The countdown is on: one year to get ready for the EU General Data Protection Regulation GDPR

On 25 May 2016 the EU General Data Protection Regulation (GDPR) entered into force. After the elapse of the 2-year transposition period, it will become directly applicable on 25 May 2018.

The new EU data protection legislation introduces substantial changes for companies dealing with personal data: As a selection, the new requirements on transparency, on proportionality as well as on documentation when processing personal data are among the key changes. These are significant challenges for companies. In addition, the new legislation substantially improves the rights of the concerned individuals – the data subjects. Thanks to the GDPR, they now have clear-cut rights with regard to companies processing their data. Inter alia the key rights include the right on information, on rectification and deletion of personal data, on restriction of processing, on portability as well as the right to object processing. As data controllers, companies have to be able to comply with all these rights.

Besides new duties and compliance obligations for companies, data protection authorities are given new competences and enforcement instruments. Standing out are the new sanctions of up to the amount of EUR 20m or 4% of the international annual turnover of the concerned company, whichever is higher.

Recommendation

Swiss companies that (e.g. because they do business in the EU) are subject to the GDPR now have one year to make the necessary adaptions to comply with the GDPR. The new requirements are to be analyzed, gaps to be identified and mitigation actions to be planned and implemented. It is important to be prepared.

Contacts:

Susanne Hofmann
Legal Compliance Leader
+41 58 792 17 12
Email

Michael Adrian Meyer
Legal Services – Senior Manager
+41 58 792 51 31
Email

Reto Häni
Partner and Leader Cybersecurity
+41 58 792 75 12
Email

Idir Laurent Khiar
Legal Services – Assistant Manager
+41 58 792 17 51
Email

EUDTG Newsletter March – April 2017

EU direct tax law is a fast developing area. This presents taxpayers, in particular groups and multinational corporations that have an EU or European Economic Area (EEA) presence, with various challenges.

The following topics are covered in this issue of EU Tax News:

CJEU Cases

  • Belgium: CJEU judgment on interpretation of the subject-to-tax requirement of the Parent-Subsidiary Directive: Wereldhave
  • Belgium: AG Opinion on interest deduction limitation in light of the Parent-Subsidiary Directive: Argenta
  • Germany: CJEU referral on the German CFC rules: X

National Developments

  • Belgium: Supreme Court does not allow withholding tax refunds for dividends received by investment companies before 12 June 2003
  • Belgium: CJEU referral by the Commission of Belgium over the discriminatory tax treatment of foreign real estate income
  • Finland: Supreme Administrative Court confirms tax treatment of dividend income from third countries to be in line with Articles 63 and 65 TFEU
  • Italy: Amendments to the NID and Patent Box Regime
  • Norway: Government’s response to ESA’s decision on the compatibility of the Norwegian interest limitation rules with the freedom of establishment
  • Poland: Supreme Administrative Court judgment on the settlement of foreign branch losses
  • Spain: Supreme Court judgment on State aid recovery procedure
  • United Kingdom: England and Wales High Court judgment regarding repayment of stamp duty reserve tax: Jazztel plc v The Commissioners for HMRC
  • United Kingdom: The Great Repeal Bill White Paper

EU Developments

  • EU: European Parliament clears way for formal adoption of ATAD II by the ECOFIN Council
  • EU: Update on EU proposal for public country-by-country reporting
  • EU: Council adopts conclusions on EU relations with the Swiss Confederation
  • EU: Informal ECOFIN Council held in Malta in early April

Fiscal State aid

  • Greece: CJEU judgment on State aid implemented by Greece: Ellinikos Chrysos AE
  • Italy: CJEU judgment on Italian bankruptcy procedure: Marco Identi

Read the full newsletter here.

This EU Tax Newsletter is prepared by members of PwC’s international EU Direct Tax Group (EUDTG).

Further information about our service offerings in EU taxes: www.pwc.com/eudtg

PwC Deal Talk – Doing Deals in France from a Swiss Investor’s Perspective

Edition 3/2017

With nearly 600 kilometers of common border, France and Switzerland have historically maintained close trading ties. In 2015, Swiss exports to France amounted to USD 14.4 bn mainly consisting of pharmaceutical and chemicals products and watchmaking items. With cumulative invested capital of EUR 42.4 bn at the end of 2015, Switzerland is amongst the biggest foreign investors in France.

