Tag: IDLAW

The abolition of the UK’s non-dom regime – Should UK non-doms consider relocation to Cyprus?

Posted on | by Paschalis Paschali

The abolition of the UK non-domiciled (or non-dom) status in the last UK budget marks the end of an era for the UK’s tax system. It might also be a game-changer in global mobility as many UK resident non-domiciled individuals might seek to relocate to other jurisdictions in order to shield their overseas earnings from taxation. One such jurisdiction could be Cyprus.

What are the UK’s non-dom rules?

Broadly, non-doms are individuals who are resident in the UK, but who claim that their domicile, being the centre of their personal and financial interests, is outside of the UK. Crucially, hitherto, a non-domiciled individual who was UK tax resident was broadly taxed on income and gains on a remittance basis only by contrast to a UK tax resident and domiciled individual who was taxed on income and gains on a worldwide basis, irrespective of remittance. The UK rules changed a few years ago whereby the non-dom status became time limited and, in fact, after a number of years, a hefty remittance basis charge was levied in order to benefit from the exemption. Nevertheless, it still remained an attractive (optional) regime for high net worth individuals with foreign earnings.

Following last week’s UK budget, the non-dom regime will be abolished from 6 April 2025. In its place, the UK government has introduced a new residence-based regime taking effect from April 2025. What is crucial to note is that the new foreign income and gains regime will be relevant only as far as new tax residents are concerned. This is because under the new regime, individuals who have been non-UK tax resident for at least 10 consecutive years will, regardless of domicile status, be eligible to use the new regime for four years.

Very importantly, under the new regime, non-UK income and gains will not be taxable in the UK and can be brought (i.e. remitted) to the UK without UK taxation during an individual’s four-year eligibility period. From the fifth year of UK tax residence onwards, an individual will be chargeable to UK income tax and capital gains tax on worldwide basis.

It would appear that the new regime will apply to all individuals becoming tax resident in the UK after not being tax resident for 10 consecutive years, irrespective of whether they are UK domiciled. As such, this new regime is likely to be very attractive to (UK) expats who decide to return to the UK.

Although Cyprus has many UK expats, as explained in this newsletter, Cyprus also has a very attractive non-dom regime. Therefore, it is unlikely that UK expats living in Cyprus would relocate to the UK just to benefit from the new regime, as many of the benefits of this regime are essentially replicated in Cyprus’ non-dom regime and for 17 years as opposed to the four years provided for by the UK non-dom regime.

What is likely to happen now is a competition between countries with preferential regimes for high net worth individuals to attract UK non-doms who will no longer benefit from the UK tax regime.

Cyprus is such a jurisdiction with an attractive system overall, combined with special privileges to non-domiciled tax residents.

The concept of domicile in Cyprus law originates from the Wills and Succession Law (Cap 195), which is based on English law. This law provides that every person has a domicile of origin or a domicile of choice. An individual’s domicile of origin is that of his/her father’s domicile (at birth). A person acquires a domicile of choice by establishing his home at any place with the intention of permanent or indefinite residence therein. The domicile of origin prevails and is retained until a domicile of choice is in fact acquired. Under the Special Contribution for Defence Law, a non-domiciled individual may be deemed as domiciled in Cyprus if he/she has been a Cypriot tax resident for at least 17 out of the last 20 years prior to the relevant tax year. This means that Cyprus’ non-dom privileges are available for 17 years.

But what are these non-dom privileges?

The combined application of Cyprus’ tax laws (i.e the Income Tax Law and the Special Contribution for Defence Law) allows Cyprus tax resident individuals who are not domiciled in Cyprus to be exempt on their worldwide dividends and interest, whether remitted to Cyprus or not. It is noteworthy that the exemption applies even if the dividends and interest have a domestic source (i.e. they are derived from Cyprus). There is also an exemption from the special defense contribution tax for rental income (but income tax is payable).

In addition to these privileges, the Cyprus tax system has other advantageous features for tax residents in general, whether domiciled or not.

For example, under Cyprus’ Capital Gains Tax Law, capital gains tax is only imposed on the sale of immovable property situated in Cyprus, and for the sale of shares in companies in which the underlying asset is immovable property situated in Cyprus. There is no capital gains tax in Cyprus for any other disposals. This means that the disposal of any other securities (shares, bonds, tradable contracts etc.) are not subject to tax in Cyprus.

Τhere is also a special tax regime for foreign pension income, which is exempt from tax up to €3,420 per year and taxed at only 5% above that threshold.

Furthermore, Cyprus does not have any inheritance tax or gift tax. Again, these rules are applicable to all Cyprus tax residents – whether domiciled or not.

It should be pointed out that dividends and interest received and pensions are subject to 2.65% General Healthcare System Contributions (GESY). However, this is capped so that for every natural person, the total maximum annual amount on which contributions will be paid is €180,000. This means that the maximum annual amount of GESY contribution levied is €4,770.

Another important tax exemption available to all Cyprus tax residents (whether domiciled or not) is the exemption on income from services rendered outside of Cyprus for more than 90 days in a tax year. The services must be rendered to a non-Cypriot tax resident employer. This, combined with the 50% exemption rule for individuals taking up employment in Cyprus (subject to some other conditions) makes relocation to Cyprus a very attractive option for UK non-doms who wish to explore other jurisdictions.

Of course, in order to access these benefits, as a non-dom or not, it is a prerequisite to become tax resident in Cyprus. For an individual to become tax resident in Cyprus, he/she must be resident in Cyprus for 183 days in the relevant tax year and must not reside more than 183 days per year in another jurisdiction. There is also a quicker route to becoming tax resident in Cyprus under the 60-day rule. Under this rule, an individual must spend at least 60 days in Cyprus in the relevant tax year and must not spend more than 183 days in another jurisdiction. The individual must also maintain a permanent home in Cyprus (owned or rented) and must carry on a business in Cyprus or be employed in Cyprus or hold an office with a tax resident of Cyprus during the relevant tax year.

On the basis of the 60-day rule, it is relatively easy to establish tax residence in Cyprus and obtain the non-dom status, if the aim is to access the specific privileges attached to this status.

Whether or not the abolition of the UK’s non-dom regime will lead to an exodus of high net worth individuals from the UK remains to be seen.

It is worth pointing out however that even before the changes to the UK non-dom regime were abolished Cyprus has for a long time now offered an advantageous tax regime for individuals wishing to take the relatively simple steps required to relocate their residence/domicile to Cyprus.

For information on any of the issues raised in this newsletter, please get in touch with us and note that working closely with our associated corporate services provider Nobel Trust we are able provide the full range of advice and services for anybody wishing to be advised as to the benefits of considering Cyprus as a replacement for UK non-dom status.

The regulation of the content of B2C contracts under Cypriot contract law

Posted on | by Paschalis Paschali

Effective consumer protection is an area still in the earliest stages of its development in the Cypriot legal system. Prior to the adoption of Directive 93/13 which provided a substantive test of unfairness and which regulated the content of business contracts through ensuring that unfair terms not be considered binding to consumers, the Cypriot legal system did not provide for a level of consumer protection through statutory or case law. In essence, no measures existed aimed at protecting consumers against contract terms that had not been individually negotiated by consumers in advance and which in turn could grant a considerable advantage to businesses.


