This is an HTML version of an attachment to the Freedom of Information request 'Savings Tax Directive Documents'.


Ref. Ares(2017)4867201 - 05/10/2017
EUROPEAN COMMISSION 
DIRECTORATE-GENERAL TAXATION AND CUSTOMS UNION 
ANALYSIS AND TAX POLICIES 
Direct tax legislation 
 
 
Brussels, 18 March 2008 
Taxud-E2 –  
GT4\2007\070626\followup\commentsf
romMS\20080401 Answers-Member 
States (draft 2)
 
 
 
 
 

 
F O R   I N T E R N A L   U S E   O N L Y  
 
UPDATED PROVISIONAL VERSION  
SUBJECT TO SCRUTINY BY THE DELEGATIONS 
 
 
   WORKING PARTY IV – DIRECT TAXATION 
 
 
Draft summary of the comments from Member States on the questions raised in the 
document "Review of the operation of the Council Directive 2003/48/EC on taxation of 
income from savings" of 14 March 2007 (Draft n°2 including Luxemburg's written 
comments in yellow in comparison with the previous draft) 
 
 
 
Meeting of 1 april 2008 
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GENERAL REMARKS 
 
Answers to the "Review of the operation of the Council Directive 2003/48/EC on 
taxation of income from savings" of 14 March 2007  
 

The Commission services received written contributions from 16 countries (BG, CZ, 
DK, EE, ES, FI, FR, IE, IT, LU, MT, NL, PL, SK, SL and UK). This summary 
document also includes some oral comments made by other countries during the WP 
IV meeting of 26 June 2007. 
 
EXECUTIVE SUMMARY 
Questions 1, 2 and 3 – Beneficial ownership and identification rules – possible link with 
the third anti-money laundering Directive (AMLD) 

Some Member States (MS) give full support to the Commission services approach, 
because they think the reference to the individual ownership established for AMLD 
purposes could indeed help to improve the Savings Directive's effectiveness in the 
case of "instrumental" or "screen" companies.  
A majority of MS, however, have expressed reservations to the approach adopted by 
the Commission because: 
● 
They think it would be premature to align the Savings Directive with the 
AMLD until the latter has been operational for some time and any operational 
difficulties have been overcome. 
● 
They consider that the identification of the beneficial owner according to the 
AMLD will not necessarily satisfy the purposes of the Savings Directive. 
● 
They consider that, even if the proposed look-through approach is made 
conditional on the recipient being "subject to yearly taxation", the proposed look-
through approach may be difficult to administer in practice, particularly when the 
paying agent is in a withholding tax jurisdiction, but also in the case of exchange of 
information, when the chain of holdings (number of intermediaries) is long and 
where the interest takes a number of years to eventually reach the beneficial owner. 
Some MS are clearly against the proposition, because: 
● 
It would extend the Savings Directive into the sphere of company taxation. 
● 
The objectives of the Savings Directive and of the AMLD are different (the 
definition of the beneficial owner is different in each Directive). 


● 
According to them, it would be very difficult to align both Directives in 
relation to discretionary trusts. They insist that what is being paid out of a trust is 
trust fund asset and not interest income.  
● 
They add that this proposition would increase the administrative burden for the 
paying agents and create legal uncertainty.  
Questions 4 and 5 - Alignment of the identifications rules provided by Article 3 of the 
SAVINGS DIRECTIVE with the Customer due diligence requirements to be observed 
under the AMLD  

In regard to introducing a clarification in the Savings Directive in order to refer 
systematically to the identity and permanent address resulting from the Customer Due 
Diligence performed under the requirements of the AMLD, many countries agree that 
it would be important to use the most relevant and reliable data on the beneficial 
owner available to the paying agent. Some MS fear that the reference made in the 
AMLD to "documents, data or information obtained from a reliable and independent 
source" is too vague and could lead to uncertainties and interpretation problems. Some 
MS think it is not possible to fully align the two Directives (notably because it is 
necessary that all income is covered and not only income exceeding a specific 
amount) and insist it is useful to have TIN or date and place of birth of an individual 
reported for tax purposes. 
 
Question 6 - Joint accounts 
On joint accounts, the vast majority of MS agree with the propositions of the 
Commission. However, some MS do not think it is absolutely necessary to introduce 
specific rules in the Directive providing for proportional attribution of interest 
payments or, in the absence of such information, the presumption of equal shares. 
Malta thinks this could mean an extra burden for paying agents since they do not 
currently hold this information and that a simple proportional or equal share 
attribution of interest to all the holders in a joint account would still not ensure that 
the information exchanged is accurate. It is of the opinion that it would be better if 
the paying agents identify (perhaps by a specifically designated code) whether the 
amount reported is the full amount of interest, the actual amount due to the beneficial 
owner or an equal share. 
Questions 7 and 8 - Proof of tax residence 
On Q 7 (reference by paying agents to those official documentary proofs of tax 
residence of the beneficial owner which are already in their possession), many MS 
would welcome a positive answer from paying agents. Some MS recommend the 
systematic use of tax certificates, while others think the procedure suggested in Q 8 
(additional task of systematically requesting an official documentary proof of tax 
residence for particular cases) would be burdensome and unnecessary. 
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Questions 9 to 12 - Definition of paying agent – Article 4 (2) of the Directive – 
transparent entities. 

Some MS do not see any objections against amending Art. 4(2) of the Directive in 
order to cover all transparent entities by this provision. They generally recommend 
establishing a positive list of the categories of transparent entities for which this 
provision would apply. Nevertheless, some MS fear that the administrative burden 
put on paying agents would be too high, and some would like to know if MS have a 
common method of determining whether en entity is tax transparent or not. 
Identically on Q 12 (application of provisions of article 4 (2) only if the look-through 
approach has not produced results in order to establish beneficial ownership), some 
MS find the idea interesting but probably quite complex to implement. One MS does 
not think that the proposed approach is the appropriate one, as art 4(2) does not work 
in practice and is not applied by third countries. 
Question 13 - Discretionary trusts (and other arrangements) and the "paying agent on 
receipt" provisions. 

Some MS support a modification of article 4 (2) that would extend the scope of this 
article to all trusts and similar arrangements where the income is not taxed on a 
yearly basis in its Member State of establishment. Others find the purpose of the 
proposition unclear, notably because trusts are used for many purposes and it would 
be inappropriate to treat them in general as savings vehicles, and also simply because 
sometimes it is not possible for a trust to hold an account in its own name. They 
think that having to establish whether an entity is taxable on its annual income would 
place an additional burden on the paying agents and MS concerned. One MS firmly 
expressed the view that the proposed solution is not the appropriate one, as art 4(2) 
does not work in practice. 
Questions 14 and 15 - Preventing the deliberate routing of interest payments through 
branches of the paying agents located outside the territorial scope of the Savings 
Directive 

On this point most MS support the concerns of the Commission. They feel deliberate 
routing could undermine the objective of the Savings Directive and think specific 
anti-abuse provisions should be included within the Directive for this purpose (one 
MS noted that its own administrative provisions already provide for such an anti-
abuse rule). But some also think a more thorough legal analysis needs to be made 
before imposing such an obligation (bank secrecy issues).  
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Question 16 - Definition of interest payment. Exclusion of innovative financial products 
from the scope of the Savings Directive. 