France recently emerged as one of the most active European countries in terms of venture capital investments, paving the way for further foreign capital inflow. In the meantime, the French economy is slowly recovering from the 2008 global financial crisis and has shown a GDP growth reaching 1.1% in 2016. This recovery was also visible in M&A activity, which increased in terms of value and number of deals, particularly in the past three years.

Nonetheless, the French market is distinct from the rest of Europe and investors need to be aware of some unique features applicable to transactions. With first-hand experience and local teams on the ground, PwC can help you to avoid common pitfalls when doing deals in France.

Read Attachment

Contact Us

Sascha Beer
Partner
Corporate Finance / M&A
Tel. +41 58 792 1539
sascha.beer@ch.pwc.com

Nico Psarras
Partner
Head of Transaction Services
Tel. +41 58 792 1572
nico.psarras@ch.pwc.com

Maxime Dubouloz
Head of M&A Western Switzerland
Tel. +41 58 792 9058
maxime.dubouloz@ch.pwc.com

Mathieu Gravier
Senior Manager, Transaction Services
Tel. +41 58 792 9300
gravier.mathieu@ch.pwc.com

 

EUDTG Newsletter January – February 2017

EU direct tax law is a fast developing area. This presents taxpayers, in particular groups and multinational corporations that have an EU or European Economic Area (EEA) presence, with various challenges.

The following topics are covered in this issue of EU Tax News:

CJEU Cases

  • Netherlands: CJEU judgment on pro-rata personal deductions for non-resident taxpayers: X
  • Netherlands:  CJEU judgment on the application of Article 64 (1) TFEU concerning the extended recovery period for foreign assets: X

    National Developments
  • Belgium: New Innovation Income Deduction replaces the Patent Income Deduction
  • Finland: Supreme Administrative Court confirms withholding tax treatment for non-UCITS and non-listed Maltese SICAV
  • Hungary:  Hungarian implementation of ATAD’s CFC rules
  • Italy: Italian Tax Court of First Instance judgment on the compatibility of withholding tax levied on dividends distributed to a US pension fund with EU law
  • Sweden: Swedish Supreme Administrative Court judgments on the denial of refund of Swedish withholding tax
  • Switzerland: Corporate Tax Reform III rejected by the Swiss voters
  • United Kingdom: Supreme Court judgment in R (on the application of Miller and another) v Secretary of State for Exiting the European Union

EU Developments

  • EU: ECOFIN Council agreement on ATAD II
  • EU: European Parliament Resolution of 14 February 2017 on the annual report on EU competition policy
  • EU: Public CBCR: European Parliament’s joint ECON & JURI Committee issues draft report
  • EU: EU Member States send letter to non-EU 92 countries in context of common EU list of non-cooperative tax jurisdictions
  • Spain European Commission requests Spain to amend its law implementing reporting obligations for certain assets located outside of Spain

Fiscal State aid

  • Luxembourg: Non-confidential version of the European Commission’s State aid opening decision in GDF Suez
  • Spain: AG Opinion on tax exemptions for Church-run schools

Read the full newsletter here.

This EU Tax Newsletter is prepared by members of PwC’s international EU Direct Tax Group (EUDTG).

Further information about our service offerings in EU taxes: www.pwc.com/eudtg

Changes to legislation governing Swiss VAT liability

Swiss VAT law places new obligations on foreign companies

The partial amendment to the Federal Law on Value Added Tax (VAT law) will impact companies not established in Switzerland from 1 January 2018. Businesses which are not based in Switzerland but provide supplies vis-a-vis Switzerland may be liable to pay Swiss VAT. This will apply in instances where a foreign company generates turnover in Switzerland, in other words in cases where Switzerland is the place of supply for the purposes of VAT. The following information outlines the VAT situation in Switzerland today and in the near future.


Download the full report here.

