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Decree No. 2010-1633 23 December 2010 On The Publication Of The Agreement In The Form Of Exchange Of Letters Between The Government Of The French Republic And The Government Of Gibraltar Concerning The Exchange Of Information In Tax Matters...

Original Language Title: Décret n° 2010-1633 du 23 décembre 2010 portant publication de l'accord sous forme d'échange de lettres entre le Gouvernement de la République française et le Gouvernement de Gibraltar relatif à l'échange de renseignements en matière fiscale...

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Summary

Implementation of articles 52 to 55 of the Constitution.

Keywords

BUSINESS AND EUROPEAN , INTERNATIONAL AGREEMENT , BILATERAL AGREEMENT , FRANCE , GIBRALTAR , FISCALE MATERIAL , LETTERS ECHANGE , INFORMATION CHANGE


JORF n°0300 du 28 décembre 2010 page 22770
text No. 2



Decree No. 2010-1633 of 23 December 2010 on the publication of the agreement in the form of an exchange of letters between the Government of the French Republic and the Government of Gibraltar concerning the exchange of information in tax matters (as an annex), signed in Paris on 18 September 2009 and in Gibraltar on 22 September 2009 (1)

NOR: MAEJ1032029D ELI: https://www.legifrance.gouv.fr/eli/decret/2010/12/23/MAEJ1032029D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2010/12/23/2010-1633/jo/texte


President of the Republic,
On the report of the Prime Minister and the Minister of State, Minister for Foreign and European Affairs,
Considering the Constitution, in particular articles 52 to 55;
Vu la Act No. 2010-846 of 23 July 2010 authorizing the approval of the Agreement in the form of an exchange of letters between the Government of the French Republic and the Government of Gibraltar concerning the exchange of information in tax matters (a joint annex), signed in Paris on 18 September 2009 and Gibraltar on 22 September 2009;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:

Article 1


The agreement in the form of an exchange of letters between the Government of the French Republic and the Government of Gibraltar on the exchange of information in tax matters (a consolidated annex), signed in Paris on 18 September 2009 and in Gibraltar on 22 September 2009, will be published in the Official Journal of the French Republic.

Article 2


The Prime Minister and the Minister of State, Minister of Foreign and European Affairs, are responsible, each with regard to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.



A C C O R D


EXCHANGE OF LETTERS AGAINST THE GOVERNMENT OF THE FRANÇAISE REPUBLIC AND GIBRALTAR GOVERNMENT RELATING TO THE EXCHANGE OF INFORMATION IN FISCALE (ENSEMBLE ANNEX)


THE MINISTER OF BUDGET,
PUBLIC ACCOUNTS,
PUBLIC FUNCTION
AND REFORM OF THE STATE


Paris, September 18, 2009.


To Mr. Peter R. Caruana,
Chief Minister


Mr. Chief Minister,
I have the honour of my Government to propose to you the provisions contained in the annex to this letter. I would be grateful if you could let me know if the terms of this annex were to be accepted by your Government.
In this case, this letter and its annex, as well as your reply, will form the agreement between our two Governments on the exchange of tax information, which will come into force after the notification by each of our two Governments to the other of the fulfilment of the internal procedures required by its legislation, in accordance with Article 12.
Please believe, Mr. Chief Minister, in the assurance of my best consideration.

  • Annex




    A N N E X E


    AGREEMENT BETWEEN THE GOVERNMENT OF THE FRENCH REPUBLIC AND GIBRALTAR GOVERNMENT RELATING TO THE ECHANGE OF INFORMATION IN FISCALE
    Considering that the Government of the French Republic and the Government of Gibraltar ("the Parties") wish to strengthen and facilitate the implementation of the provisions governing the exchange of information in tax matters;
    Considering that the Government of Gibraltar, under the powers conferred upon it by the United Kingdom, has the power to negotiate, conclude, apply and, under the provisions of this Agreement, denounce an agreement to exchange information in tax matters signed with the Government of the French Republic;
    The Parties agreed to conclude this Agreement, which only creates obligations for Parties.