Some MS support the idea that the omission of innovative financial products causes 
distortion of competition in financial markets and agree it would be useful to 
consider the principle that "the substance over form principle" should prevail. Some 
of these MS think an amendment of the Directive is needed to achieve this objective. 
Some other MS have reservations about moving in that proposed direction, because 
they think they are not able to evaluate the impact of the current exclusion of 
innovative financial products and because the "substance over form principle" will 
require paying agents to make difficult judgements. 
Questions 17 and 18 - Revocable Life-insurance, pension or annuity products 
Some MS express the opinion that distortions are inevitable and that enlarging the 
scope of implementation of the Directive to the above mentioned financial products 
would be desirable. Many MS are cautious and would like more information on 
possible distortions before taking a position. Their answer will depend on the 
outcome of the discussions with the Expert Group. One MS think that revocable life 
insurance, pension and annuity products should remain outside the scope of the 
Directive. 
Questions 19-20-21 - Interest income obtained through non-UCITS. Definition of 
undertakings for collective investment established outside the territory to which the 
treaty applies – definition of collective investment funds. 

A broad majority of MS supports the idea that income from non-UCITS funds should 
be brought within the scope of the Directive, which requires a workable definition to 
be found. They also agree that the definition of undertakings for collective 
investment established outside the territory should be clarified and insist that the 
definition of collective investment funds should encompass all different investment 
funds. They insist in finding a solution to these problems, and that it is important to 
aim for consistency of treatment. One MS would, nevertheless, like to see the report 
of the Expert Group, as well as some statistical evidence that the markets are being 
distorted, before making its judgement. One MS is against the inclusion of income 
from non-UCITS in the scope of the Directive. 
Questions 22-23 - Annualisation 
MS who answered these questions were not aware of any distortion arising from the 
annualisation provision contained in the Savings Directive. 
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Question 24 - Home country rule 
Nearly all MS having answered support the "home country rule" and some of them 
are ready to give further consideration to the suggestion that a change in the text of 
article 6 (8) could help in this respect. 
Question 25 – Time reference for exchange of information 
A majority of MS think it would probably be burdensome for paying agents to be 
requested to specify the quarter of the tax year during which the interest payment is 
made. They therefore do not really support the idea, even if this measure could 
increase the quality of the information. 
Question 26 - Exceptions to the withholding tax procedure 
MS are not aware of particular problems in respect of the application of article 
13(1)(b) of the Directive. 
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ARTICLE 2 AND 3 – BENEFICIAL OWNERSHIP AND IDENTIFICATION RULES 
Q1: For interest payments made to legal entities, located in or outside the EU, 
would it be possible to refer, when appropriate, to the individual beneficial 
ownership as established for the purposes of the Third anti-money laundering 
Directive (AMLD), for establishing beneficial ownership also for the purposes of 
the Savings Directive?  

Q2: Would it be wise and practicable to make the above procedure conditional on 
the absence of any evidence (to be provided e.g. before the end of the fiscal year of 
the interest payment) that the legal entity
 is subject to yearly taxation on its income 
(including interest income) in its country of establishment under the local general 
arrangements for taxation of such kind of legal entities? 
Q3: Could the Savings Directive be clarified in order to refer to concepts of the 
Third anti-money laundering Directive for establishing the individual beneficial 
owners of a discretionary trust or other similar legal arrangement, so as to 
consider the interest payment as made to those beneficial owners, notably in cases 
such as the one where no evidence is provided within a reasonable time (e.g. before 
the end of the fiscal year of the interest payment) that the income arising to the 
trust or other similar legal arrangement (including interest income) is taxed on a 
yearly basis? 

YES: DE, DK, ES, FR, PL 
DK:    If the paying agent knows that the recipient of a payment is a legal entity, and that this 
entity acts on behalf of the true beneficial owner who is an individual and whose 
identity is known to the entity, then the Savings Directive ought to oblige the paying 
agent to apply a look-through approach.  It would appear that the individual beneficial 
ownership as established under the AMLD could also be applied under the Savings 
Directive.  
ES:  In the case of "instrumental" or "screen" companies, the focus on the effective 
beneficiary, which is also advocated by the OECD, should be transposed into the 
Savings Directive. 
DE:   Oral support for the Commission services approach expressed in the meeting of 26 
June 2007. 
FR:  full support to the Commission services approach.  The reference to the individual 
ownership established for AMLD purposes could indeed help to improve the Savings 
Directive effectiveness, while taking into account that this would impose an additional 
burden on paying agents.  On trusts, France agrees with the Commission's analysis and 
supports any attempts to determine the effective beneficial owner of interest payments 
in situations where the trust or other similar arrangement does not pass interest 
payments directly to a beneficiary.  In that area, the reference to concepts of the 
AMLD could be helpful. 
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NO: IE, CZ, LU, NL, UK 
IE:    thinks it would be premature to align the Savings Directive with the AMLD until the 
later has become operational for some time and any operational difficulties have been 
overcome. In relation to discretionary trusts, Ireland considers that it would be very 
difficult to align both Directives. The ultimate aim of the Savings Directive is to 
ensure effective taxation of cross border payments of savings income. In the case of 
interest arising to a discretionary trust, none of the potential beneficiaries of the trust 
has an ownership interest until it is actually paid over. At that stage, what is being paid 
is trust funds and not interest income. In regard to taxing the settlor of the trust in 
relation to the income of the trust, there is no provision in Irish law. Therefore Ireland 
does not regard the proposal to report the settlor of the trust as being any benefit to the 
recipient MS. An annual update of certificates would impose additional burden on 
both the paying agents and the tax authorities. 
 
 IE wants the Commission to clarify:  
•  how the paying agent is to establish the beneficial owner of savings income from this 
“class of persons” (Article 3(6) (b) (ii) of the AMLD, which deals with discretionary 
trusts, states that the beneficial owner shall at least include "the class of persons in 
whose main interest the legal arrangement or entity is set up or operates"). 
•  what the paying agent should report in cases where some of the “class of persons” are 
based in the same Member State as the paying agent and some are in other MS, and  
•  what action would be expected from MS to which the income is reported?  
 
LU:  the reference to the AMLD, even under the condition proposed in Q2, will not 
necessarily be appropriate, because the objectives of the two directives are different, 
and because this solution would put an additional burden on paying agents.  On Q3, 
LU would like to highlight the ECOFIN conclusions of 27 November 2000 ("Similar 
income……  going through structures used as substitutes for CIU (trusts, partnerships, 
etc…) will also be covered by the Directive"), but thinks the solution proposed in Q3 
would not achieve the desired result. 
 
NL:   the objectives of both Directives are different (the definition of the beneficial owner is 
at present different in each Directive), and this particular solution would put an 
additional burden on paying agents.  NL is not against an extension of the scope of the 
Directive, but would prefer, for example, the solution of a systematic exchange of 
information on all interest payments (including payments to entities), without asking 
paying agents to perform the role of "controller" 
UK:   look-through approach would extend the Savings Directive into the sphere of company 
taxation, which is expressly excluded from its scope at present; introduction of the 
requirements to provide evidence would seem impracticable and are likely to be a 
burden on paying agents. In the case of discretionary trusts, beneficiaries are not the 
owners of the income while it remains in the trust. 
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RESERVED POSITION: BG, EE, IT, LVMT, SK, AND SL 
BG
: wait and see position: we have to see how the new AMLD will be implemented and how  
it will work in practice.  
 
