European Securities and Markets Authority (ESMA) recommends European Commission to allow national financial markets supervisory bodies to exchange information with tax authorities to combat fraudulent withholding tax schemes. On 24 September, 2020, ESMA published the outcomes of its review of the EU’s Market Abuse Regulation (MAR). While this review touches a wide variety of topics, it also addresses dividend arbitrage schemes in section 10.2. In this section, ESMA then explains multiple reasons why a legislative change to the MAR itself is not the best way to combat fraudulent dividend arbitrage schemes. However, as it is currently not allowed under MAR, MiFID II and MiFIR for national financial markets supervisory bodies (“National Competent Authorities” or “NCA’s”) to exchange information with tax authorities, ESMA recommends the European Commission to:
· remove legal limitations for NCA’s to exchange information obtained from NCA’s in other Member States with tax authorities, as well as to
· provide a common legal basis for exchange of information directly received by an NCA within its national supervisory activity.
ESMA believes this may not prevent but will contribute to the detection and prosecutions of fraudulent withholding tax schemes.