    Article 1
    Object and scope


    The competent authorities of the Parties shall provide assistance by the exchange of information likely relevant to the application and enforcement of the domestic legislation of the Parties relating to the taxes covered by this Agreement, including information likely relevant to the determination, establishment, enforcement and collection of such taxes, concerning persons subject to these taxes, or for the investigation or prosecution of criminal taxation against such persons.
    The rights and protections enjoyed by persons under the required legislative or regulatory provisions or administrative practices of the requested Party shall remain applicable to the extent that they incur or unduly delay an effective exchange of information.


    Article 2
    Jurisdiction


    In order to enable the implementation of the provisions of this Agreement, the information shall be provided in accordance with this Agreement by the competent authority of the requested Party, regardless of whether the information relates to a resident or a national of a Party or whether it is held or not by that resident or national. A Requested Party shall not be subject to the obligation to provide information that is not held by its authorities or in the possession or control of persons under its territorial jurisdiction or likely to be obtained by them.


    Article 3
    Taxes targeted


    The taxes covered by this Agreement are the existing taxes provided by the legislative and regulatory provisions of the Parties.
    This Agreement shall also apply to identical or similar taxes that would be established after the date of signature of this Agreement and that would be in addition to or replace existing taxes.
    In addition, this Agreement applies to all other taxes that Parties may agree by exchange of letters.
    The competent authorities of the Parties shall communicate the relevant amendments to the tax measures and related information collection measures referred to in this Agreement.


    Article 4
    Definitions


    1. For the purposes of this Agreement, unless otherwise defined:
    (a) "France" means the European and overseas departments of the French Republic, including the territorial sea and beyond it the areas on which, in accordance with international law, the French Republic has sovereign rights for the exploration and exploitation of the natural resources of the seabed, their basement and the underlying waters;
    « Gibraltar » means the territory of Gibraltar,
    (b) "Competent Authority" means:
    (i) in the case of France, the Minister of Finance or his authorized representative;
    (ii) in the case of Gibraltar, the Chief Secretary or another person appointed by the Minister of Finance;
    (c) "Person" means a natural person, a legal person and any grouping of such persons;
    (d) "tax" means any tax to which this Agreement applies;
    (e) "Applicant Party" means the requesting Party;
    (f) "Required Party" means the Party to which information is requested;
    (g) "Information collection measures" means the legislative and regulatory provisions as well as administrative or judicial procedures that allow a Party to obtain and provide the requested information;
    (h) "Information" means any fact, declaration, document or file, whatever its form;
    (i) "In criminal tax matters" means any tax case involving an intentional act committed before or after the entry into force of this Agreement, which is liable to prosecution under the penal law of the requesting Party;
    (j) "Criminal law" means all criminal provisions that are qualified in domestic law, as contained in tax legislation, in the Criminal code or in other laws;
    (k) "Company listed" means any corporation whose main class of shares is listed on a recognized stock exchange, the shares listed in the corporation to be purchased or sold easily by the public. Shares may be purchased or sold "by the public" if the purchase or sale of shares is not implicitly or explicitly restricted to a limited group of investors;
    (l) "Main class of shares" means the class(s) representing the majority of voting rights and the value of the corporation;
    (m) "Public Collective Investment Device" means any device or fund, in which the purchase, sale or redemption of shares or other shares is not implicitly or explicitly restricted to a limited group of investors;
    (n) "recognized stock exchange" means any exchange agreed by the competent authorities of the Parties.
    2. For the purposes of this Agreement at any time by a Party, any term or expression that is not defined therein shall, unless the context requires a different interpretation, the meaning assigned to it, at that time, the law of that Party, the meaning assigned to that term or expression by the tax law of that Party prevailing on the meaning assigned to it by the other branches of the law of that Party.