EE: Considering the fact that Customer Due Diligence will be performed depending on the 
risk of money laundering and terrorist financing, it could be concluded that the identification 
of the beneficial owner will not necessarily satisfy the purposes of the Savings Directive (lack 
of pertinent data). In the situation where the beneficial owner of interest payment made to a 
legal person has been established with sufficient precision, it could in principle also be used 
for the purposes of the Savings Directive, provided that it would still be possible to prove the 
real beneficial owner of the payment.  
If the look-through approach is applied then it should be conditional on the absence of 
evidence that the legal person itself is in fact taxable (whether on a yearly basis or otherwise). 
Furthermore, it cannot be presumed that the payment of interest to a legal person is just a 
means of avoiding the application of the Savings Directive, regardless of the tax regime of the 
legal person.  
We are not convinced that establishing the settlor or possible beneficiaries of the trust as 
beneficial owners for the purposes of the Savings Directive would in fact produce an adequate 
result. The Directive is aimed at effective taxation in the residence state of savings income in 
the form of interest payments made to individuals, but the income paid from the trust (except 
the so-called bare trusts and alike) to the beneficiaries is not necessarily savings income. In 
this case it might not be appropriate to refer to taxation or non-taxation of the trust as a 
condition for applying the look-through approach. 
 
IT: wonders if the use of the AMLD is sufficient for discretionary trusts. More generally, the 
reference made to the absence of annual taxation could limit the effectiveness of the measure. 
 
LV: at present LV cannot give an affirmative answer to Q1: It should be examined what   real 
possibilities there are to apply the look-through approach in order to establish the beneficial 
ownership of legal entities established outside the EU? What are the possibilities of a paying 
agent to fulfil his possible obligation to establish the beneficial owners of legal entities 
located outside the EU?  If it will be decided to apply the look–through approach, it would be 
appropriate to apply it only under certain conditions that may include the situation where no 
evidence is available in the taxation regime of the legal entity receiving the savings income.  
In general LV supports the idea of clarification of the Savings Directive for establishing the 
individual beneficial owners of a discretionary trust or other similar legal arrangements. 
However, it seems that the criteria for beneficial ownership under the AMLD are better suited 
to determine the settlor of the trust rather than the beneficial owner.  
 
MT:  Malta is of the opinion that the proposed look-through approach may be difficult to 
administer in practice in the case where: 
-  the paying agent is in a withholding tax jurisdiction: the withholding tax is deducted 
and 75% thereof is presumably transferred to the jurisdiction where the beneficial 
owner is resident. However, such a beneficial owner (in accordance with the provisions 
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of the AMLD) will not have the interest as a source of income, therefore there will be a 
problem for the purpose of the elimination of double taxation under Article 14 of the 
Savings Directive; 
-  the paying agent exchanges information: it may be a problem for beneficial owners to 
produce conclusive evidence as to whether their income in fact includes interest or not, 
particularly where there are a large number of intermediaries in the payment chain and 
where the interest takes a number of years to eventually reach the beneficial owner. 
Malta is of the opinion that even if the proposed look-through approach is made conditional 
on the “subject to yearly taxation” there may be difficulties in practice, particularly where 
there are a large number of intermediaries. When a payment is made by a paying agent to a 
legal entity which is not subject to yearly taxation, which in turn is owned by other legal 
entities, should the paying agent follow the whole chain of holdings up to the natural 
person(s) that are the beneficial owners in accordance with the AMLD, in order to determine 
whether along this chain there is an entity that is charged on a yearly basis?  If not, there 
could be double taxation, particularly where the paying agent is situated in a withholding tax 
jurisdiction. 
 Malta feels that the concept of beneficial ownership through ownership or control does not 
go hand in hand with the concept of beneficiaries of a trust. The latter do not own the assets 
that are settled in the trust and do not control the assets. Legal ownership and control is in the 
hands of the trustee. Furthermore, Malta considers that the proposal of adopting the AMLD 
parameters would not work for discretionary trusts when applied to the Savings Directive. 
The latter deals with income, while the former deals with property (assets). Furthermore, the 
assumption that a natural person who is the beneficiary of at least 25% of the trust property is 
in fact the beneficiary of the interest accruing to the trustee could produce very misleading 
exchanges of information (or unjustified withholding tax).  
 
SK: We recommend analysing in detail whether “beneficial owner” for the purposes of the 
AMLD is identical with the definition of “beneficial owner” for the purposes of the Savings 
Directive and whether this approach would meet goals of the Savings Directive in any case.  
 
SL: further examination is needed. 
 
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Q4: Should the Savings Directive be amended in order to refer systematically to the identity 
and permanent address resulting from the Customer Due Diligence performed under the 
requirements of the Third anti-money laundering Directive and its possible future 
modifications, with the only exception of those cases where there are no such requirements 
(e.g. transactions not exceeding €15000 carried out in the absence of contractual 
relations)? 
Q5: If yes, how could the additional requirements set by Article 3 of the Savings Directive 
for contractual relations, or single transactions entered on or after 1 January 2004 
(supplementing the identity with a reference to the date and place of birth, or to the tax 
identification number, when available; presumption of residence in the EU of those 
individuals presenting a passport or official identity card issued by an EU Member State) be 
maintained and satisfied? 
 
YES: DK (with reservations), EE (with reservations), FR  (conditions),  LU, MT (worth 
considering),  NL,  PL (worth  considering), SK, SL (worth examining) and the UK  (worth 
exploring it further) 
 
DK: For the purposes of the Savings Directive, the permanent address of the beneficial owner 
should generally continue to be established from a passport or an official identity card 
presented by the beneficial owner (as is the case today), unless the paying agent is in 
possession of information positively contradicting the information in the passport or official 
identity card (including another passport or official identity card issued at a later date.) We 
agree, however, with the purpose of the amendments suggested. 
 
EE: As regards the rules for identification of the beneficial owner and his permanent address, 
it is important for the purposes of the Savings Directive to use the most relevant and reliable 
data on the beneficial owner available to the paying agent. If the data resulting from the 
Customer Due Diligence is accurate and suitable for that purpose and the identification thus 
performed is not more burdensome for the paying agents, then unifying requirements arising 
under the two Directives could be considered.    
 
FR: if it is not more burdensome for the paying agents, then the unification of requirements 
arising under the two Directives could be considered. For the purposes of the Savings 
Directive, tax authorities need specific information, and some additional rules for the 
beneficial owner's identification will be needed (for example on the basis of all "documents, 
data or information obtained from a reliable and independent source", art 8 of the AMLD). 
 
LU: if it is acceptable for paying agents then this solution seems advisable 
 
MT
: Malta feels that the Commission’s analysis is correct, however, it doubts that its 
proposed solution would be successful if implemented. Paying agents currently have some 
form of objective criteria to work on. The proposal (in terms of the AMLD) refers to any 
“documents, data or information obtained from a reliable and independent source”. If these 
criteria need to be used, tax administrations would still need to determine what the criteria 
objectively means (i.e. what constitutes a “reliable and independent source”). Furthermore, 
Malta considers that there should not be a different set of criteria for transactions under Euro 
15,000. 
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NL:
 the right approach is indeed, when possible, to link the determination of identity and 
residence to info already in the possession of the paying agent. 
 