Such terms often come in the form of exclusion clauses which can exclude or restrict liability, make the liability or its enforcement subject to restrictive conditions, or exclude or restrict a person from pursuing a right or remedy. As the characteristic of an unfair term is one which increases the number or the difficulty of a party’s obligations, even a force majeure clause may come to be considered unfair if intentionally worded vaguely. If a seller can unilaterally determine a force majeure clause for example, then what is to prevent them from defining a reasonably foreseeable phenomenon as grounds for the removal of liability? Where standard form contracts were established to facilitate commercial transactions and better define the rights and obligations of the two parties, a unilateral approach to the definition of these terms by sellers would necessarily come at the cost of the consumer, who was faced with either accepting these terms or be deprived of the sought goods or services.


Prior to Directive 93/13, Cypriot consumers only had recourse to general principles of contract law and primarily procedural safeguards provided by the Contract Law, Cap. 149 i.e. the key law governing contracts in Cyprus. However and while generally sufficient, Cap. 149 was inadequate in providing the necessary tools in dealing with unfair contract terms, making the implementation of Directive 93/13 necessary for enhanced consumer protection.

Procedural Safeguards of Cap. 149


It could be argued that, in relation to regulating the use of unfair terms, the common law of contract is less concerned with the substance of the contract and more so with the procedure leading to its conclusion. If no illegality is found in what preceded the conclusion of the contract, which could in any way impact the will of the parties to be bound in contract, common law courts would hesitate in intervening since the determination of the substance of the contract remains, based on the principle of privity of contract, within the exclusive competence and autonomy of the parties.


As such, section 13 of Cap. 149, with its emphasis on the concurrence of wills, established that consent is considered a central concept of contract conclusion. If consent is considered to be given “freely”, then the contract is to be respected. With the intention to ensure this, section 14 of Cap. 149 codified a number of principles in order to safeguard that the parties’ consent is “free”, which include provisions on coercion, undue influence, fraud, misrepresentation and mistake.


Yet, beyond the rules established in section 14 emphasizing procedural fairness, Cap. 149 did not provide the necessary tools for examining the substantive unfairness of contract terms. Contrarily, while the Indian Contract Act introduced similar procedural rules, Indian courts also made use of the public policy exception under their section 23 (identical to section 23 of Cap. 149) to strike down contracts whose terms were labelled as contrary to public policy, thereby invoking the illegality of the contract’s object or consideration.


In conclusion, Cypriot law follows the general position of English contract law, where the latter has long taken the view that acceptance of the principles of freedom of contract, the binding force of contracts and the lack of a general principle of good faith and fair dealing precludes the review of the fairness of either the contract as whole or of its particular terms. This can most notably be seen in the instance of contract formation. While a promise could not be considered valid without the corresponding consideration, the acknowledgment of an inadequate or nominal consideration signifies that a substantive inequality of bargaining power is not seen as a ground for a vitiation of a contract.


As regards the fairness of particular contract terms, the common law approach can be illustrated most explicitly in its acceptance of the validity of exemption clauses. That is, when once agreed between the parties, knowingly or otherwise, these clauses can effectively exclude liability both in contract and in tort, severely impacting the balance of rights and obligations between the parties. However, beyond a favorable interpretation of the contract in favor of the weaker party in instances of inequality of bargaining power but also through the use of the contra preferentem principle in instances of ambiguity in interpretation of an exclusion clause, and save in instances of a fundamental breach of contract, the Cypriot contract law tools seemed inadequate in properly regulating the use of unfair terms.


Prior to the transposition of Directive 93/13, Cypriot courts had lacked the legal tools to confront the challenges that came with standard form contracts and in particular seemed unwilling to examine the parties’ initial allocation of risk, even if it was done unilaterally and in a standardized manner by one of the contracting parties. Instead of focusing on the pursuit of mutual assent, the courts were content with the finding of the external communication of intention by the parties through their signatures to the contract. Since both parties seemingly gave their consent to be bound by the contract, Cypriot courts appeared hesitant in interfering with its individual terms, beyond through the use of the above mentioned procedural safeguards in instances where the parties consent to be bound could be impacted. These legal circumstances are what justified the need for the implementation of Directive 93/13. It provided courts the ability to control unfair terms in consumer contracts, though the granting of discretionary power as to the interpretation of the substantive unfairness of contract terms through the control of their content. However, while there is still very limited Cypriot case law applying the Directive’s robust two-tiered unfairness test, it remains to be seen if future applications of this test by the Cypriot courts can promote effective consumer protection or if additional national legislation is required to this end.

–> Contact us here for any information on how we can assist you with the application of Directive 93/13 to your consumer contracts

Cyprus’ Path in the European Green Deal: Integrating the Just Transition Mechanism

Posted on | by Paschalis Paschali
the European Green Deal #EUGreenDeal

As the European Union (EU) embarks on a transformative journey towards a greener and more sustainable future through the European Green Deal (EGD), the question of ensuring that no one is left behind takes a central stage. This article aims to analyse the measures that the government of Cyprus is undertaking to achieve its 2030 and 2050 climate targets and to assess how the concept of social inclusion is endorsed along the way.

National Energy and Climate Plan (NECP)

Cyprus, like other EU nations, has embraced the ambitions of the EGD, aiming to tackle climate change and move towards sustainability. [1]  The NECP is a vital part of this, mandated by EU regulations from 2021 to 2030. Its main objective is to devise cost-effective policies to meet energy and climate goals, driving economic growth and addressing environmental challenges. [2] Approved by Cyprus’ Council of Ministers in January 2020, it outlines the energy sector’s current status, past policies, and future trajectory to achieve national goals by 2030. Its three key pillars focus on emission reductions, energy efficiency, and increasing renewable energy sources.

For emissions, Cyprus targets a 21% reduction in non-ETS sector emissions compared to 2005 levels. Strategies include promoting natural gas, boosting renewable energy, improving carbon sinks, enhancing energy efficiency across sectors, and reducing emissions in transport, agriculture, and waste. [3]

Regarding energy efficiency, Cyprus aims for a final energy consumption of 2.0 megatonne of oil equivalent (Mtoe) and a primary energy consumption of 2.4 Mtoe by 2030. The plan includes energy efficiency obligations for distributors, low-interest loans for efficiency projects, support programs for households and businesses, voluntary agreements with businesses, and various initiatives for efficient lighting, water, and transportation.

Lastly, Cyprus aims to increase the share of renewable energy sources (RES) in its energy consumption. Targets include RES constituting 23% of gross final energy consumption, 26% of gross final electricity consumption, 39% in heating and cooling, and 14% in transportation.

To achieve these targets, Cyprus has adopted a wide-ranging approach, including various support schemes for RES, incentives for electric vehicles, and integrating RES and energy efficiency into public buildings. Efforts also focus on enhancing RES utilisation in the transportation sector.

Solar water heater adoption rates are impressive, with over 90% of households and 50% of hotels utilising these systems. However, effective energy storage solutions are crucial to fully harness solar potential. [4] Initiatives like the experimental energy storage system in Nicosia and EU projects aim to develop policies for integrating energy storage effectively, boosting photovoltaic self-consumption in the Mediterranean.[5]

To address energy security, Cyprus is implementing Liquefied Natural Gas (LNG) imports through the “CyprusGas2EU” project, diversifying energy sources and reinforcing security. Support for projects like the “EuroAsia Interconnector” and “EastMed Pipeline” will further eliminate energy isolation. The EuroAsia Interconnector, connecting Cyprus’ electricity network to the EU continental network, will facilitate RES development, reduce CO2 emissions, and enhance Cyprus’ position in the regional energy sector. [6] This project will also pave the way for widespread adoption of solar energy and sustainable practices, promoting both environmental and economic sustainability. [7]

Future trajectory

Importantly, Cyprus has submitted an updated draft of its NECP to the European Commission for review and approval. This revision is prompted by institutional obligations, failure to meet existing targets, and changes in European energy and climate goals. The revised draft includes, inter alia, commitments to reduce GHG emissions by 32% by 2030 compared to 2005 levels, increase carbon dioxide removals from land use, achieve a 42.5% penetration of RES in gross final consumption by 2030, and contribute to the EU’s mandatory energy efficiency improvement target. [8]

Additionally, Cyprus aims to design policies to support low-emission growth, laying the groundwork for achieving zero emissions by 2050. The Long-Term Low GHG Development Strategy for 2050 aligns Cyprus with the European objective of transitioning to a climate-neutral economy by 2050, emphasising a commitment to a greener future.[9] This strategy complements the NECP and envisions a shift towards clean technologies, promoting innovation and new business models, mitigating climate change impacts, enhancing economic competitiveness, and addressing environmental challenges.

