Ethics and governance in the European Financial centers

EFAMA, the European Fund and Asset Management Association, has announced that Mr Claude Kremer was appointed as Vice-President Mr Claude Kremer is Chairman of the Association of the Luxembourg Fund Industry (ALFI). He is also a founding partner and head of Investment Management of the law firm of Arendt & Medernach, based in Luxembourg.

EFAMA never answered my question on the failures of the Luxembourg UCITS legal and regulatory frameworks where Commissioner Mc Creevy did (detailed e-mail from Niall Bohan, Head of Unit. DG MARKT G4. European Commission, dated 19 March 2009).

It is before the EFAMA that the ALFI presented in January its deceptive views on the Madoff affair and its implications for the Luxembourg fund industry.

What was officially said definitely does not comply with the reality, which was confirmed later by two main facts late May:

1. Commissioner McCreevy admited failures in the transposition of the liability of depositories.

2. The Luxembourg regulator did not sanction UBS and admitted that UBSL shall have to indemnify a UCI depositor according to its obligations as a Luxembourg depositary bank, subject to valid and opposable contractual clauses to the contrary and, as the case may be, to a court decision in such matter.

In this context, I am afraid the appointment this month is not of good omen for the investor’s protection.

Swissinfo has reported that Aid organisations from countries currently defending banking secrecy laws said their governments need to change course in the interest of helping developing nations.
With a meeting in Berlin among the Organisation for Economic Co-operation and Development (OECD) unfolding later this month, aid organisations from Switzerland, Luxembourg and Austria united last Tuesday to argue the benefits behind an automatic exchange of banking data.
They said that wealthier nations should provide immediate administrative assistance to developing countries in tax matters by creating a type of most-favoured-nation status for them.
Peter Niggli, director of Alliance Sud, said any concessions made on granting administrative assistance in tax cases between the United States and the European Union should extend to all countries.
Developing countries should also step up their fight against tax evasion, the agencies said, while multinational corporations should provide a country-by-country breakdown of their balance sheets.

The Cercle de Coopération, the Luxembourg representative, underlined that the OECD definition of tax havens is not limited to jurisdictions with no or low taxes.

Read Press documentation (in French)

The Council of the European Union yesterday adopted conclusions on good governance in the tax area.

What was said is the following (I have added bold style):

1. The Council takes note of the Commission Communication on promoting good governance in tax matters (9281/09) presented to the Council on 5 May 2009 and, subsequent to its May 2008 Conclusions, recalls the importance of implementing the good governance tax principles of transparency, exchange of information and fair tax competition as a means of ensuring a level playing field and of combating cross border tax fraud and evasion.
2. The Council welcomes the suggestion in this Communication to accelerate the ongoing work on legislative proposals concerning the savings taxation directive (15733/08), the administrative cooperation directive (6035/09) and the recovery directive (6147/09).
3. The Council is committed to further discuss and promote the principle of good governance in the tax area at international level and towards third countries without prejudice to Community and Member States’ competences. It recalls the March 2009 European Council joint position that refers in this respect to the fight against tax evasion and the application of appropriate and gradual countermeasures towards uncooperative third country jurisdictions.
4. Recalling the Council Conclusions of 10 February 2009 the Council urges the Commission to swiftly present the negotiating result on the anti-fraud agreement with Liechtenstein. The Council notes the intention of the Commission to present negotiating directives for anti-fraud agreements with Monaco, Andorra, San Marino and Switzerland.
5. The Council welcomes the emerging broad international consensus on the need to enhance administrative cooperation and mutual assistance in the tax area and to apply the OECD standard as regards exchange of information on request (Article 26 paragraphs 4 and 5 OECD Model Convention), i.e. that provision of information can no longer be refused on the sole ground that the information is held by certain financial institutions, or on the sole ground that the requested state has no domestic interest in such information.
6. More specifically, as regards the ongoing review of the savings taxation directive, the Council notes the Presidency progress report. It welcomes the progress made and agrees that circumvention of savings taxation should be prevented and that the functioning of savings taxation should be improved in the framework of an overall agreement in particular by:

§         an extension of the scope of the Directive to at least other substantially equivalent income than just interest from savings,

§         the introduction of a look through approach for payments to certain non-EU entities and arrangements and a more systematic application of paying agent upon receipt responsibilities, and

§         a broader use of personal identification numbers and the use of the information on actual tax residence, when available, in identification procedures.

It calls for a rapid continuation of work in order to find constructive solutions to outstanding issues, among others possible options for covering certain insurance products, detailed provisions to ensure the coverage of certain untaxed entities and arrangements within the EU and in the dependent and associated territories as well as questions on further decision making.  The work should continue with a view to reaching a balanced political agreement in the autumn of 2009.

The Council also calls on the Commission to open consultations with Switzerland, Liechtenstein, Andorra, Monaco and San Marino on revising their respective agreements on savings taxation with the aim to ensure application of equivalent measures in line with international standards and the improvements agreed at EU level.

The Council encourages Member States with dependent or associated territories to consult with them to apply the same measures in the area of savings taxation as will apply at EU level.

The Council recalls that the issue of the transitional period remains to be addressed in accordance with Article 10 paragraph 2 of Directive 2003/48/EC subject to the conditions set out therein.

7. The Council also welcomes the proposals for the directives on administrative cooperation and recovery, expanding their scope as regards taxes and duties covered, simplifying the exchange of information by means of standardised forms, formats and channels of communication and facilitating recovery by using new or improved instruments. The Council stands ready to examine both proposals further and to continue its efforts in the autumn of 2009 to find solutions to outstanding issues that are fully consistent with the OECD standard (Article 26 OECD Model Convention).
8. The Council invites the future Presidency to report back on progress in the area of good governance in tax matters in the autumn of 2009.

What is said?

Ø      The Savings Directive is being reviewed and especially the principle of the transitional period is recalled: Belgium, Luxembourg and Austria will have to give up their legislation.

Ø      A possible global agreement with Third Countries on the tax information exchange is sought.