PL: since transactions not exceeding 15000 are not covered by the requirements of 
Customer Due Diligence under the AMLD, the paying agent would be obliged to apply two 
different regimes under the Savings Directive and the AMLD. It would be important to 
ascertain the opinion of market operators. It is also worth mentioning that according to the 
requirements of the AMLD, Customer Due Diligence can be based on “documents, data or 
information obtained from reliable and independent source”. Every Member State can have a 
different understanding of “reliable and independent source”; also domestic laws 
implementing the AMLD can vary considerably, which could cause interpretation problems. 
TIN should always be the main identification measure for tax purposes. When it is not 
available, reference to the date and place of birth should be made. 
 
 
NO: IE, CZ, LV 
 
IE:
 wonders whether it is possible to fully align both Directives. For example, it is necessary 
that the Savings Directive continues to apply to all income rather than just to income 
exceeding a specified amount, otherwise it would be possible to circumvent the requirements 
of the Directive. It is also useful to have the TIN or date and place of birth of an individual in 
order to identify that individual for tax purposes. The AMLD is not suitable to use for either 
of these purposes. This suggests that it would be necessary that paying agents continue to 
have two systems in place at the account opening stage, which would reduce, if not eliminate, 
the benefits for paying agents of aligning both Directives. 
 
LV: the current provisions of the Savings Directive on identification of the beneficial owner 
and the determination of permanent address of the beneficial owner are satisfactory. 
Amendments to the Savings Directive are not necessary. 
 
 
RESERVED POSITION: BG, IT, ES   
BG: For the purposes of the Savings Directive, the tax authorities need specific information. 
If the Savings Directive would be amended in order to refer to Customer Due Diligence 
requirements, some additional rules for the beneficial owner's identification will be needed. 
 
ES: the intention of the Commission must be valued positively, but Spain is not prepared to 
allow more flexibility than that already provided in Article 3 of the Savings Directive. 
 
IT: present rules would be better improved by also introducing an obligation to refer to the 
"most recent situation". 
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Q6: Would you agree that it is desirable to introduce in the Savings Directive (preferably in 
its Article 2) explicit common rules providing for a proportional attribution of interest 
payments to all the holders of joint accounts, or other jointly owned assets, according to 
their actual proportion of beneficial ownerships,  or in equal shares in the absence of such 
information? 

YES: BG, DK, EE, FI, FR, CZ, IT, LU, NL, PL, SK, SL, UK 
EE: Yes unless this issue can be settled by a common interpretation approved by all MS  
FI, FR: proposition in line with the current practice in Finland and France 
LU: would agree to apply specific common rules, if it is necessary and advisable. 
 
NO: LV, MT 
LV: it is not necessary to introduce common rules providing for the proportional attribution of 
interest payments or, in the absence of such information, the presumption of equal shares. 
MT: Malta feels that this proposal would mean that paying agents would need to establish this 
information for all their joint accounts. This could mean an extra burden for paying agents 
since they do not currently hold this information. Furthermore, a simple proportional or equal 
share attribution of interest to all the holders in a joint account would still not ensure that the 
information exchanged is accurate. Malta is of the opinion that it would be better if the paying 
agents identify (perhaps by a specifically designated code) whether the amount reported is the 
full amount of interest, the actual amount due to the beneficial owner or an equal share.  
 
RESERVED POSITION: IE 
IE: currently attributes the entire payment to each account holder in the absence of other 
information and has no objection to introducing any other system, if it is demonstrated that 
there is a demand for it.  
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Q7: Would it be acceptable for paying agents to make reference to those official 
documentary proofs of tax residence of the beneficial owner which are already in their 
possession, rather than to his permanent address, for establishing residence for the 
purposes of the Savings Directive? 

Q8: If yes, would paying agents accept the additional task of systematically requesting an 
official documentary proof of tax residence to all beneficial owners whose own professional 
activity or personal status, as known by the paying agent and corresponding to an 
indicative list of possible cases to be joined to the Savings Directive, can imply a difference 
between the State of the permanent address and the State of tax residence? 

YES: CZ (only to Q7), DE (oral support on Q7), DK, EE, ES (but it is not necessary to 
change the Directive), FI, FR (questions to be addressed to paying agents), IT (only to Q7), 
LV (
only to Q7), LU (only to Q7), NL (only to Q8), MT, PL (subject to the conditions 
mentioned below), SL, UK (only to Q7). 
DK: an affirmative answer from the Expert Group to Q8 would be constructive; the working 
document has not been consulted with the representative of Danish paying agents. 
LU: proposition made in Q7 is acceptable, but not Q8 because it would increase the 
administrative burden on paying agents. 
LV: An indicative list of possible cases when the professional activity or personal status of a 
beneficial owner shows that the Member State of his permanent address is not the same of his 
tax residence would be appropriate to assist paying agents. An alternative solution could be 
the possibility to amend the Directive in a way to oblige the MS of the permanent address of 
the individual to transfer the information to the Member State of the individual’s tax 
residence. This could reduce the administrative burden on paying agents in situations when 
they do not have the above mentioned documentary proof of tax residence at their disposal.  
 
NL:  in NL no particular rules are applied to determine the identity and the residence of 
diplomatic personnel and the personnel of international institutions.  NL agrees that it is a 
problem and suggests modifying art. 3(3) (b) to solve this problem (the use of a certificate of 
tax residence). 
 
PL: Review of the current rules of the Savings Directive would be desirable as a reference to 
permanent address for the purpose of establishing tax residence can cause some difficulties. 
However, the amendment proposed in point 2.2.2 would not improve the present rules. Only 
certificates of tax residence can prove tax residence. In PL’s opinion, the goal could be 
achieved only by obliging all paying agents to request a certificate of tax residence from all 
their customers. It seems not to be too burdensome to ask the tax authority for a certificate of 
residence, especially when the customer wants to exercise the benefits of a bilateral 
convention against double taxation. Documents other than certificates of tax residence (like 
consular certificates) cannot be regarded as a reliable evidence for tax residence. 
 
EN 
14 
  EN 

SL: suggestions in line with the ultimate aim of the Directive.  However, due to its 
complexity, the administrative burden of paying agents could increase significantly. 
 
NO (to both questions): IE  
IE: it appears burdensome and unnecessary; even if current practice can lead to double non-
taxation, until the Commission produces evidence of the extent of this, IE would not be in 
favour of an amendment.  
 
RESERVED POSITIONBG 
BG: it is impossible to answers Q7 and Q 8 on behalf of the paying agents. 
 
ARTICLE 4: "DEFINITION OF PAYING AGENT" 
Q9: What would be the impact on economic operators making interest payments of an 
amendment to Article 4(2) of the Savings Directive, according to which all such payments 
made to a transparent entity (with the only exclusion of UCITS) established in another 
Member State would have to be submitted to the simplified reporting of the last phrase of 
Article 4(2), or to withholding tax under Article 11(5) of the same Directive? 

Q10: Would the establishment of a “positive” list of the categories of transparent entities 
for which such provisions would apply, help make such an amendment acceptable?  

Q11: Could the establishment of a “negative” list of the categories of entities certainly 
excluded from the “paying agent on receipt” provisions be considered a valid alternative to 
the “positive” list described in question 10, if such “negative” list is coupled with the 
establishment of a common model of certificate to be issued by the tax administrations in 
favour of those individual entities which does not belong to the categories included in such 
a “negative list”, but are nevertheless actually taxed on their own income, including 
interest income, on a yearly basis? 