Nevertheless, transitioning to carbon neutrality and renewable energy adoption presents a series of social challenges that require proactive solutions. Therefore, as Cyprus embarks on its journey towards a greener future, the integration of the Just Transition Mechanism (JTM) takes a central role in ensuring that this transition is not only environmentally sound but also socially equitable.

Just Transition Mechanism

The JTM is a critical component of the EGD, acknowledging the socio-economic realities of member states.[10] It provides a framework for financial and policy support to facilitate the transition to cleaner and more sustainable economies while safeguarding livelihoods and communities.[11]Each member state’s unique circumstances further underscore the necessity of adaptable strategies to harmonise environmental and economic aspirations.[12]

In terms of Cyprus, it has recently received the approval for its Partnership Agreement and Just Transition Plan from the EU, entailing over €1 billion in funding from 2021 to 2027. This funding will support various initiatives aimed at promoting economic, social, and territorial cohesion, facilitating the green and digital transition, and fostering competitive, inclusive, and sustainable growth. [13]

One of the most important aspects of the Agreement is the ‘Thalia 2021-27’ Cohesion Policy operational program.[14] A multi-annual, multi-fund development initiative, the Thalia program outlines Cyprus’ strategic plan for utilising resources allocated through the Cohesion Policy Funds.[15]

Central to this initiative is the Just Transition Fund (JTF), which will support an array of vital interventions. The strategic goal is to reduce GHG emissions at the power station in Dekelia and of energy-intensive businesses in general.[16] Recognising the need for social inclusion, Cyprus plans to allocate a portion of the JTF budget to modernise labour market services and support vulnerable populations, women, and youth. Additionally, initiatives to address the shortage of qualified human resources through green education initiatives are emphasised. The program prioritises equal opportunities, non-exclusion, and non-discrimination, ensuring gender equality and compliance with fundamental rights.

In conclusion, Cyprus’ proactive approach aligns with the EGD, addressing climate change, promoting economic growth, and ensuring social inclusion. However, and despite the series of green measures and initiatives that are underway, the nation faces a substantial gap between its commitments and actual outcomes.[17] To improve results and make progress toward the 2030 and 2050 targets, the government of Cyprus must enhance its efficiency in the public sector and collaborate closely with the private sector to streamline not only the processes but also the procedures for implementing all its ambitious projects.

References and URLs:

[1] General Secretariat of European Affairs, ‘CY National Strategy for EU Affairs’ (November 2021)

[2] ‘National Energy and Climate Plans (NECPs)’ <https://energy.ec.europa.eu/topics/energy-strategy/national-energy-and-climate-plans-necps_en>

[3] ‘Cyprus’ Integrated National Energy and Climate Plan’ (January 2020)

[4] Theodoros Zachariadis, ‘Monitoring EU Energy Efficiency First Principle and Policy Implementation’ (Odyssee Mure, November 2021)

[5] ‘Invest Cyprus – CEO Interviews 2018’

[6] ‘Commission Participates in Launch of EuroAsia Electricity Interconnector’

[7] EuroAsia, ‘Significant Benefits for Cyprus from Construction of the EuroAsia Interconnector | EuroAsia Interconnector’ (26 July 2023)

[8] ‘PRELIMINARY DRAFT UPDATE CONSOLIDATED NATIONAL PLAN OF CYPRUS ON ENERGY AND CLIMATE OF CYPRUS 2023’ (27 July 2023)

[9] Department of Environment, Ministry of Agriculture, and Rural Development and Environment, ‘Cyprus’ Long-Term Low GHG Emission Development’ (September 2022)

[10] ‘The Just Transition Mechanism’

[11] Aliénor Cameron and others, ‘A Just Transition Fund – How the EU Budget Can Best Assist in the Necessary Transition from Fossil Fuels to Sustainable Energy’ [2020] Policy Department for Budgetary Affairs Directorate General for Internal Policies of the Union

[12] Sebastiano Sabato and Boris Fronteddu, ‘A Socially Just Transition through the European Green Deal?’ [2020] SSRN Electronic Journal

[13] ‘Partnership Agreement and Just Transition Plan for Cyprus’ (European Commission – European Commission)

[14] ‘ΘΑΛΕΙΑ 2021-2027- Θεμέλια Αλλαγής, Ευημερίας, Ισότητας Και Ανάπτυξης’ (2022)

[15] ‘Short Description – ΘΑλΕΙΑ 2021-2027’ (21 June 2022)

[16] Green Deal: Pioneering Proposals to Restore Europe’s Nature by 2050 and Halve Pesticide Use by 2030’

[17] European Commission, ‘2023 Country Report – Cyprus’, (2023), COM(2023) 613 final

The Sale of Land (Specific Performance) (Amending) Law of 2023 – Purchaser protection when the immovable property is encumbered by a pre-existing mortgage

Posted on | by Paschalis Paschali

This article is also available in Greek

On 12.12.2023, the Sale of Land (Specific Performance) (Amending) Law of 2023 (L. 132(I) of 2023) (hereinafter the “Amending Law of 2023”) was published in the Official Gazette of the Republic of Cyprus.

The Amending Law of 2023 is read together with the Sale of Land (Specific Performance) Laws of 2011 to 2020 (hereinafter the “Main Law”), with the Amending Law of 2023 and the Main Law being referred to together as the “Sale of Land (Specific Performance) Laws of 2011 to 2023”.

This article briefly analyses a completely new procedure implemented by the Amending Law of 2023, which aims to provide preemptive protection with regards to the rights and interests of purchasers of immovable property, in cases where the immovable property happens to be encumbered by a pre-existing mortgage.

Formalities Necessary for the Lodging of a Contract in Cases where the Immovable Property Happens to be Encumbered by a Pre-Existing Mortgage

A key change introduced by the Amending Law of 2023 relates to the requirements that must be met for the lodging of a contract with the District Lands Office (“DLO”), in cases where the contract concerns immovable property encumbered solely by a pre-existing mortgage or contract and the registered owner of such is not subject to any restriction/prohibition.

In addition to the already existing requirements that have to be met for the lodging of a contract with the DLO to be accepted, as these are set out in sub-paragraphs (a), (b) and (c) of subsection (1) of section 3 of the Main Law, the lodging of a contract, in cases where the circumstances described above apply, now necessitates the inclusion of specific written declarations.

The Amending Law of 2023 specifies that the lodging of the contract will be accepted only if it is accompanied by the written declaration of each mortgagee and seller, in relation to which the purchaser confirms knowledge (according to Form A of the Annex), or the written declaration of the purchaser (according to Form C of the Annex).

Form A of the Annex

By means of Form A, the mortgagee and the seller undertake in writing that, if 95% of the contract amount, including any advance payment already received by the seller, is deposited by the seller and/or purchaser into a specific bank account (deposit account) maintained in the name of the seller, then a relevant payment certificate will be issued to the Purchaser immediately (in accordance with Form B of the Annex).