    Article 5
    Exchange of information on request


    1. The competent authority of the requested Party shall provide the information on request for the purposes referred to in Article 1. Such information shall be exchanged, whether or not the requested Party needs such information for its own tax purposes or regardless of whether or not the act under investigation would have constituted a criminal offence under the law of the requested Party if it had occurred in that Party.
    2. If the information available to the competent authority of the requested Party is not sufficient to enable it to respond to the request for information, that Party shall take all appropriate measures to collect the information necessary to provide the requesting Party with the requested information, even if the requested Party does not, at that time, require that information for its own tax purposes.
    3. Upon specific request by the competent authority of a requesting Party, the competent authority of the requested Party shall provide the information referred to in this Article, to the extent that its domestic law authorizes it, in the form of testimony of witnesses and certified copies in accordance with the original documents.
    4. Each Party shall ensure that its competent authorities, for the purposes referred to in Article 1, have the right to obtain and provide, upon request:
    (a) Information held by banks, other financial institutions and any person acting as an agent or trustee;
    (b) (i) information on legal owners and actual beneficiaries of companies, partnerships, public investment schemes, and others
    (ii) in the case of a foundation, information on founders, members of the board of the foundation and beneficiaries; and
    (iii) in the case of a trust, information on the constituents, trustees, third protectors and beneficiaries;
    on the understanding that this Agreement does not require Parties to obtain or provide property information relating to listed companies or public pooling arrangements if such information cannot be obtained without causing disproportionate difficulties.
    5. The competent authority of the requesting Party shall provide the following information to the competent authority of the requested Party:
    (a) The identity of the person under control or investigation;
    (b) The period on which the request for information is made;
    (c) The nature of the information requested and the form in which the requesting Party wishes to receive them;
    (d) The tax purpose in which the information is requested;
    (e) Reasons that suggest that the information requested is held in the requested Party or is in the possession or control of a person within the jurisdiction of the requested Party or may be obtained by that person;
    (f) To the extent they are known, the name and address of any person to whom it is necessary to think that it holds, controls or is able to obtain the requested information;
    (g) A statement certifying that the application complies with the legislative and regulatory provisions and administrative practices of the requesting Party, and that the requesting Party may, in similar circumstances, obtain the information requested under its law or within the normal framework of its administrative practices, in response to a valid request made by the requesting Party under this Agreement;
    (h) A statement certifying that the requesting Party used to obtain the information all available means in its own territory, apart from those that could raise disproportionate difficulties.
    6. To ensure a prompt response, the authority of the requested Party:
    (a) Acknowledging receipt of the request in writing to the competent authority of the requesting Party and, within 60 days of receipt of the application, advises that authority of any deficiencies in the application;
    (b) If the competent authority of the requested Party was unable to obtain and provide the information within 90 days of receipt of the request, it shall inform the requesting Party of the information, indicating the reasons for the inability to provide the information.


    Article 6
    Foreign tax controls


    1. The requested Party may, within the limits authorized by its domestic law, with reasonable notice from the requesting Party, authorize representatives of the requesting Party to enter the territory of the requested Party to interrogate natural persons and examine documents, with the prior written consent of the persons concerned. The competent authority of the requesting Party shall inform the competent authority of the requested Party of the date and place of the interview with the persons concerned.
    2. At the request of the competent authority of the requesting Party, the competent authority of the requested Party may authorize representatives of the competent authority of the requesting Party to attend a tax check in the territory of the requested Party.
    3. If the application referred to in paragraph 2 is accepted, the competent authority of the requested Party that conducts the control shall promptly communicate to the competent authority of the requesting Party the date and place of the control, the authority or person designated to carry out the control, and the procedures and conditions required by the requested Party to conduct that control. Any decision on the conduct of the tax control shall be taken by the requested Party leading it.


    Article 7
    Possibility of rejecting an application


    1. The competent authority of the Required Parite may refuse assistance when:
    (a) The application is not subject to this Agreement; or
    (b) The disclosure of the requested information would be contrary to public order.
    2. This Agreement does not require a Party to provide elements covered by the legal privilege or information that would disclose a commercial, industrial or professional secret or a commercial process, provided that the information referred to in Article 5(4) cannot, for that reason alone, be considered a secret or a commercial process.
    3. An application for information may not be rejected on the grounds that the tax claim under the application is contested.
    4. The requested Party is not required to obtain or provide information that the requesting Party may not obtain under its own right for the purposes of the application or enforcement of its own tax legislation or in response to a valid request made in similar circumstances by the Party required under this Agreement.