Q12: If the “look-through” approach for establishment of beneficial ownership described 
in §2.1.1 is adopted, would upstream economic operators making interest payments be able 
to apply the provisions of Article 4(2) of the Directive only to those payments for which an 
individual beneficial owner cannot be identified at their level?  

YES: CZ, DK, PL, ES, SK 
EN 
15 
  EN 

CZ: recommends a 'positive' list; a 'negative' list could be an alternative. The solutions 
referred to in Q10 and Q1 are preferred as regards the look-through approach. It is necessary 
to analyze whether the current wording of the Savings Directive covers all required interest 
income and all needed areas.  
DK: recommends a 'negative' list; a 'positive' list would be less practicable.  
ES: no problem in extending the scope of Article 4.2. to transparent entities regardless of their 
legal form; recommends that a 'positive' list is regularly updated. Trusts have to be included 
as residual paying agents within the scope of the Directive.  
PL: does not see any objections against amending Art. 4(2) of the Directive in order to cover 
all transparent entities with this provision. However, it is worth mentioning that Art. 4(2) of 
the Directive in the wording proposed by the Commission Services would cover not only 
transparent entities but also these non-transparent entities which have legal personality and 
are subject to strict supervision but are also exempt from taxation. The question arises 
whether this is necessary or not. PL recommends a 'positive list'. Establishment of a negative 
list and a special kind of certificate seems to be too burdensome.  
SK: If this amendment is accepted, establishment of a “positive” list of the categories of 
transparent entities would be helpful. Establishment of a “negative” list could be a valid 
alternative to the “positive” list, but it is necessary to analyse which approach is less 
burdensome for individual entities, paying agents and tax administrations as well. 
 
NO: LU 
LU: concludes that art. 4(2) does not work because cases where the provision of that article 
applies to trusts are very rare. Moreover that mechanism does not apply to third countries, 
therefore LU does not see the usefulness of the proposition. 
 
RESERVED POSITION: BG, EE, FR, IE, IT, LV, MT, SL, UK, NL 
 
EE:  
As regards transparent entities, both a “positive” list and a “negative” list of the 
categories of transparent entities could be considered, while it is important to avoid as far as 
possible increasing the administrative burden on paying agents. 
 
FR
: the administrative burden of paying agents could increase significantly.  France 
recommends the establishment of a positive list (to be regularly adapted). A negative list 
would be less practical.  On Q 12, the approach proposed by the Commission would indeed be 
an ideal solution but seems quite complex to implement. 
IE: no objection in principle, but the answers depends on the outcome of the discussion with 
the Expert Group. Points to be clarified by the Commission: 
EN 
16 
  EN 

•  How will transparent entities be defined?  
•  Is it intended to cover entities that are transparent for tax purposes in all MS?  
•  Do MS have a common method of determining whether an entity is tax transparent or 
not?   
•  How is a paying agent to know whether an entity is tax transparent?  
•  Who will compile and keep such lists up to date?   
•  Is the Commission of the opinion that discretionary trusts, which are not tax 
transparent, fit within this proposal? 
The proposal may replace one uncertainty with another. Instead of requiring paying agents 
to establish whether an entity is residual or not, they would have to establish whether the 
entity is tax transparent.  
 
IT: partnerships whose income is taxed under general rules for business taxation should 
be kept out of the scope of the Directive. 
 
LV: if the scope of Article 4(2) is extended, a “positive” list of categories of entities 
would be helpful in order to ensure the correct application of the new requirements. The 
“negative” list could be an alternative. However, in both cases there will still remain 
additional work for the upstream economic operators if the scope of Article 4(2) is 
extended. If extended, the approach that is less burdensome for upstream economic 
operators should be adopted. In the case of an introduction of the look–through approach, 
it would be appropriate to apply the provisions of Article 4 (2) only in cases where an 
individual beneficial owner of the savings income has not been determined under the look 
through approach.    
 
MT: Although Malta would have no problem with the idea of reporting payments made to 
transparent entities (not being UCITS) it has some doubt as to the practical aspect of this 
idea, particularly since Malta is not in favour of the setting-up of lists (whether positive or 
negative).  Without prejudice to the doubts that Malta has on the idea of the adoption of a 
“look-through” approach, in the case of the adoption of the said “look-through”, Malta 
would answer in the affirmative to question  12. 
SL: the administrative burden of paying agents could increase significantly.  With regard 
to lists and a link to the look-through approach, the issues are questionable, due to their 
complexity. 
UK is rather sceptical about introducing either a 'positive' or a 'negative' list of transparent 
entities and needs further information about particular entities that might be relevant to 
such a list. It is against the proposal to extend the provisions of paying agent on receipt to 
discretionary trusts which are not subject to annual taxation.  
NL:  the question of the application of article 4(2) should indeed be clarified, but 
transparent entities whose income is taxed under the general rules for business taxation 
should be kept out of the scope; on Q10 and 11, NL thinks a negative list is more 
practical, because it would be easier to realise by tax administrations of MS. (on Q12 NL 
does not support the look-through approach). 
EN 
17 
  EN 

  Q13: What would be the impact for both the upstream economic operators and the 
professional trustees of possible amendments to Article 4(2) of the Savings Directive aiming 
at extending the “paying agent on receipt” provisions to the interest payments made to 
those discretionary trusts (or other legal arrangements) whose income (including interest 
income) is not taxed on a yearly basis in its Member State of establishment, whenever the 
Anti-money laundering provisions cannot be used by the upstream economic operator to 
identify the beneficial owner?  Would it be possible to prepare a “negative” list, by Member 
State of establishment of the trust, of those categories of trusts or similar legal 
arrangements whose
 income (including interest income) is always subject to yearly taxation 
in their Member State of establishment?  

 
YES: FR, IT, LV, NL, PL 
FR:  
A modification of article 4 (2) would extend the scope of this article to all trusts and 
similar arrangements (which is not the case now because of the juridical concepts used in 
some MS).  In France, only some "fiducies" are "arrangements similar to trusts" 
LV: explicit extension of “paying agent on receipt” provisions to discretionary trusts, and 
other similar arrangements whose income is not taxed on a yearly basis in its MS of 
establishment is desirable in order to clarify the scope of Article 4(2) 
NL: would provisionally support the idea (trustee = residual entity, unless it is taxed on its 
own income) 
PL: Extension “paying agent on receipt” provisions to trusts seem to be reasonable. Setting 
up a “negative” list of trusts would be helpful; however, such institutions do not exist in 
Polish law, so it is crucial to know the positions of those MS where it is possible to establish 
trusts. 
 
NO: IE, LU, UK 
IE:
 purpose of proposal is unclear; an Irish discretionary trust would no longer be reportable, 
since they are taxed annually; establishing proof of annual taxation would seem to place an 
additional burden on the paying agents and MS concerned.  
LU: Discretionary trusts should already be in the scope of the Directive. Article 4 (2) does not 
work and the proposed approach is not the right one.  
UK: trusts are used for many purposes and it would be inappropriate to treat them in general 
as savings vehicles.  We believe that the key to effective taxation of trusts (or income from 
trusts) is through appropriate domestic arrangements.   
 
RESERVED POSITION: CZ, DK, ES, MT, SK 
DK
: as trust or similar arrangements cannot be set up under Danish law, DK is reluctant to 
volunteer an opinion as to whether or not it would be possible to set up a 'negative' list.  
EN 
18 
  EN 

MT: The Commission’s analysis deals with the particular issue of trusts holding accounts in 
their own name. In Malta, it is not possible for a trust to hold an account in its own name. 
Malta suggests that one should consider how rare this phenomenon is before actually 
embarking on the proposed exercise. 
 
