National register of certified financial intermediaries
1. Member States referred to in Article 2(2) and (4) shall establish a national register of certified financial intermediaries.
2. Member States referred to in Article 2(3) and (5) that opt to apply Chapter III shall establish a national register of certified financial intermediaries.
3. Member States establishing a national register pursuant to paragraph 1 or 2 shall designate a competent authority responsible for maintaining and updating that national register.
4. The national registers shall include the following information on certified financial intermediaries:
(a)
the name of the certified financial intermediary;
(b)
the date of registration of the certified financial intermediary;
(c)
the contact details and any existing website of the certified financial intermediary;
(d)
the EUID or, where the certified financial intermediary has no EUID, the legal entity identifier (LEI) or any legal entity registration number issued by its country of residence.
5. For the purposes of this Article and of Articles 10 to 15, Member States shall permit a certified financial intermediary to assume the obligations and responsibilities set out in Articles 10 to 15 in respect of the position of a financial intermediary that is part of the securities payment chain and is not a certified financial intermediary if the financial intermediary and the certified financial intermediary have so agreed.
6. The national registers shall be made publicly accessible on the European Certified Financial Intermediary Portal referred to in Article 6 (the ‘Portal’), via a website of the Commission, and updated at least once a month.
7. Member States shall remain responsible for any decisions regarding the registration or rejection of a financial intermediary or regarding the removal of a financial intermediary from their national registers, and for measures imposed on financial intermediaries.
8. Any rights and obligations stemming from decisions as referred to in paragraph 7 shall be applicable from the notification by the corresponding Member State to the financial intermediary concerned.
9. The Commission shall not be held liable under any circumstances for the content on the Portal or for the failure to exchange information between Member States regarding the registration or rejection of a financial intermediary or regarding the removal of a financial intermediary from their national registers or for any measures imposed by Member States on financial intermediaries.
Development and operation of the European Certified Financial Intermediary Portal
1. The Commission shall develop and operate the European Certified Financial Intermediary Portal (the ‘Portal’) either by its own means or through a third party.
2. If the Commission decides to develop or operate the Portal through a third party, the Commission shall choose the third party and enforce the agreement concluded with that third party in accordance with Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council ( 16 ) .
3. The Portal shall serve as the electronic access point for financial intermediaries to request to register with the national registers of the Member States. The Portal shall accommodate information exchange between Member States regarding the registration or rejection of a financial intermediary, and the removal of a financial intermediary from a national register and the measures imposed on financial intermediaries.
4. Member States shall ensure that the information required pursuant to Articles 7, 8 and 9 of this Directive is provided to the Portal and that their national registers are interoperable within the Portal.
5. The Commission shall adopt implementing acts laying down the technical specifications for the operation of the Portal. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21.
Requirement to register as a certified financial intermediary
1. Member States maintaining a national register in accordance with Article 5 shall require all large institutions that handle payments of dividends and, where relevant, interest on securities issued by a resident in their jurisdiction, and central securities depositories as referred to in Article 3(1), point (4), that are the withholding tax agent for those payments, to register with their national register.
2. Member States maintaining a national register in accordance with Article 5 shall enable, upon request, the registration in that national register of any financial intermediary that meets the requirements of Article 8.
Registration procedure
1. Member States shall ensure that where a financial intermediary submits a request to register with their national register, that request shall be approved within three months of the date of submission, provided the financial intermediary provides evidence that it fulfils all of the following requirements:
(a)
it is resident for tax purposes in a Member State or a third-country jurisdiction not included in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes or in Table I of the Annex to Delegated Regulation (EU) 2016/1675;
(b)
if the requesting financial intermediary is a credit institution, an investment firm or a central securities depository, an authorisation from the relevant competent authority in the jurisdiction of residence for tax purposes to perform custodial activities; or if the requesting financial intermediary is a central securities depository, an authorisation from the relevant competent authority in the jurisdiction of residence for tax purposes to perform such activities; where the requesting financial intermediary is resident for tax purposes in a third-country jurisdiction and has obtained such authorisation under national rules that are not deemed comparable with Directive 2013/36/EU or Directive 2014/65/EU, as applicable, by a Member State, that Member State may deem this requirement to be unfulfilled;
(c)
a declaration of compliance with the provisions of Directive (EU) 2015/849 of the European Parliament and of the Council ( 17 ) or with comparable rules of a third-country jurisdiction not included in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes or in Table I of the Annex to Delegated Regulation (EU) 2016/1675.