Form A records a commitment on the part of the mortgagee in that, upon payment of the aforementioned amount and issuance of Form B, it shall release or alleviate the immovable property from the encumbering mortgage, but also that, in case of failure on its part to do so, the purchaser shall have the ability to submit Form B with the Department of Lands and Surveys, duly signed and stamped by the mortgagee. In such an instance, the Director (Department of Lands and Surveys) shall proceed to transfer the immovable property into the name of the purchaser.

The purchaser, by signing Form A, certifies that they have received knowledge of the above commitments.

Furthermore, with relevant additions to Sections 5, 6 and 7 of the Main Law, the Amending Law of 2023 explains the practical implementation of the procedure arising from Form A, the consequences that the mortgagee will face in case of non-compliance with its commitment and how the Director (Department of Lands and Surveys) can proceed to transfer the immovable property into the name of the purchaser upon being presented with a duly completed, signed and stamped Form B.

The introduction of Form A and the related procedure seeks to bring about the preemptive protection and safeguarding of interests. These new introductions act as a safeguard for the benefit of all parties involved and especially the purchaser, setting out precisely the actions that must be carried out by the seller and/or the purchaser for the mortgagee to comply with its simultaneously granted commitment to alleviate the property from the encumbering mortgage, as well as the procedures/consequences that may be implemented in case that the mortgagee fails to honour its commitment.

The procedure arising from Forms A and B ensures that the mortgaged property will be transferred freely to the purchaser, once the purchaser has fulfilled its contractual obligations towards the seller.

Form C of the Annex

Alternatively, the Amending Law of 2023 allows the lodging of a contract by including Form C, through which the purchaser essentially acknowledges the existence of an encumbering mortgage affecting the immovable property and assures that it wishes to proceed with the lodging of the contract without it being accompanied by Form A of the Annex.

Form C does not seek to safeguard purchaser rights to the same extent as Form A. In fact, Form C circumvents the whole procedure set out by Form A.

However, it cannot be overlooked that Form C also contributes to the advance safeguarding of purchaser interests by enabling a purchaser to become aware of the existence of an encumbering mortgage affecting the property in question, but also to confirm its willingness to proceed with the lodging of a contract without the use of Form A.

The introduction of Forms A, B and C of the Annex is undoubtedly a positive development, since it implements a new practice that seeks to safeguard the procedures related to purchasing and transferring of immovable property. In order to solve a serious problem that has arisen in recent years, Forms A, B and C aim to better inform and safeguard in advance the interests of a purchaser, who, despite having fulfilled its obligations towards a seller, ends up dealing with a seller who is unable to transfer the immovable property due to the existence of a mortgage.

Greater awareness of the parties involved and completion of real estate transactions without complications contribute to the strengthening of the real estate market, whilst at the same time inspire more confidence on the part of purchasers in relation to the legislative framework that governs the whole process in cases where the property for sale is encumbered by a mortgage.

Apart from the positive elements deriving from the introduction of Forms A, B and C of the Annex, we consider it appropriate to conclude with the following comments, which potentially reveal a need or improvement of the phrasing contained in the aforementioned Forms and clarification of the new procedure implemented by the Amending Law of 2023:

(i) The additional formalities introduced by the Amending Law of 2023 are not exclusive to cases where the property is only encumbered by a pre-existing mortgage. In fact, the Amending Law of 2023 expressly states that the additional formalities also apply to cases where the property is only encumbered by a pre-existing contract. Nonetheless, this does not seem to be reflected by the phrasing contained in Forms A, B and C, which deals exclusively with the case of a pre-existing mortgage, without containing any reference whatsoever in relation to a pre-existing contract.

(ii) Forms A, B and C refer only to seller and purchaser. This implies that these Forms apply only in cases involving the sale and purchase of immovable property. However, such an approach is incompatible with Article 2 of the Main Law and specifically with the definition of the term “contract”, which includes various types of contracts such as assignment, distribution, and exchange contracts.

(iii) Forms A, B and C require for the description of the purchased unit that has been erected and/or will be erected on the property to be recorded. Such phrasing does not seem to be consistent with cases where the contract does not relate to the purchasing of a unit but instead concerns the purchasing of a field or plot.

(iv) The mortgagee’s commitment provided through Forms A and B is conditional on the payment of 95% of the contract value to a predetermined deposit account. This means, however, that the mortgagee is not obliged to extinguish the mortgage, despite the whole value of the mortgage having been deposited, unless 95% of the contract value is first deposited in that account, an amount which may exceed the total value of the mortgage.

(v) Forms A, B and C refer to cases where the immovable property forming the object of the contract is affected by a pre-existing mortgage. Nevertheless, this wording is not consistent with cases where the object of a contract is only part of an immovable property, which part has no connection whatsoever with a pre-existing mortgage that happens to exist in relation to another part of the immovable property which is not for sale and belongs to another co-owner.

The issues raised through the above commentary are expected to be clarified and addressed over time. The Amending Law of 2023 is very recent and, therefore, the practical implementation and application of the procedure arising from Forms A, B and C cannot yet be properly evaluated.

According to information we have received from the Department of Lands and Surveys, it is expected that the officers of the District Land Registry Offices will be continuously provided with guidance and informative circulars, so as to be in a better position to provide information to the public with regards to the new procedures introduced through Forms A, B and C and their proper implementation, aiming to achieve the objectives of the Amending Law of 2023.

Also available in GREEK here

Ο περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) (Τροποποιητικός) Νόμος του 2023 – Προστασία αγοραστών σε περίπτωση ήδη κατατεθειμένης υποθήκης

Posted on | by Paschalis Paschali

This article is also available in English

Στις 12.12.2023 δημοσιεύτηκε στην Επίσημη Εφημερίδα της Κυπριακής Δημοκρατίας ο περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) (Τροποποιητικός) Νόμος του 2023 (Αριθμός 132(Ι) του 2023) (στο εξής ο «Τροποποιητικός Νόμος του 2023»).

Ο Τροποιητικός Νόμος του 2023 διαβάζεται μαζί με τους περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) Νόμους του 2011 έως 2020 (στο εξής ο «Βασικός Νόμος»), με τον Τροποποιητικό Νόμο του 2023 και τον Βασικό Νόμο να αναφέρονται μαζί ως οι περί Πώλησης Ακινήτων (Ειδική Εκτέλεση) Νόμοι του 2011 έως 2023.

Το παρόν άρθρο αναλύει συνοπτικά μια εντελώς καινούρια διαδικασία που θέτει σε εφαρμογή ο Τροποποιητικός Νόμος του 2023, η οποία αποσκοπεί στην εκ των προτέρων καλύτερη διασφάλιση των συμφερόντων και δικαιωμάτων των αγοραστών ακινήτων, σε περιπτώσεις όπου το προς πώληση ακίνητο επιβαρύνεται από ήδη κατατεθειμένη υποθήκη.

Διατυπώσεις αναγκαίες για την κατάθεση σύμβασης στην περίπτωση που ακίνητη ιδιοκτησία βαρύνεται ήδη με κατατεθειμένη υποθήκη ή σύμβαση:

Μια βασική αλλαγή που εισάγει ο Τροποιητικός Νόμος του 2023 αφορά τις προϋποθέσεις που πρέπει να πληρούνται για σκοπούς κατάθεσης σύμβασης, στην περίπτωση που αυτή αφορά ακίνητη ιδιοκτησία η οποία βαρύνεται μόνο με ήδη κατατεθειμένη υποθήκη ή σύμβαση και ο εγγεγραμμένος ιδιοκτήτης αυτής δεν τελεί υπό απαγόρευση.