    Article 8
    Confidentiality


    1. All information received by the competent authority of a Party shall be held confidential.
    2. The information provided to the competent authority of the requesting Party may be used for purposes other than those referred to in Article 1 with the prior, written and express authorization of the requested Party.
    3. The information provided may only be disclosed to persons or authorities (including jurisdictional and administrative authorities) concerned by the purposes provided for in this Agreement. Information may only be used by such persons or authorities for such purposes. For these same purposes, information may be disclosed at public court hearings or in court decisions.
    4. The information provided to the requesting Party under this Agreement may not be disclosed to any other foreign authority.


    Article 9
    Fees


    Regular support costs are borne by the requested party. The requested Party may request reimbursement of extraordinary expenses directly exposed for assistance.


    Article 10
    Application provisions


    The Parties shall adopt any legislation necessary to comply with this Agreement and give effect to it. This includes the availability of information, access to information and the exchange of information.


    Article 11
    Friendly procedure


    1. In the event of difficulties or doubts between the Parties regarding the implementation or interpretation of this Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement.
    2. In addition to the above agreements, the competent authorities of the Parties may jointly determine the procedures to be followed in accordance with Articles 5, 6 and 9.
    3. The competent authorities of the Parties may communicate directly with each other in order to reach agreement under this Article.
    4. Parties may also, as appropriate, agree on other forms of dispute resolution.


    Article 12
    Entry into force


    This Agreement shall enter into force after notification by each Party to the other Party of the performance of the internal procedures required for its entry into force. As from the date of its entry into force, this Agreement shall take effect:
    (a) In criminal tax matters at that date; and
    (b) With respect to all other matters referred to in section 1, on that same date, but only for fiscal years that begin on or after that date or, in the absence of a fiscal year, for all tax obligations that arise on or after that date.


    Article 13
    Denunciation


    1. Each Party may denounce this Agreement by notifying this denunciation.
    2. The denunciation takes effect on the first day of the month following the expiration of a period of three months after the date of receipt of the notification of denunciation by the other Party.
    3. If this Agreement is denounced, the Parties shall remain bound by the provisions of Article 8 for any information obtained under this Agreement. All requests for information received up to the effective date of denunciation shall be processed in accordance with the provisions of this Agreement.


Done in Paris, December 23, 2010.


Nicolas Sarkozy


By the President of the Republic:


The Prime Minister,

François Fillon

The Minister of State,

Minister for Foreign Affairs

and European,

Michèle Alliot-Marie


Eric Woerth

THE CHIEF MINISTER

6 CONVENT PLACE

GIBRALTAR


Gilbraltar, September 22, 2009.


To Mr. Eric Woerth, Minister of Budget, Public Accounts, Public Service and State Reform

Minister,

On behalf of my Government, I have the honour to acknowledge receipt of your letter dated 18 September 2009, which is the following:

"I have the honour of my Government to propose to you the provisions contained in the annex to this letter. I would be grateful if you could let me know if the terms of this annex were to be accepted by your Government.

In this case, this letter and its annex as well as your response will constitute the agreement between our two Governments on the exchange of tax information, an agreement that will come into force after the notification by each of our two Governments to the other of the fulfilment of the internal procedures required by its legislation in accordance with Article 12. »

I am in a position to confirm that the terms of your letter dated 18 September 2009 and its annex collect the concurrence of the Government of Gibraltar and, with this response, will constitute the common acceptance of our two Governments of the provisions of the draft agreement.

Please accept, Minister, the assurances of our highest consideration.


Peter R. Caruana

Le Chief Minister

(1) This Agreement entered into force on 9 December 2010.
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