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EN

18.4.2023

Official Journal of the European Union
L 103/1

II
Non-legislative acts
REGULATIONS
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
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC 1, and in particular Article 8ac7, first subparagraph, thereof, Whereas:
1

Directive 2011/16/EU was amended by Council Directive EU 2021/514 2 in order to improve the provisions that relate to all forms of exchanges of information and administrative cooperation by providing for a mandatory automatic exchange of information reported by platform operators.

2

Given the nature and flexibility of digital platforms, the reporting obligation extends to those platform operators as defined in Annex V, Section IA, point 4b of Directive 2011/16/EU that perform commercial activity in the Union but are neither resident for tax purposes, nor incorporated or managed, nor have a permanent establishment in a Member State foreign platform operators. This ensures a level playing field for all digital platform operators regardless of their place of establishment and prevents unfair competition within the Union.

3

Directive 2011/16/EU lays down measures that are intended to reduce the administrative burden on foreign platform operators and the tax authorities of Member States, in cases where adequate arrangements exist which ensure that equivalent information is exchanged between a non-Union jurisdiction and a Member State.

4

Article 8ac7, first subparagraph, of Directive 2011/16/EU provides that the Commission is to, following a reasoned request by a Member State or on its own initiative, determine whether the information that is to be automatically received by a Member State is equivalent to that specified in Section III, paragraph B, of Annex V to that Directive.
Article 8ac7 also provides that this same procedure should apply where there is a necessity for determining that the information is no longer equivalent.

5

This Regulation establishes the criteria for assessing and determining the extent to which the national law of a nonUnion jurisdiction and an agreement between the competent authorities of a Member State and a non-Union jurisdiction ensures that the information that is to be automatically received by that Member State relates to the activities within the scope of Directive 2011/16/EU and is equivalent to the information required under the reporting rules set out in that Directive.

1 OJ L 64, 11.3.2011, p. 1.
2 OJ L 104, 25.3.2021, p. 1.