Commission Implementing Regulation (EU) 2023/823 of 13 April 2023 laying down detailed rules for implementing certain provisions of Council Directive 2011/16/EU as regards the assessment and determination of equivalence of information in an agreement between the competent authorities of a Member State and a non-Union jurisdiction

• CELEX: Implementing Regulation (EU) 2023/823
• Articles: 9

Article 1 Criteria for assessing and determining equivalence

The Commission shall apply the criteria set out in Articles 2 to 7 of this Regulation when determining whether the information that is required to be automatically exchanged pursuant to an agreement between competent authorities of a Member State and a non-Union jurisdiction is, within the meaning of subparagraph A(7) of Section I of Annex V to Directive 2011/16/EU, equivalent to that specified in paragraph B of Section III of Annex V to that Directive.

Article 2 Reporting Platform Operator

1.   The Commission shall assess the definitions regarding reporting platform operator set out in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction, to determine their equivalence with the definitions set out in Section I, subparagraphs A(1) to A(4) of Annex V to Directive 2011/16/EU.

2.   Where a non-Union jurisdiction does not consider as a reporting platform operator a Platform Operator that facilitates the provision of relevant activities for which, over the previous calendar year, the aggregate consideration at the level of the platform is less than EUR 1 million or less than an amount approximately equivalent to EUR 1 million in the local currency of that jurisdiction, a determination of equivalence shall only apply to reporting platform operators as defined in the national law of the relevant non-Union jurisdiction.

Article 3 Reportable Sellers

The Commission shall assess the definitions regarding reportable sellers set out in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction, to determine their equivalence with the definitions set out in Section I, subparagraphs B(1) to B(4), and C(1) and C(2), of Annex V to Directive 2011/16/EU.

Article 4 Relevant Activity

1.   The Commission shall assess the definitions of relevant activity set out in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction, to determine their equivalence with the definitions set out in Section I, subparagraphs A(8), A(10), A(11), and C(9), of Annex V to Directive 2011/16/EU.

2.   Where a non-Union jurisdiction does not include in its national law one or more of the relevant activities as defined in Section I, subparagraph A(8) of Annex V to Directive 2011/16/EU as a relevant activity, a determination of equivalence shall only apply to information in relation to a relevant activity as defined in the national law of that non-Union jurisdiction.

Article 5 Due diligence procedures

The Commission shall assess the due diligence procedures laid down in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction to determine their equivalence with the due diligence procedures set out in Section II of Annex V to Directive 2011/16/EU and the definitions set out in Section I, subparagraphs C(3) to C(7), of Annex V to Directive 2011/16/EU.

Article 6 Reporting requirements

The Commission shall assess the reporting requirements laid down in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction to determine their equivalence with the reporting requirements set out in Section III, subparagraphs A(1), A(2), A(5), A(6) and A(7), and paragraph B, of Annex V to Directive 2011/16/EU, and the definitions set out in Section I, subparagraphs C(3) to C(8), of Annex V to Directive 2011/16/EU.

Article 7 Effective implementation

The Commission shall assess the rules and administrative procedures laid down in the national law of a non-Union jurisdiction and pursuant to an agreement between the competent authorities of a Member State and the non-Union jurisdiction to ensure the effective implementation of, and compliance with, the due diligence procedures and reporting requirements, and to determine their equivalence with the provisions set out in Section IV, paragraphs A to D of Annex V to Directive 2011/16/EU.

Article 8 Determination of equivalence

Where the criteria referred to in Article 1 and assessed in accordance with Articles 2 to 7 are met, the information that is required to be automatically exchanged pursuant to an agreement between the competent authorities of the Member State and the non-Union jurisdiction concerned shall be considered equivalent. That determination of equivalence shall apply to the same agreement between the competent authorities of any other Member State and the non-Union jurisdiction concerned.

Without prejudice to Article 2(2), a Reporting Platform Operator as defined in Section I, subparagraph A(4), point (b), of Annex V to Directive 2011/16/EU that is not considered a reporting platform operator under the national law of the relevant non-Union jurisdiction, shall be obliged to register and report information to a single Member State in accordance with Article 8ac(4) and Section IV, subparagraph F(1) of Annex V to Directive 2011/16/EU.

Without prejudice to Article 4(2), a reporting platform operator as defined in Section I, subparagraph A(4), point (b), of Annex V to Directive 2011/16/EU, that facilitates the carrying out of any relevant activity that is not considered a relevant activity under the national law of the relevant non-Union jurisdiction, shall be obliged to register and report information on Reportable Sellers with respect to such relevant activity to a single Member State in accordance with Article 8ac(4) and Section IV, subparagraph F(1) of Annex V to Directive 2011/16/EU.

Article 9 Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .