes are not levied on its territory, it shall use the procedures it has under the applicable legal, regulatory and administrative provisions applicable to income taxes.
CHAPTER 9. - Entry into force
Art. 21. This Act produces its effects on 1^er January 2013.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 17 August 2013.
PHILIPPE
By the King:
Minister of Finance,
K. GEENS
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
Documents of the House of Representatives:
53-2905 - 2012/2013:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text adopted by the Commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Full report: 4 July 2013.
Documents of the Senate:
5-2194 - 2012/2013
Number 1: Project referred to by the Senate.
Number two: Report.
No. 3: Decision not to amend.
Annales of the Senate: July 17 and 18, 2013.