If you have any questions, please get in touch your usual PwC contact person or our expert

Julia Sailer
Director
Leader VAT compliance Switzerland
Tel. +41 58 792 44 57
julia.sailer@ch.pwc.com

Additional Languages for this report

German
French
Italian

Financial services businesses may not be eligible for the European Cost Sharing exemption – opinion of the Advocate General in DNB Banka (C-326/15) and Aviva (C-605/15)

Summary

The Advocate General (“AG”) issued its opinion on the application of the cost-sharing exemption (“CSE”) provided by article 132(1)(f) of the VAT Directive in two cases regarding financial services providers (i.e. banks and insurance companies). The opinion of the AG is not in line with the position of the EU Commission and the discussions in various meetings of the VAT Committee in 2010, 2014 and 2015 and it also appears not to be in line with the pending infringement procedures of the EU Commission against Luxembourg (C-274/15) and Germany (C-616/15).

Cost Sharing Exemption

The CSE allows businesses to come together and pool resources as a means of sharing these resources between each other free of VAT (as opposed to procuring services externally with VAT) on the grounds that these resources are directly necessary for the activities of the members of the cost-sharing group. In order to benefit from this exemption, the group needs to consist of entities engaged in VAT-exempt or non-taxable activities and the supplies need to be made by the group to the members at cost.

Currently, the majority of the EU member states allow the application of the CSE to financial services businesses.

Position of the AG

  • The CSE should apply to services supplied by the group to its members and not vice versa (i.e., the contribution of resources by the members of the group to the group (to the pool) is not VAT-exempt).
  • The members eligible for the application of the CSE are companies/bodies acting in the public interest (this excludes financial services businesses).
  • The CSE is only applicable to services supplied between the group and its members established in the same EU member state (i.e., the CSE cannot apply on a cross-border basis).

Potential implications

We anticipate that the impact on the financial services sector will be significant if the Court of Justice of the European Union (“Court”) decides to follow the opinion of the AG. Specifically, the cost of the procurement of services for the benefit of the whole group will be higher (because of irrecoverable VAT). This would mean that financial services businesses would have to consider other available options to manage the VAT costs on the shared services and/or resources. One of the options could be a set-up of a cost-pooling arrangement (cost-contribution arrangement as per chapter VIII of the OECD guidance 2010) to pool resources that are mutually beneficial for all participants and to share the costs of the benefits that each participant derives from the pool. Another option could be to undertake a detailed review of the services supplied between the members to confirm whether they could benefit from the local VAT exemptions.

For the present, we must wait to see if, and to which extent, the Court agrees with the AG’s opinion. However, please do not hesitate to contact us if you would like to discuss the above.

Contacts:

Tobias Meier Kern
Director Indirect Taxes
tobias.meier.kern@ch.pwc.com
+41 58 792 4369

Marcella Dzienisik
Senior Manager Indirect Taxes
marcella.dzienisik@ch.pwc.com
+41 58 792 4938

 

EU: Anti-Tax Avoidance Directive II (“ATAD II”)

On February 21, 2017, the 28 European Union (EU) Finance Ministers in the ECOFIN Council meeting reached political agreement on the Council Directive amending Directive (EU) 2016/1164 regarding hybrid mismatches with third countries with a view to adopting it (subject to receiving European Parliament’s opinion and legal-linguistic revision).

ATAD II basically adds to the existing ATAD I (adopted in 2016 and effective as of 2019) rules on mismatches with third countries and basically extends the hybrid mismatch definition to also include mismatches resulting from arrangements involving PEs, hybrid transfers, imported mismatches, and reverse hybrid entities. In addition, ATAD II includes rules on tax residency mismatches.

ATAD II still needs to be submitted for formal adoption at a next ECOFIN Council meeting after the European Parliament has formally issued its opinion on the EC proposal, which is currently scheduled for 26 April 2017.

Once formally adopted, EU Member States will need to transpose the provisions by 31 December 2019 and apply them per 1 January 2020. By way of derogation, the specific reverse hybrid entity rule would need to be transposed by 31 December 2021 and applied per 1 January 2022, however payments to reverse hybrids would not be deductible anymore from 1 January 2020.

The further developments in the EU in this regard should be closely monitored as they may potentially have implications for Swiss Finance Branches and Principal Companies.

For more information please find below the newsletter from our EUDTG network.

Download EUDTG newsletter

 

GDPR key challenges: #2 mandatory data breach notification

The EU General Data Protection Regulation (GDPR) introduces a mandatory data breach notification regime. Companies should develop or update their internal data breach notification procedures by May 2018. These should comprise incident identification systems as well as incident response plans.