 
 

Q14: Would it be legally and practically feasible to impose an obligation on the head offices 
established within the EU to report (or to withhold) on interest payments made through 
non-EU branches,  provided that such head offices have access to the information about 
the beneficial owner and the interest payment? 
Q15: Can the above objective be achieved by a common broad interpretation of Article 1(2) 
of the Savings Directive or should the Directive provide specific rules for cases of EU 
paying agents deliberately routing interest payments through their non-EU branches? 

YES: CZ, DK, EE, ES, FR, LU, MT, SL, SK, UK, PL 
CZ: there should be a specific rule in the Savings Directive to cover deliberate routing of 
interest payments through non-EU branches.  
DK: the objective could be obtained through a common interpretation of Article 1 (2).  
EE: in situations where an interest payment made by the EU head office is artificially routed 
through branches situated in third countries, it could be advisable to impose the legal 
obligations related to such payments on the head office, as they do not constitute separate 
legal persons. 
ES: any payment of interest made from a branch is subject to the rules and information 
requirements that apply to the head office in its state of establishment, therefore the Savings 
Directive does not need to be amended to cover these types of abuses of the law  
FR:  supports the proposition, but the Directive does need to be amended to achieve this 
objective. 
LU: guidelines in Luxembourg already provide an anti-abuse rule. 
LV: the imposition of an obligation on the head offices established within the EU to report on 
interest payments made through non-EU branches is a feasible solution, provided that such 
head offices have access to the necessary information. At the same time, the possibilities to 
withhold the savings tax by the head office from the payments of savings income made by the 
branch outside EU will be evaluated. It is advisable to clarify the Savings Directive by 
providing specific rules. 
 
MT:  Malta feels that where the Head Office has made the relevant arrangements, an 
obligation should be placed on Head Office to report the information (or withhold tax). Malta 
feels that specific anti-abuse provisions should be included within the Savings Directive for 
this purpose. 
EN 
19 
  EN 

PL: The Savings Directive should provide specific rules in the case of EU paying agents 
deliberately routing interest payments through their non-EU branches. Imposing obligations 
should not be done by broad interpretation of the provisions but ought to be explicitly 
specified. Such a revision would lead to the necessity of introducing sanctions in the domestic 
laws (on the basis of art. 1(2) of the Directive) if the head office does not comply with these 
rules, otherwise the provisions of the Directive could be ineffective. It should be   emphasised 
that a potential revision of the Directive would necessitate changing the agreements 
concluded between the European Union and the respective countries providing for measures 
equivalent to those laid down in the Savings Directive as well as the relevant bilateral 
agreements.  
SL: Yes, specific rules to be introduced in the Directive 
 
SK
: Yes, specific rules to be introduced in the Directive. 
UK: deliberate routing of interest payments could undermine the objective of the Savings 
Directive therefore the UK is open to exploring possible solutions, provided they do not 
impose a disproportionate burden on paying agents.  
 
NO: IE 
IE would require evidence that there is a problem before agreeing to any such proposal. They 
are not sure at this stage whether a common broad interpretation of Article 1(2) would 
provide a solution. If a solution is necessary, then a legal solution would be the only answer; 
there may be legal difficulties with the proposal and IE would like to have a legal opinion 
from the legal services of the Commission before considering this issue further.  
 
RESERVED POSITION: BG, NL 
 
BG: A 
wider legal analysis should be made before imposing such an obligation.  In this 
regard, an explicit amendment to the Directive is needed. 
 
NL would like more clarity about what the Commission means by deliberately routing 
payments, before taking a definitive position.  They ask if a legal analysis of the proposition 
has been done by the Commission, because they fear that the bank secrecy provisions in some 
non-EU countries would stop branches from revealing client specific information. 
 
 
 
 

EN 
20 
  EN 

ARTICLE 6: "DEFINITION OF INTEREST PAYMENT"  
 
Q16: Does the current general exclusion of innovative financial products from the scope of 
the Savings Directive lead to distortion in financial markets? If so, can experts provide 
examples or demonstrations? Which kind of structured or derivative financial products 
could be considered as generating interest payments under a substance over form 
approach? Would it be desirable to slightly amend the Savings Directive in order to confirm 
that such an approach applies?  

 
YES: DK, EE, ES, FR, IT, PL 
DK: it is not necessary to amend the Directive in order to establish that in the case of 
derivative financial products the principle of substance over form is applied to establish 
whether or not any product is covered by the Savings Directive. Any examples or 
demonstrations provided by the Expert Group are awaited with much interest.  
EE : the Savings Directive in its current wording does not preclude the substance over form 
approach, as it refers to interest relating to debt claims of every kind in  article 6(1) (a). 
ES: enlarging the scope of implementation of the Directive to the above mentioned financial 
products would be desirable to avoid outstanding distortions.  
FR: It is necessary to amend the Directive to implement the principle of substance over form, 
to prevent any risks of the use of derivative products to avoid the application of the Directive. 
PL does not have any data which could indicate that a general exclusion of innovate financial 
products from the scope of the Savings Directive leads to distortions in financial markets. No 
analysis has been made in this field. However, it would be desirable to amend the Directive in 
order to indicate that “substance over form approach” applies, provided that it would be 
explicitly specified what it means. MS would have to stipulate in what circumstances it is 
considered that substance prevails over form (establish clear criteria, e.g. the percentage share 
of underlying products generating interest income in the whole structured product). It would 
be also relevant to ascertain the views of market operators on this point. 
 
NO: CZ, IE, LV, UK 
 
CZ
: this kind of payments should not fall under the Savings Directive.  
 
IE: no evidence has been produced that the exclusion of these products has caused any 
distortion in the market; 'substance over form' should not bring a financial instrument within 
the scope if it is not already included. How does the paying agent determine the substance of a 
financial instrument? If MS consider that such products should be included in the scope of the 
Directive then an amendment will be necessary.  
 
LV: is not able to evaluate the impact of the current exclusion; believes that the Savings 
Directive applies to income generated by derivative products only if the particular income 
EN 
21 
  EN 

wholly or partly qualifies as interest income within the meaning of Article 6(1) (a) and (b). 
 
UK: has some reservations about moving in the proposed direction. In so far as derivative 
products may resemble savings products then it may be reasonable to regard the resulting 
income as savings income. However, it is difficult to see how such income could be brought 
within the reporting requirements of the Directive without requiring paying agents to make 
difficult judgements about which income should be treated as savings income and which not.  
This uncertainty over defining and applying the substance over form approach suggests that it 
might not be workable in practice. 
 
 
RESERVED POSITION: LU, MT, SK, NL 
 
LU
: the answer depends on the outcome of the discussion with the Expert group. 
 
MT:  Malta has no evidence concerning distortions in financial markets in relation to such 
financial products.  Malta does not exclude such products (except perhaps swaps) from the 
scope of the Savings Directive as the substance over form approach is favoured. Malta 
supports the proposal for a clearer text on the Savings Directive which would confirm this 
approach. 
 
NL:
 unable to really comment as to the extent of distortion, if any, created by innovative 
products.   NL supports the Commission's approach that substance should prevail over form.  
A case by case analysis would be done in each Member State for each derivative and 
structured product. Due to the multitude of such products, it does not seem possible to give an 
overview or general guidelines. 
 