Πέραν από τις ήδη γνωστές αναγκαίες διατυπώσεις για την κατάθεση σύμβασης, ως αυτές καταγράφονται επί των παραγράφων (α), (β) και (γ) του εδαφίου (1) του άρθρου 3 του Βασικού Νόμου, η κατάθεση σύμβασης, σε περίπτωση που ισχύουν οι περιστάσεις που περιγράφονται πιο πάνω, πλέον προαπαιτεί την συμπερίληψη συγκεκριμένων έγγραφων δηλώσεων.

Ο Τροποιητικός Νόμος του 2023 διευκρινίζει ότι η κατάθεση της σύμβασης θα γίνει αποδεκτή μόνο εάν αυτή συνοδεύεται από τις έγγραφες δηλώσεις εκάστου ενυπόθηκου δανειστή και πωλητή για την οποία ο αγοραστής ενυπογράφως έλαβε γνώση (κατά τον Τύπο Α του Παραρτήματος) ή του αγοραστή (κατά τον Τύπο Γ του Παραρτήματος).

Τύπος Α του Παραρτήματος:

Διά του Τύπου Α, ο ενυπόθηκος δανειστής και ο πωλητής δεσμεύονται εγγράφως ότι, εφόσον το ενενήντα πέντε τοις εκατό (95%) του ποσού της σύμβασης, περιλαμβανομένης τυχόν προκαταβολής η οποία λήφθηκε ήδη από τον πωλητή, κατατεθεί από τον πωλητή και/ή τον αγοραστή σε συγκεκριμένο τραπεζικό λογαριασμό (καταθετικό λογαριασμό) που τηρείται στο όνομα του πωλητή, τότε θα εκδοθεί άμεσα προς τον αγοραστή σχετική βεβαίωση πληρωμής (κατά τον Τύπο Β του Παραρτήματος).
Ο Τύπος Α καταγράφει δέσμευση από μέρους του ενυπόθηκου δανειστή ως προς το ότι, με την καταβολή του προαναφερόμενου ποσού και την έκδοση του Τύπου Β, θα απαλλάξει ή εξαλείψει το ακίνητο από την επιβαρυντική υποθήκη, αλλά και ότι σε περίπτωση παράλειψης από μέρους του να το πράξει τούτο, τότε ο αγοραστής έχει την δυνατότητα να προσκομίσει στο Τμήμα Κτηματολογίου και Χωρομετρίας τον Τύπο Β, δεόντως υπογραμμένο και σφραγισμένο από τον ενυπόθηκο δανειστή, με τον Διευθυντή του Τμήματος Κτηματολογίου και Χωρομετρίας να μεταβιβάζει το ακίνητο επ’ ονόματι του αγοραστή.

Ο δε αγοραστής, με την υπογραφή του Τύπου Α, βεβαιώνει ότι έχει λάβει γνώση των πιο πάνω δεσμεύσεων.

Περαιτέρω, με σχετικές προσθήκες επί των άρθρων 5, 6 και 7 του Βασικού Νόμου, ο Τροποιητικός Νόμος του 2023 καταγράφει την πρακτική εφαρμογή της διαδικασίας που απορρέει από τον Τύπο Α, τις συνέπειες που θα υποστεί ο ενυπόθηκος δανειστής σε περίπτωση μη συμμόρφωσης με την δέσμευση του, καθώς επίσης και την εξουσία που αποδίδεται στον Διευθυντή του Τμήματος Κτηματολογίου και Χωρομετρίας για να προχωρήσει στη μεταβίβαση του ακινήτου επ’ ονόματι του αγοραστή κατά την προσκόμιση δεόντως συμπληρωμένου, υπογεγραμμένου και σφραγισμένου Τύπου Β.

Η εισαγωγή του Τύπου Α και της σχετικής προς τούτο διαδικασίας επιδιώκει να επιφέρει την εκ των προτέρων διασφάλιση και προστασία συμφερόντων. Τα όσα έχουν εισαχθεί λειτουργούν ως ασφαλιστική δικλείδα προς όφελος όλων των εμπλεκόμενων μερών και κυρίως του αγοραστή, καταγράφοντας ακριβώς τις ενέργειες που απαιτούνται από πλευράς πωλητή και/ή αγοραστή για σκοπούς τήρησης της παράλληλης δέσμευσης του ενυπόθηκου δανειστή για εξάλειψη της επιβαρυντικής υποθήκης, καθώς και τις διαδικασίες/συνέπειες που μπορούν να τύχουν εφαρμογής σε περίπτωση παράλειψης του ενυπόθηκου δανειστή να τηρήσει την δέσμευση του.

Η πρακτική που απορρέει από τους Τύπους Α και Β διασφαλίζει ότι η ελεύθερη μεταβίβαση υποθηκευμένου ακινήτου σε αγοραστή θα εκτελείται μόλις αυτός εκπληρώσει τις συμβατικές του υποχρεώσεις έναντι του πωλητή.

Τύπος Γ του Παραρτήματος:

Εναλλακτικά, ο Τροποποιητικός Νόμος του 2023 επιτρέπει την κατάθεση σύμβασης διά της συμπερίληψης του Τύπου Γ, μέσω του οποίου ο Αγοραστής ουσιαστικά αναγνωρίζει την ύπαρξη επιβαρυντικής υποθήκης που επηρεάζει το προς πώληση ακίνητο και διαβεβαιώνει ότι επιθυμεί να προχωρήσει στην κατάθεση της σύμβασης χωρίς αυτή να συνοδεύεται από τον Τύπο Α του Παραρτήματος.

Ο Τύπος Γ δεν επιδιώκει να διασφαλίσει τα δικαιώματα του αγοραστή στον ίδιο βαθμό που επιδιώκει ο Τύπος Α. Κατ’ ακρίβεια, ο Τύπος Γ παρακάμπτει την όλη διαδικασία και πρακτική που απορρέει από τον Τύπο Α.

Παρά ταύτα, δεν μπορεί να παραγνωριστεί ότι ο Τύπος Γ επίσης συνεισφέρει προς την εκ των προτέρων διαφύλαξη των συμφερόντων του αγοραστή, παρέχοντας την δυνατότητα σε αυτόν να λάβει έγκαιρα γνώση για την ύπαρξη επιβαρυντικής υποθήκης που επηρεάζει το προς πώληση ακίνητο, αλλά και να επιβεβαιώσει ότι είναι πρόθυμος να προχωρήσει στην κατάθεση σύμβασης χωρίς τη χρήση του Τύπου Α.

Η εισαγωγή των Τύπων Α, Β και Γ του Παραρτήματος αναμφίβολα συνιστά θετική εξέλιξη αφού θέτει σε εφαρμογή μια καινούργια πρακτική που επιδιώκει να διασφαλίσει τη διαδικασία αγοράς και μεταβίβασης ακίνητης ιδιοκτησίας. Με στόχο την επίλυση ενός σοβαρού προβλήματος που παρουσιάζεται τα τελευταία χρόνια, οι Τύποι Α, Β και Γ στοχεύουν στην εκ των προτέρων καλύτερη ενημέρωση και διασφάλιση των συμφερόντων του αγοραστή, ο οποίος, ενώ έχει εκπληρώσει πλήρως τις συμβατικές τους υποχρεώσεις έναντι του πωλητή, έχει απέναντι του ένα πωλητή ο οποίος αδυνατεί να μεταβιβάσει λόγω της ύπαρξης εμπράγματου βάρους.

