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For cases where it is necessary or appropriate to prevent the evasion of any provision of Regulation (EU) No 648 / 2012 ESMA sets certain parameters to judge the potential evasion. Those parameters are very comprehensible and detailed. However, it is not entirely clear how those parameters will be applied in practice. Additionally according to SMSG, any proposed new criteria should not place European Union in a non-competitiveness position vis-à-vis other countries or regulators.
SMSG pointed out that in certain cases, the given terminology is not quite clear. There seems to be some inconsistencies such as "primary purpose" and "essential purpose" which are used al ternatively, although they are not equivalent.
SMSG found the parameters in Article 3, although very comprehensible and detailed, lack somehow to a certain extend the details on how those parameters will be applied in practice. In addition, the SMSG opines it would beneficial to clarify the meaning of " abuse of the application of any provision " Article 3 (2) (b) in context and if this is related to tax.