 
Q17: Does the current exclusion from the scope of the Savings Directive of all benefits 
from pensions and insurance contracts lead to distortions in financial markets? To what 
extent is the competition between UCITS and life-insurance driven by the Savings Directive 
and not by other economic, commercial, legal, tax, etc. factors? How many individuals, 
with an account in another Member State, put their savings in life insurance contracts 
rather than in UCITS just to avoid the Savings Directive obligations? Which amount of 
assets under management does this represent in the EU? 

Q18: Depending on your reply to the different elements of question 17, would it be 
desirable to amend the Savings Directive in order to include in its scope part or all of the 
benefits from revocable life-insurance, pension or annuity products when the underlying 
prevailing investment is directly or indirectly made of interest generating financial 
products?  

YES: ES, FR, SL 
EN 
22 
  EN 

ES: enlarging the scope of implementation of the Directive to the above mentioned financial 
products would be desirable to avoid outstanding distortions.  
FR: Distortions are inevitable, but more information and expertise is needed before proposing 
any amendment to the Directive. 
SL: Yes, but competition is driven mainly by other etc. tax, legal factors. No detailed data at 
our disposal. Amending the Directive would increase the complexity of the text. 
 
NO: CZ, NL, UK 
CZ: there are no distortions in financial markets.  
NL:  refers to preamble 13 of the Directive. It does not consider that the scope of the Savings 
Directive should be extended to include insurance and pension benefits.   
 
UK
: not sure whether wrapper products create a distortion effect. It seems likely that 
consumers would not buy such products primarily for savings purposes, although there may 
be exceptions.  Unless there is evidence to the contrary, we would take the view that 
revocable life insurance, pension or annuity products, should remain outside the scope of the 
Directive. 
 
  
RESERVED POSITION: DK, IE, LU, LV, MT, PL, SK 
DK: To include life-insurance, pension and annuity products, whether fully or partly, in the 
scope of the Savings Directive would in our opinion be a wide and radical extension of the 
scope of the Directive and should not be recommended without extensive research and 
deliberation. As an outset for such deliberation, the Expert Group’s answer to Question 17 
could be of great interest.  
IE: answers depend on the outcome of the discussion with the Expert Group. No evidence has 
been produced that the exclusion has caused any distortion in the market or that individuals 
are switching from UCITS to life insurance contracts to avoid the Savings Directive.  
 
LU:  the answer depends on the outcome of the discussion with the Expert group. 
 
LV
: is not able to evaluate the impact of the current exclusion.  
 
MT: Malta has no evidence concerning distortions in financial markets in relation to the 
exclusion of benefits from pensions and insurance contracts. Malta supports the inclusion of 
benefits from pensions and insurance contracts for the purposes of the Savings Directive. 
PL: answer to this question should be given by market operators then further discussions 
between MS could be made. Poland does not have any information on possible distortions in 
financial markets due to the exclusion of all benefits from pension and insurance contracts 
from the scope of the Savings Directive. 
EN 
23 
  EN 

Q19: If an extension of the “paying agent on receipt” to all transparent entities (see above 
§3.1 and question 9) turned out not to be feasible, should interest income obtained through 
non-UCITS established within the EU be included within the scope of Article 6 of the 
Savings Directive in order to avoid distortions? To what extent is the competition within the 
EU between UCITS and non-UCITS driven by the Savings Directive and not by other 
economic, commercial, legal, tax, etc. factors? How many individuals, with an account in 
another Member State, put their savings in non-UCITS rather than in UCITS just to avoid 
EUSD obligations? How much assets under management does this represent in EU? 

Q20: Should the definition of “undertakings for collective investment established outside 
the territory [to which the Treaty applies]" be improved/clarified in the Savings Directive in 
order to avoid market distortions or tax evasion?  

Q21: What are the views of the Expert Group on the definition of collective investment 
funds or schemes provided by the 2002 OECD Model Agreement?
 Do the Experts see any 
definition which encompass all different investment funds (irrespective or their legal type, 
their distribution mode, their clients, their domicile) paying interest to their beneficial 
owner? Which definition of investment funds, either established inside or outside the EU, 
would the Experts suggest for the purposes of the Savings Directive? 

 
YES: CZ, DK, EE, ES, FR, IT, LV, MT, NL, PL, SK (only on Q20), SL, UK, DE (oral 
support) 
CZ: definition of the payments included in the scope of the Savings Directive should be 
clarified. The definition of the term "collective investment fund or scheme" provided by the 
2002 OECD Model Agreement seems to cover all possible types of collective investment 
vehicles.  
DK: We agree that the application to non-EU investment funds of the definition of 
“undertakings for collective investment…” could in some cases narrow the scope of the 
Savings Directive in ways that were not foreseen and are not desirable. In our opinion it is 
desirable to use, rather than the definition in the Swiss guidelines, the definition in Article 4 
(1) (h) of the OECD Model Agreement of “collective investment fund or scheme”. Thus, a 
clarification of the Savings Directive on this point would appear desirable. 
EE:  As regards the investment funds, in our view distinguishing UCITS and non-UCITS 
investment funds in applying the Savings Directive is not relevant and is likely to cause 
market distortions. We are, however, currently not able to evaluate the occurrence or extent of 
such distortions. 
 
ES: considers it logical to have an enlargement of the scope of Article 6. However, it is not 
worthwhile to clarify the concept of collective investment undertaking, since it can be derived 
from the financial directive or the laws of MS 
FR: supports the idea to include all interest income obtained through non-UCITS within the 
scope of article 6 of the Savings Directive. On Q20 the definition should indeed be clarified 
EN 
24 
  EN 

and the definition of collective investment funds should encompass all different investment 
funds. 
LV: cannot provide information on the scale of distortion of competition between UCITS and 
non-UCITS funds driven by the Savings Directive. In general, LV believes that different 
reporting obligations of the savings income could have an impact on competition between 
UCITS and non-UCITS funds. This could result in structuring investments through non-
UCITS to avoid reporting of savings income under the Savings Directive. The clarification of 
the term “undertakings for collective investment established outside the territory [to which the 
Treaty applies]” would facilitate more uniform application of the Savings Directive within EU 
MS. Therefore, the clarification of the term would be desirable. At present we cannot suggest 
a more comprehensive definition than that provided by the 2002 OECD Model Agreement.  
 
MT: Malta supports the inclusion of interest income obtained through non-UCITS for the 
purposes of the Savings Directive. Malta supports the proposal to improve / clarify the 
definition of “undertakings for collective investment established outside the territory [to 
which the Treaty applies]”. It would support the definition of the 2002 OECD Model 
Agreement. Malta feels that investment funds whose units are sold through a private 
placement should also be included for the purposes of the Savings Directive.  
NL: supports the idea to include all interest income obtained through non-UCITS within the 
scope of article 6 of the Savings Directive. NL also supports the idea of using the OECD 
definition to find an appropriate definition of "undertakings for collective investments" that 
would include all different investment funds regulated at national levels.  
PL: it would be desirable to wait for the replies of market operators after which further 
discussion on this issue could be held. Any proposal which could contribute to the 
improvement of the current operation of the Directive is worth considering. The definition of 
collective investment funds or schemes provided by the 2002 OECD Model Agreement seems 
to be comprehensive.  
SL: Yes, distortions should be avoided.  Currently there are no non-UCITS in Slovenia. 
 