Η καλύτερη ενημέρωση των εμπλεκόμενων μερών και η χωρίς περιπλοκές ολοκλήρωση κτηματικών συναλλαγών προσφέρει στην ενδυνάμωση της αγοράς ακινήτων, ενώ παράλληλα εμπνέει περισσότερη εμπιστοσύνη σε σχέση με το νομοθετικό πλαίσιο που διέπει την όλη διαδικασία σε περιπτώσεις που το προς πώληση ακίνητο επιβαρύνεται με υποθήκη.

Πέραν, όμως, από τα θετικά στοιχεία που απορρέουν από την εισαγωγή των Τύπων Α, Β και Γ του Παραρτήματος, κρίνουμε σκόπιμο όπως παραθέσουμε τα ακόλουθα σχόλια, τα οποία ίσως να αποκαλύπτουν την ανάγκη για καλύτερη διατύπωση των προαναφερθέντων Τύπων και διευκρίνηση της όλης αυτής νέας διαδικασίας που θέτει σε εφαρμογή ο Τροποιητικός Νόμος του 2023:

(i) Οι πρόσθετες διατυπώσεις που εισάγονται διά του Τροποποιητικού Νόμου του 2023 δεν αφορούν αποκλειστικά τις περιπτώσεις που το ακίνητο βαρύνεται μόνο με ήδη κατατεθειμένη υποθήκη. Κατ’ ακρίβεια, ο Τροποποιητικός Νόμος του 2023 προνοεί ρητά ότι οι εν λόγω πρόσθετες διατυπώσεις αφορούν επίσης περιπτώσεις που το ακίνητο βαρύνεται μόνο και με ήδη κατατεθειμένη σύμβαση. Αυτό, όμως, δεν φαίνεται να αντικατοπτρίζεται από το λεκτικό των Τύπων Α, Β και Γ, οι οποίοι ασχολούνται αποκλειστικά με την περίπτωση ήδη κατατεθειμένης υποθήκης, χωρίς να περιέχουν οποιαδήποτε απολύτως αναφορά σε σχέση με ήδη κατατεθειμένη σύμβαση.

(ii) Οι Τύποι Α, Β και Γ αναφέρονται μόνο σε πωλητή και αγοραστή. Αυτό συνεπάγεται ότι οι συγκεκριμένοι Τύποι τυγχάνουν εφαρμογής μόνο σε περιπτώσεις που αφορούν αγοραπωλησία ακίνητης ιδιοκτησίας. Τέτοια προσέγγιση, όμως, δεν συνάδει με το άρθρο 2 του Βασικού Νόμου και συγκεκριμένα την ερμηνεία του όρου «σύμβαση» η οποία συμπεριλαμβάνει διαφόρων ειδών συμβάσεις, όπως για παράδειγμα συμβάσεις εκχώρησης, διανομής και ανταλλαγής.

(iii) Οι Τύποι Α, Β και Γ ζητούν να καταγραφεί η περιγραφή της αγορασθείσας μονάδας που ανεγέρθηκε και/ή θα ανεγερθεί επί του Ακινήτου. Η διατύπωση των εν λόγω Τύπων δεν φαίνεται να συνάδει με περιπτώσεις που η σύμβαση δεν αφορά την αγορά κάποιας μονάδας, αλλά την αγορά ενός χωραφιού ή οικοπέδου.

(iv) H δέσμευση του ενυπόθηκου δανειστή που παρέχεται διά των Τύπων Α και Β παρέχεται υπό την αίρεση καταβολής 95% της αξίας του συμβολαίου σε προκαθορισμένο καταθετικό λογαριασμό. Αυτό, όμως, σημαίνει ότι ο ενυπόθηκος δανειστής δεν υποχρεούται να εξαλείψει την υποθήκη, έστω και αν ολόκληρη η αξία αυτής έχει κατατεθεί στον ενδεδειγμένο καταθετικό λογαριασμό, εκτός και αν πρώτα κατατεθεί το 95% της αξίας του συμβολαίου στον εν λόγω λογαριασμό, ποσό το οποίο μπορεί και να υπερβαίνει την όλη αξία της υποθήκης.

(v) Οι Τύποι Α, Β και Γ αφορούν περιπτώσεις που η ακίνητη ιδιοκτησία, η οποία αποτελεί αντικείμενο της σύμβασης, επηρεάζεται από ήδη κατατεθειμένη υποθήκη. Τέτοια διατύπωση, όμως, δεν συνάδει με περιπτώσεις που το αντικείμενο προς πώληση είναι τμήμα ακινήτου, το οποίο τμήμα δεν σχετίζεται με ήδη υπάρχουσα υποθήκη η οποία αφορά άλλο συνιδιοκτήτη και συγκεκριμένα άλλο τμήμα του ακινήτου που δεν αποτελεί αντικείμενο της πώλησης.

Τα ζητήματα που εγείρονται διά των πιο πάνω σχολιασμών αναμένεται ότι θα διευκρινιστούν και θα τύχουν αντιμετώπισης με την πάροδο του χρόνου. Ο Τροποποιητικός Νόμος του 2023 είναι πολύ πρόσφατος, με την πρακτική εφαρμογή και χρήση της όλης διαδικασίας που αφορά τους Τύπους Α, Β και Γ να μην μπορεί να αξιολογηθεί δεόντως στο παρόν στάδιο.

Σύμφωνα με ενημέρωση που έχουμε λάβει από το Τμήμα Κτηματολογίου και Χωρομετρίας, αναμένεται ότι οι λειτουργοί των Επαρχιακών Κτηματολογικών Γραφείων θα εφοδιάζονται συνεχώς με καθοδηγητικές οδηγίες και εγκυκλίους, με σκοπό την καλύτερη ενημέρωση του κοινού ως προς τις νέες πρακτικές που έχουν εισαχθεί διά των Τύπων Α, Β και Γ, καθώς και την ορθή εφαρμογή αυτών, με σκοπό την επίτευξη των στόχων που προάγει ο Τροποποιητικός Νόμος του 2023.

Also available in ENGLISH here

A Testament to Seamless Cooperation in Cross Border Litigation

Posted on | by Paschalis Paschali

Two of our litigation partners Andrew Demetriou and Theo Demetriou working with the legal and technical teams of our clients the Electricity Authority of Cyprus and our colleagues from France (initially Quinn Emmanuel and latterly White & Case), Kami Haeri and Alexandre Kiabski were successful in reversing an injunction issued ex parte against the cashing of a bank guarantee before the Paris Commercial Court. The matter required seamless and efficient cooperation between our client, ourselves and our French colleagues in order to achieve this excellent result.

Images of Paris skyline


The initial and possibly most important aspect was to pick the right colleagues in France to work with. This was done by using our previous experience in such cases and researching the experience of the law firms involved in the particular type of litigation. Once the lawyers were selected and conflicts were cleared quick and effective communication and action ensured that our client’s achieved their commercial and strategic objectives.

Recent EU Corporate Tax Proposals and their possible impact on the Cyprus Tax System

Posted on | by Paschalis Paschali

In the last few years, the European Commission has been very active in the corporate tax field, producing a number of legislative proposals. The most important one was, arguably, the Directive on Minimum Effective Tax Rate, which was approved in Council in December 2022. Member States were given until the 31 December 2023 to incorporate the provisions of the new Directive into domestic law. The provisions of this Directive were analysed in a previous newsletter.

In this newsletter, we examine the legislative tax proposals which are still in the pipelines. These are the proposed Unshell Directive, the proposed Directive on Faster and Safer Relief of Excess Withholding Taxes, the proposed BEFIT Directive (Business in Europe: Framework for Income Taxation), the proposed Transfer Pricing Directive and the proposed Directive on Head Office Tax.