2. A Member State shall permit a certified financial intermediary to act on behalf of another financial intermediary that is part of the same group and to assume the obligation set out in Article 7 and the obligations and responsibilities set out in Articles 10 to 15.
3. If the requesting financial intermediary is resident for tax purposes in a third-country jurisdiction where neither Directive 2010/24/EU nor a convention that provides assistance in the collection of taxes applies to the recovery of all or part of the loss of withholding tax revenue pursuant to Article 18, the Member State to which the request has been submitted may require sufficient and proportionate guarantees to ensure the recovery of such loss in relation to the request for relief.
4. A Member State may reject the request for registration if:
(a)
the financial intermediary concerned has committed one or more offences or infringements under the national rules of a Member State or of another jurisdiction and such offences or infringements have led to a loss of withholding tax revenue; or
(b)
an inquiry into potential tax fraud or tax abuse is opened by a Member State or another jurisdiction in relation to the financial intermediary concerned which could lead to a loss of withholding tax revenue.
For the purposes of point (a), the source Member State shall only take such offences or infringements into account to the extent that they came to the attention of that Member State not more than 10 years prior to the submission of the request for registration.
5. Financial intermediaries shall, without undue delay, notify the competent authority of the Member State of any change in the information provided under paragraph 1, points (a) to (c).
6. Where the request for registration is rejected pursuant to paragraph 4, the Member State shall ensure that the financial intermediary is allowed to submit another request for registration, if the Member State has determined that the circumstances that caused the rejection have been remedied.
Removal from the national register
1. A Member State shall remove from its national register any certified financial intermediary registered pursuant to Article 7(2), where the certified financial intermediary:
(a)
requests such removal; or
(b)
no longer meets the requirements of Article 8.
2. A Member State may remove from its national register any certified financial intermediary registered pursuant to Article 7(2):
(a)
where the certified financial intermediary has been found not to have complied with its obligations under this Directive or Directive (EU) 2015/849 or under comparable rules of a third country of residence for tax purposes; or
(b)
where the certified financial intermediary has been found to have committed one or more offences or infringements under the national rules of a Member State or another jurisdiction and such offences or infringements have led to a loss of withholding tax revenue; or
(c)
where an inquiry is opened by a Member State or another jurisdiction in relation to the certified financial intermediary concerning potential tax fraud or tax abuse which could lead to a loss of withholding tax revenue.
For the purposes of point (b), the source Member State shall only take such offences or infringements into account to the extent that they became known to that Member State not more than 10 years prior to the removal of the financial intermediary.
3. A Member State may prohibit any certified financial intermediary registered pursuant to Article 7(1) from requesting relief under this Directive:
(a)
where the certified financial intermediary has been found not to have complied with its obligations under this Directive or Directive (EU) 2015/849 or with the comparable rules of a third country of residence for tax purposes; or
(b)
where the certified financial intermediary has been found to have committed one or more offences or infringements under the national rules of a Member State or another jurisdiction and such offences or infringements have led to a loss of withholding tax revenue; or
(c)
where an inquiry is opened by a Member State or another jurisdiction in relation to the certified financial intermediary concerning potential tax fraud or tax abuse which could lead to a loss of withholding tax revenue.
For the purposes of point (b), the source Member State shall only take such offences or infringements into account to the extent that they became known to that Member State not more than 10 years prior to the prohibition to request relief.
Where a Member State prohibits a certified financial intermediary pursuant to this paragraph, it shall without delay update the information contained in the national register accordingly.
4. Where a Member State removes a financial intermediary from the national register pursuant to paragraph 1 or 2, or prohibits a certified financial intermediary from requesting relief pursuant to paragraph 3, the Member State shall ensure that the financial intermediary is re-registered or is allowed to submit another request for relief, if the Member State determines that the circumstances that caused the removal or prohibition have been remedied.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