UK: income from non-UCITS funds should be brought within the scope of the Directive 
which requires a workable definition to be found. There is a direct parallel with the problem 
concerning non-EU. It is not appropriate to follow the Swiss approach. UK would prefer an 
approach based on the characteristics of a fund and are ready to explore this further.  In 
finding a solution to both these problems it is important to aim for consistency of treatment, 
both within the EU and between EU and non-EU funds.   
NO: LU 
RESERVED POSITION: BG, IE 
BG: 
At this stage we do not have such information at our disposal and we cannot comment on 
Q19. A Clear definition of “undertakings for collective investment established outside the 
territory/to which the Treaty applies/” is a reasonable solution. 
EN 
25 
  EN 

IE: would like to see the report of the Expert Group, as well as some statistical evidence that 
the markets are being distorted.  
Q22: Does the current text of the provision on annualisation of the Savings Directive lead 
to distortion in financial markets?  

Q23: Should annualisation be compulsory for those Member States that already apply the 
same method on interest payments made to their resident customers for domestic tax 
purposes? 

YES: ES (Q23) 
ES: it seems reasonable not to fall into discriminatory treatment. The treatment should be the 
same regardless of the residence of the holder  
 
NO: CZ, LV, LU, PL, UK 
CZ: does not apply annualisation in domestic tax law and is therefore not able to answer Q22 
and is not in favour of establishing an obligation as referred to in Q23.  
LV: the current text of the provision on annualisation of interest payments may have a minor 
impact on financial markets; annualisation may not be made compulsory for the MS that 
already apply the same method to their resident customers according to their domestic law. 
PL: Poland does not have any information on the possible distortions caused by provisions on 
annualisation. Poland did not implement the option to annualise interest. Making 
annualisation compulsory for the MS that already apply the same method to their resident 
customers according to their domestic law seems to be too burdensome. 
UK: is not aware of any problems with the current arrangements and would not wish to make 
annualisation compulsory. 
LU:  its answer to Q22 is "no" and therefore LU is not in favour of establishing an obligation 
as referred to in Q23. 
 
RESERVED POSITION: BG, DK, IE, IT, NL, SK 
BG: 
We have not chosen the option of Article 6(5) of the Directive, however, application of 
this method would enhance compliance cost. 
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DK: does not apply annualisation in domestic tax law and would not volunteer any opinion on 
either of these questions.  
IE: no evidence of distortion so it is difficult to comment 
NL:  does not apply annualisation in domestic tax law. 
 
 
Q24: How could the current text of Article 6(8) and of the last sub-paragraph of  
Article 6 (1) be better detailed, in order to convince all Member States to accept the “home 
country rule”, at least for investment funds established within the EU?
 
YES: DK, ES, IT, LU, MT, NL, PL, UK 
DK is in agreement with the present application of the “home country rule”, has no objection 
to the present wording of the Savings Directive and would not oppose a clarification as 
proposed by the Commission. 
ES: supports the introduction of a coherent and logical rule.  
LU: supports the home country rule 
MT: Malta supports the home country rules. 
NL: would support any solution that could convince all MS to accept the "home country rule" 
PL: “Home country rule” is commonly recognised rule in international law. It ensures 
coherent application of the Directive. It would be desirable to consider explicit 
implementation of this rule into art. 6 of the Directive by specifying that paying agents shall 
rely on information produced by the fund or any agent appointed by the fund, according to the 
rules  in the Member State in which the fund is established. 
UK: supports the principle of "home country rule" and will give further consideration to the 
suggestion that a change in the text of Article 6(8) could help in this respect. 
RESERVED POSITION: IE, LV 
IE: in order to answer, it would be necessary to have an analysis of the problem – which MS 
have a difficulty with the rule and a description of the difficulty.  
LV: at present we cannot suggest text; assumes that the “home country rule” will be based on 
the classification for tax purposes in the Member State in which the fund or similar entity is 
established.  
    
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ARTICLE 8: "INFORMATION REPORTING BY THE PAYING AGENT" 
Q25: Would paying agents find it burdensome to be requested to specify the quarter of the 
tax year during which the interest payment is made? 

 
YES: ES, LV, NL  
ES
: in a system of massive data management it is good to increase the quality of the 
information received.  
LV: does not find it too burdensome to request paying agents to specify the quarter of the tax 
year in which the interest payment is made. However, in this case the necessary clarifications 
will be incorporated in the Directive.   
NL: would have no objection to the amendment. 
 
NO: BG, LU, UK 
BG: It would be burdensome for both paying agents and administration 
LU: unnecessary and not possible 
UK: is aware that paying agents would find it unreasonably burdensome to have to specify 
the quarter of the year in which an interest payment is made.  
 
RESERVED POSITION: DK, IE, IT, MT, PL, SL 
DK cannot recommend the said specification, in any case, if requested paying agents may 
find it easier to state the actual date.  
IE: this is a question for paying agents then the answer will depend on the report of the 
Experts Group; no objection to an amendment.  
MT: Malta does not feel that this suggestion would improve the effectiveness of the Savings 
Directive in any significant way. 
PL: It is not problematic issue from a tax administration point of view. However, the position 
of market operators should be crucial here. Every amendment means that paying agents’ IT 
systems have to be revised, so it is important to consider whether the goal of such an 
amendment is worth the burden which would be imposed on paying agents. 
SL: the administrative burden for paying agents could increase. 
 
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ARTICLE 13: "EXCEPTIONS TO THE WITHOLDING TAX PROCEDURE" 
 
Q26: Does the procedure of Article 13(1) (b) function effectively? Do paying agents 
established in Austria, Belgium and Luxembourg face difficulties to get the related fiscal 
certificates from specific categories of beneficial owners (expatriates, diplomats or 
personnel of international institutions)? If yes, are there improvements which could be 
proposed (e.g.: obliging Member States to involve their consulates in the issuing of 
certificates, provided that their tax authority is made aware of the information contained in 
the certificate) ? 
 
YES (to the first question, and therefore NO to the following ones): DK, ES, IE, IT, LU, 
LV, NL, PL, UK 
 
DK
: no problems have been brought to DK notice.  
 
ES: is not aware of any problems in this respect. Spain does not believe that consulates and 
embassies should be responsible for administering certificates for tax residence purposes for 
diplomats and similar staff.  
 
IE: not aware of any difficulties encountered by individuals requiring a tax residence 
certificate. Not in favour of involving consulates in issuing fiscal certificates; would like to 
see the report of the Expert Group before commenting further.  
  
LU: not aware of any difficulties in this area 
 
LV: a uniform certificate for non-deduction of withholding tax has been approved by the 
Cabinet of Ministers to enable residents of Latvia to apply the exception from the withholding 
tax procedure as provided for in Article 13 of the Directive. This certificate upon request will 
be issued to any individual resident of Latvia, including individuals employed abroad by the 
government of Latvia. 
 
NL:  
no problems have been brought to NL notice, so there is no particular need for 
improvement 
 
PL: can be issued only by tax authorities. The improvement which could be considered is the 
possibility of submitting applications for certificates in consulates of the respective MS. 
Consulates would send these applications to the competent tax authorities in the Member 
State of residence of the beneficial owner. Such a provision exists in Polish law. 
 
UK is not aware of any problems. The UK has issued over 800 exemption certificates. 
 
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