THE UNSHELL PROPOSAL

The Unshell proposal was first published as a draft Directive in December 2021. The aim of this proposal was to establish transparency standards around the use of shell entities to enable tax authorities to detect abuse more easily. There is a filtering system (gateways) comprising of several substance indicators. Undertakings will need to show that they satisfy the substance indicators, otherwise they will be presumed to be “shells”. Such a finding could lead to penalties, a denial of a tax residency certificate and unavailability of exemptions under the Parent-Subsidiary and Interest and Royalties Directive.

If adopted as proposed, the Unshell proposal will introduce a heavy compliance burden of reporting, preparation of rebuttals and appeals, not just for MNEs but also for smaller undertakings involved in cross-border transactions. Although the European Commission was expected to publish a revised version of this draft Directive in 2023 to meet the concerns of some stakeholders, this has not happened.

If this proposal is adopted, Cyprus and other traditional holding company jurisdictions are likely to be affected. Of course, much would depend on the gateways and substance indicators that are eventually approved. In any case, advisors would need to assess which undertakings may come within the scope of the rules, whether they can benefit from any carve-outs and how they can ensure they remain low-risk in order to be exempt. If reporting of minimum substance is inevitable, then diligent preparation of documentary evidence will be crucial to ensure the rebuttal of the presumption of a shell.

THE FASTER DIRECTIVE

The Directive on Faster and Safer Relief of Excess Withholding Taxes (FASTER Directive) was proposed by the Commission in June 2023. This proposed Directive is aimed at streamlining the withholding tax reimbursement process making withholding tax procedures in the EU more efficient and secure for investors, financial intermediaries and tax administrations. The Directive also seeks to remove obstacles to cross-border investment and to curb certain abuses.

Three options are set out in the Commission’s proposal.

Under the first option, Member States would continue to apply their current systems (i.e. relief at source and/or refund procedures) but would introduce a common digital tax residence certificate (eTRC) with a common content and format which would be issued/verified in a digital way by all Member States. There would also be a common reporting standard to increase transparency as every financial intermediary throughout the financial chain would report a defined set of information to the source Member State. It would be accompanied by standardised due diligence procedures, liability rules and common refund forms to be filed on behalf of clients/taxpayers using automation.

This second option builds on the elements included in the first option but makes it compulsory for Member States to establish a system of relief at source at the moment of payment that allows for the application of reduced rates under a tax treaty or domestic rules. Under this option, tax administrations would have to monitor the taxes due after the payment takes place.

The third option also builds on the first option, with the added requirement that Member States applying a refund system should ensure that the refund is handled within a pre-defined timeframe, through the Quick Refund System. Member States can introduce or continue to implement a relief at source system.

Of all the options, the third option is considered (by the Commission) to be the preferred option. While the second option would lead to even higher cost savings for investors, the third option enables Member States to retain an ex-ante control over refund requests. This is likely to be more politically feasible in all Member States.

Even though Cyprus does not, in general, levy withholding taxes other than on certain outbound payments if the recipient is a company resident in a jurisdiction featured in the EU’s list of non-cooperative jurisdictions, the proposed Directive is likely to have an impact on the Cyprus tax system. The development of a harmonised digital certificate of residence will help speed up the procedures for relief of excess withholding taxes from other jurisdictions.

Of course, Member State tax administrations will need to be equipped with tools to deal with the relief/refund procedures in a secure and timely manner and to train the relevant staff supervising such tools.

BEFIT

In September 2023, the Commission published the much-awaited BEFIT Directive (Business in Europe: Framework for Income Taxation). This proposal replaces the previously proposed Common Consolidated Corporate Tax Base but the overall aim is the same: to set out a new framework of tax rules to help all companies in a group to determine their tax base on the basis of common rules. The new rules will be mandatory for groups operating in the EU with an annual combined revenue of at least €750 million. Smaller groups may choose to opt in.

All members of the same group (the ‘BEFIT group’) will calculate their tax base in accordance with a common set of rules applied to their already prepared financial accounting statements. The tax bases of all members of the group will then be aggregated into one single tax base, with losses automatically set off against cross-border profits.

Tax returns will be filed both at the level of the filing entity and each group member. Member State authority representatives (the ‘BEFIT team’) will assess and agree on the content and treatment of the BEFIT Information Return. Each Member State where the multinational group is present will be allocated a percentage of the aggregated tax base under a transitional formula. Very importantly also, each Member State can then adjust their allocated tax base according to their own national rules, calculate the profits, and tax at their national corporate tax rate.

BEFIT is expected to reduce tax compliance costs for large businesses. However, a close reading of the proposal suggests that there are some differences with Pillar 2 (and the Directive on Minimum Effective Tax Rate) which is likely to increase the compliance burden of in-scope groups.

In addition, although the BEFIT’s procedural rules were meant to provide a one-stop shop for corporate taxation of MNEs, quite the opposite, they seem to lead to a two-tier compliance mechanism. There is the double filing of returns, but also the possibility of parallel operation of double (and multiple) audits in the Member States involved. (See the IBFD Taskforce’s assessment of the BEFIT.) This is highly unsatisfactory.

Furthermore, the ability to make national adjustments to the allocated part is likely to give rise to tax (base) competition, which to an extent, defeats the objective of having a common tax base.

Whilst there are likely to be very few (if any) Cypriot in-scope groups, nevertheless, the existence of an additional tax base could be attractive to smaller groups that might choose to opt in. Therefore, if the BEFIT Directive is adopted, advisors should assess whether the new tax base is more beneficial than the Cyprus tax base for any Cypriot group with non-resident subsidiaries, and whether a transition to the new system should be encouraged.

TRANSFER PRICING DIRECTIVE

The draft Transfer Pricing Directive was proposed at the same time as the BEFIT proposal, in September 2023. This Directive aims to harmonize transfer pricing rules within the EU, in order to ensure a common approach to transfer pricing problems. As stated in the preamble (page 2), the “proposal aims at simplifying tax rules through increasing tax certainty for businesses in the EU, thereby reducing the risk of litigation and double taxation and the corresponding compliance costs and thus improve competitiveness and efficiency of the Single Market”.

This objective is achieved by incorporating the arm’s length principle into EU law, harmonizing the key transfer pricing rules, clarifying the role and status of the OECD Transfer Pricing Guidelines and creating the possibility to establish common binding rules on specific transfer pricing issues.

The draft Directive contains a common definition of associated enterprises (and therefore the transactions covered). It encompasses a person (legal or natural) who is related to another person in any of the following ways:

  • significant influence on their management;
  • a holding of over 25% of their voting rights;
  • a direct or indirect ownership of over 25% of their capital; or
  • a right to over 25% of their profits.

It is clarified that a permanent establishment is an associated enterprise. This is not always the case under national tax laws.  

The draft Directive also adopts key elements of the OECD Transfer Pricing Guidelines such as the accurate delineation of transactions undertaken, comparability analysis and the five recognised OECD Transfer Pricing methods.

Very importantly, the draft Directive provides for mechanisms to enable corresponding and compensating adjustments. There is a process for applying corresponding adjustments on cross-border transactions within the EU that aims at resolving, within 180 days, any double taxation that follows from transfer pricing adjustments made by an EU Member State. A framework is also introduced for compensating adjustments, which must be recognised by Member States.

In order to ensure a common application of the arm’s length principle it is expressly stated that the latest version of the OECD Transfer Pricing Guidelines will be binding when applying the arm’s length principle in Member States.