 Data breaches

Data breaches will have to be reported to the competent supervisory authority without undue delay and, where feasible, within 72 hours. A data breach is defined as “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed”. It is important to note that no notification is required if the data breach is unlikely to result in a risk to the rights and freedoms of the persons affected. However, guidance on how to determine such risk to the rights and freedoms of data subjects is yet to be provided. The European Data Protection Board (EDPB) is expected to issue further guidance on data breach notifications.

Furthermore, a data breach likely to result in a high risk to the rights and freedoms of data subjects in general requires the company to communicate the breach to the data subjects concerned without undue delay. The need to communicate such information may also be triggered by a decision of the supervisory authority deeming a particular data breach to pose a high risk to natural persons.

This notification regime also applies to outsourcing. If a company outsources data processing to a data processor, the company must make sure that it will be informed by the data processor immediately if any data breaches occur.

Read more…

 

Contacts:

Susanne Hofmann
PwC | Legal Compliance Leader
Office: +41 58 792 17 12
Mobile: +41 79 286 83 67
Email
PricewaterhouseCoopers AG
Birchstrasse 160 | Postfach | CH-8050 Zurich

Michael Adrian Meyer
PwC | Legal Services – Senior Manager
Office: +41 58 792 51 31
Mobile: +41 79 150 75 64
Email
PricewaterhouseCoopers AG
St. Jakobs-Strasse 25 | CH-4002 Basel

Dr. Idir Laurent Khiar
PwC | Legal Services – Assistant Manager
Office: +41 58 792 17 51
Mobile: +41 79 267 72 16
Email
PricewaterhouseCoopers AG
Birchstrasse 160 | Postfach | CH-8050 Zurich

 

The IDD implementation taking a clearer shape: latest EIOPA publications

The Insurance Distribution Directive was published in the Official Journal of the European Union in February 2016.

It will be transposed into law of the EU Member states by 23 February 2018.
The IDD applies to a wide group of insurance and reinsurance distributors and introduces a set of extended and new requirements around the oversight, governance and distribution of insurance products.
Affected firms will need to be compliant with the requirements from that date.

Read the Flyer

Please do not hesitate to contact us.

Philip Kirkpatrick
Insurance Risk and Regulatory Leader
+41 58 792 23 61
philip.d.kirkpatrick@ch.pwc.com

Nadejda Groubnik
Insurance Regulatory &
Compliance Services
+41 58 792 24 52
nadejda.groubnik@ch.pwc.com

Robert Borja
Insurance Risk Assurance Leader
+41 58 792 29 56
robert.borja@ch.pwc.com

PwC AFME report on operational impact of Brexit on banking

AFME has recently commissioned a report from PwC, outlining the operational impacts and transformation challenges that Brexit poses to the provision of banking services in the EU.

The report, ‘Planning for Brexit – Operational impacts on wholesale banking andbrexit capital markets in Europe’ aims to provide policymakers and other industry stakeholders, both in the EU27 and the UK, with a fact-based analysis of how these challenges are likely to affect the financial services industry. To inform the study, information was gathered by PwC from previous case studies and from 15 banks spanning a range of sizes, activities, origins and legal entity structures. They include EU27 headquartered, UK headquartered and non-EU headquartered banks in broadly even measure.

Key findings of the report include:
The Brexit transformation will be highly complex for wholesale banks and contains many interdependent activities. Firms providing a significant proportion of current industry capacity will need to execute transformation programmes which will extend beyond Article 50 timescales and in many cases up to three years after Brexit has been completed; or even longer if the post-Brexit trading relationship between the EU and UK remains unresolved for a protracted period.

In executing their transformation programmes, banks will be heavily dependent upon timely approval of licenses by their new EU regulators. This represents a critical step in the implementation of new business models and is likely to occur at a time when regulators will see a peak in requests following Article 50 activation.

Banks are currently proceeding with two year tactical plans to maintain continuity of service.  However, these plans are likely to be sub-optimal for clients and market effectiveness, and will be dependent on reaching agreement about an interim business model that is acceptable to new EU27 regulators and can be put in place before the UK leaves the EU.

Read the report.

Please let us know if you are interested in discussing this.

Günther Dobrauz
Partner
Leader Legal FS Regulatory &
Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com