European Union (Tax Dispute Resolution Mechanisms) Regulations 2019 (S.I. No. 306 of 2019)
PART 3
Dispute Resolution by the Advisory Commission
11. Request for dispute resolution by Advisory Commission
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(1) Subject to this Regulation and paragraphs (4) and (5) of Regulation 20, an affected person may, by notice in writing, make a request to the Commissioners and to the competent authority of each relevant Member State for the setting up of an advisory commission (in these Regulations referred to as the “Advisory Commission”), for the purposes of Article 6 of the Directive, not more than 120 days from the date of receipt of the request, where -
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(1) Subject to this Regulation and paragraphs (4) and (5) of Regulation 20, an affected person may, by notice in writing, make a request to the Commissioners and, subject to Regulation 21, to the competent authority of each relevant Member State for the setting up of an Advisory Commission, for the purposes of Article 6 of the Directive, where -
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(a) the complaint submitted by the affected person has been rejected by the Commissioners under clause (i), (ii), (iii) or (iv), as the case may be, of Regulation 8(5)(c) or by a competent authority of a relevant Member State under Article 5(1) of the Directive, but not by all of the competent authorities concerned, or
(b) the Commissioners and the competent authority of each relevant Member State have accepted the complaint but have failed to reach a mutual agreement on how to resolve the question in dispute within the period specified in subparagraph (a) or (b), as the case may be, of Regulation 9(1).
(2) Where a complaint has been rejected by the Commissioners under clause (i), (ii), (iii) or (iv), as the case may be, of Regulation 8(5)(c) -
(a) in a case where the affected person makes an appeal referred to in Regulation 10(1), paragraph (1)(a) shall not apply where -
(i) a decision on the appeal has not yet been made,
(ii) the Appeal Commissioners have decided to uphold the decision of the Commissioners to reject the complaint and that decision has been appealed and a decision on that further appeal has not yet been made, or
(iii) the Appeal Commissioners have decided to uphold the decision of the Commissioners to reject the complaint and, within the time for bringing an appeal against the decision of the Appeal Commissioners, no such appeal has been brought or, if such an appeal has been brought, the court has delivered its final judgment, decree or order in relation to the appeal upholding the decision of the Commissioners to reject the complaint, or the appeal has been otherwise discontinued or disposed of,
and
(b) in a case where the affected person has not made an appeal referred to in Regulation 10(1), paragraph (1)(a) shall only apply where the affected person has renounced any right of appeal under Regulation 10(1) and a declaration to that effect has been made by the affected person in writing to the Commissioners.
(3) A request by an affected person under paragraph (1) shall be made -
(a) not later than 50 days from the date on which notice has been given to the affected person under Regulation 8(5)(b) or 9(4), as the case may be, or
(b) where the affected person makes an appeal referred to in Regulation 10(1) against the rejection of a complaint by the Commissioners under clause (i), (ii), (iii) or (iv), as the case may be, of Regulation 8(5)(c), not later than 50 days from the later of the following dates:
(i) the date on which a decision on the appeal is made, or
(ii) where a decision on the appeal has been made and the affected person has appealed that decision (“the further appeal”), the date on which a decision is made on the further appeal.
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(4) Where the Advisory Commission -
(a) notifies the Commissioners under paragraph (2) of Article 6 of the Directive of its adoption of a decision under that paragraph to accept a complaint, and
(b) confirms that all of the requirements under Article 3 of the Directive have been satisfied,
the following provisions apply:
(i) the Commissioners may request the competent authority of each relevant Member State to endeavour to resolve the question in dispute in accordance with Article 4 of the Directive and, where the Commissioners so request, the Commissioners shall give notice in writing to the Advisory Commission and the affected person of that request;
(ii) where clause (i) applies, the period referred to in Regulation 9(1)(a) shall commence on the date on which the Commissioners are notified of the adoption by the Advisory Commission of its decision to accept the complaint.
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(4) Where the Commissioners receive a request under paragraph (1)(a) or (b), as the case may be, they shall endeavour to set up an Advisory Commission not later than 120 days from the date of receipt by them of the request and the chair of the Advisory Commission shall, as soon as practicable, inform the affected person that it is set up.
(5) The Advisory Commission shall be composed
of -
(a) one chair,
(b) one representative of the Commissioners and one representative of the competent authority of each relevant Member State or, if the Commissioners and each such other competent authority agree, 2 representatives of each of them, and
(c) one independent person of standing, appointed by the Commissioners from the list and one independent person of standing appointed by the competent authority of each relevant Member State from the list or, if the Commissioners and each such other competent authority agree, 2 independent persons of standing appointed by each of them from the list.
(6) An Advisory Commission set up pursuant to a request under paragraph (1)(a) shall -
(a) adopt a decision on the acceptance of the complaint not later than 6 months from the date on which it is set up, and
(b) notify the Commissioners and the competent authority of each relevant Member State of its decision not later than 30 days from the date of the decision referred to in subparagraph (a).
(7) Where -
(a) the Advisory Commission -
(i) adopts a decision to accept a complaint, and
(ii) has confirmed that the requirements of Article 3 of the Directive have been satisfied,
and
(b) a request to initiate a mutual agreement procedure has been made by the Commissioners or the competent authority of a relevant Member State, as the case may be, to resolve the question in dispute,
the Commissioners shall endeavour to resolve the question in dispute by the mutual agreement procedure in accordance with Regulation 9, and the period referred to in Regulation 9(1)(a) shall commence on the date on which the Commissioners are notified of the adoption by the Advisory Commission of its decision to accept the complaint.
(8) Where the Commissioners make a request referred to in paragraph (7)(b), they shall notify, in writing, the Advisory Commission, the competent authority of each relevant Member State and the affected person of the request.
(9) Where a request referred to in paragraph (7)(b) is not made within the period of 60 days from the date of the notification of the decision of the Advisory Commission to accept the complaint, the Advisory Commission shall deliver an opinion under Article 14(1) of the Directive, in writing, on the resolution of the question in dispute not later than 6 months from the date of expiry of that period of 60 days.
(10) An Advisory Commission set up pursuant to a request under paragraph (1)(b) shall deliver its opinion under Article 14(1) of the Directive, in writing, on the resolution of the question in dispute to the Commissioners and the competent authority of each relevant Member State not later than 6 months from the date on which it is set up.
(11)(a) Where the Advisory Commission considers that the question in dispute is such that it would need more than the period of 6 months specified in paragraph (9) or (10), as the case may be, to deliver an opinion, that period may be extended by 3 months.
(b) The Advisory Commission shall give notice in writing to the Commissioners, the competent authority of each relevant Member State and the affected person of any extension under subparagraph (a) of the period within which the Advisory Commission shall deliver an opinion.
(12) The Advisory Commission shall base its opinion on the resolution of the question in dispute on -
(a) the arrangement, the Act of 1997, these Regulations and any other enactment related to the question in dispute, and
(b) the law of each relevant Member State in so far as it relates to the question in dispute.
(13)(a) The Advisory Commission shall adopt its opinion on the resolution of the question in dispute by a simple majority of its members.
(b) Where a majority opinion of its members cannot be reached, the vote of the chair of the Advisory Commission shall determine the final opinion.
(c) The chair of the Advisory Commission shall notify in writing the Commissioners and the competent authority of each relevant Member State of the opinion.
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