Broadly, the common definition of associated enterprises is very welcome, as this concept is not harmonised across Member States. However, the 25% threshold is different from the criteria set out in the BEFIT Directive and the Directive on Minimum Effective Tax Rate. This is likely to cause difficulties in coordinating the various rules.

In addition, the 180 days fast-track process is very attractive, as it will help speed up the resolution of disputes. The framework introduced for compensating adjustments is also very important as not all Member States accept compensating adjustments which can lead to double taxation.

If adopted, this Directive will have an impact on Cyprus transfer pricing rules, mostly in the context of streamlining corresponding adjustments. From a literal reading of Art 33(1) and (5) of Cyprus’ Income Tax Law, it would seem that only upwards compensating adjustments are accepted by the Cyprus tax authorities – unless of course there is a tax treaty in place which provides for upwards and downwards adjustments. The current practice suggests that the Cyprus tax authorities are unwilling to allow downwards adjustments. Also, the law is silent on compensating adjustments, but again it would seem that on the basis of a literal reading of Art 33(1) and (5), only if the compensating adjustments would result in an upward adjustment will they be accepted by the Cyprus tax authorities. If the Directive is adopted, these practices will have to change.

As for the other provisions of the Transfer Pricing Directive, whilst Cyprus now broadly follows the OECD’s Transfer Pricing Guidelines, its transfer pricing regime is a rather new regime. Therefore, a harmonised EU regime will likely have spillover effects as regards the interpretation and application of the newly adopted concepts.

HEAD OFFICE TAXATION DIRECTIVE

Under the new Head Office Taxation Directive (HOT Directive), qualifying SMEs with permanent establishments in other Member States will be able to calculate their tax liability based only on the tax rules of the Member State of their head office.

There are a number of conditions determining eligibility of SMEs, which are scattered in the proposal. Broadly, the proposed regime will only be open to EU tax resident companies (of a form listed in the Annex) with EU permanent establishments. Non-EU permanent establishments are excluded from the scope of the Directive.

There are also size-related requirements. In order for companies to be eligible, they must not exceed at least two of the following three criteria, on a yearly basis: (i) total balance sheet of EUR 20 million; (ii) net turnover of EUR 40 million; (iii) average number of employees of 250.

The draft Directive excludes from the scope of the regime SMEs which are part of a consolidated group for financial accounting purposes in accordance with Directive 2013/34/EU and constitute an autonomous enterprise. There is some uncertainty in this eligibility condition, which is likely to be addressed in a revised draft.

SMEs would only file one single tax return with the head office Member State. This return would then be shared with other Member States where the permanent establishments are located. Collection will take place at the Member State of the head office, but revenues will be shared with the tax authorities of each permanent establishment.

Audits, appeals and dispute resolution procedures will remain domestic and in accordance with the procedural rules of the respective Member State. Joint audits may also be requested by tax authorities. The proposed Directive will amend the Directive on Administrative Cooperation (the DAC) to enable the exchange of information between Member States for the proper functioning of the Head Office Tax Directive.

If a qualifying SME opts into this regime, then it must apply the rules for a period of five fiscal years, which can be renewed. The regime would cease to apply before the expiration of the five-year term if either (i) the SME transfers its tax residence out of the head office Member State or (ii) the joint turnover of its PEs exceeded an amount equal to triple the turnover of the head office for the last two fiscal years.

Broadly, the proposed Directive will create a one-stop-shop regime whereby the tax filing, tax assessments and collections for permanent establishments will be dealt with through the tax authority in the Member State of the head office.

The fact that the tax base of permanent establishments will be calculated according to the tax rules of the head office might generate tax competition. Cyprus and other Member States will strive to have attractive head office tax provisions in order to attract qualifying SMEs. Of course, this will also lead to an increase in the workload of the Cyprus tax authorities, as they would act as a one-stop-shop, dealing with the tax filing and assessment of the various components of the SME, as well as the collection and payment of revenues to other tax authorities. Therefore, adequate resources will need to be devoted to the Cyprus tax authorities, in order to be able to perform their role in the context of this proposed Directive.   

It should be pointed out that the proposed Directive does not directly impact Cyprus’ transfer pricing rules. The proposed rules will simply enable permanent establishments of qualifying SMEs to have their profits calculated according to the tax rules of the Member State of the head office. Therefore, assuming we have a qualifying Cyprus head office with Greek permanent establishments, the Cyprus tax rules will apply to determine how the profits of the Greek permanent establishments will be taxed. Those taxable profits will be subject to the Greek tax rates. However, the prior question of what profits will be attributed to the Greek permanent establishments (which will then be subject to the Cyprus tax rules) is most likely to be determined by Greek tax rules on profit attribution to permanent establishments. Unfortunately, this important point is not clear in the proposed Directive and is likely to give rise to disputes.

For information on any of the issues raised in this newsletter, please get in touch with us.

Seminar on Recent Developments in EU Tax Law, Taxpayers’ Rights and the Impact on Cyprus

Posted on | by Paschalis Paschali

NEWSLETTER by Professor Christiana HJI Panayi, Special Counsel for Tax

On 30th November 2023, Ioannides Demetriou LLC & Nobel Trust Ltd organised a seminar entitled “Recent Developments in EU Tax Law, Taxpayers’ Rights and the Impact on Cyprus”. The keynote speaker for this event was Professor Philip Baker, KC, OBE. I was also a speaker in this seminar, covering in detail the issues discussed in my last newsletter.

Professor Philip Baker is a leading expert in international and EU tax law. He is a practicing barrister and King’s Counsel, practicing from chambers in Field Court, Gray’s Inn.  Additionally, he is a Visiting Professor at the Law Faculty of Oxford University and a Senior Visiting Fellow at the Institute of Advanced Legal Studies, University of London.

Professor Baker has a particular interest in taxation and the European Convention on Human Rights and is widely considered as an authority on this area of law. Therefore, it was a great privilege to hear Professor Baker’s presentation in this seminar.

Professor Baker first gave a general overview of the legal framework for the protection of taxpayers’ rights and the important function of these rights. He talked about the expanding powers of tax authorities and the need for safeguards and limits. Some examples of taxpayers’ rights include the confidentiality of personal data, rights during investigations and audits as well as trials, rights during enforcement of taxes etc.

He explained that there are different levels of protection of these rights: protection under domestic law (e.g. under the tax law, and/or administrative law, and/or constitutional law), protection under international law (e.g. the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights) and protection under regional laws such as the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR). The protection offered by the CFR on taxpayers’ rights, as relevant to the audit process, investigations, information orders and penalties was discussed in more detail in a previous newsletter.

Professor Baker discussed how rights under the ECHR, the CFR and general EU law have an important impact on issues such as data protection, exchange of information and beneficial ownership registers.

As far as data protection is concerned, the relevant rights are Arts 8 of the ECHR, Arts 7-8 of the CFR but also Arts 16 TEU and Art 39 TEU. The GDPR legislation is also very important. All these rights impose restrictions on the use of data and obligations for the protection of data by authorities. There are of course limitations to the protection offered by these rules, as shown in some cases litigated at the Court of Justice, which were briefly discussed in the seminar.

As far as automatic exchange of information is concerned, Professor Baker explained that although this is now widely spread as a result of FATCA and subsequent OECD/G20 but also EU developments, this does not mean that it is immune from attack under the existing legal framework. In the past, warnings were sounded by, inter alia, the European Data Protection Board, as regards the inadequate protection of taxpayers’ data due to the roll-out of automatic exchange of information. With the intensification of automatic exchange of information both internationally and in the EU context, the possible tensions with the legal framework for the protection of taxpayers’ rights should not be underestimated by all relevant parties: tax administrations, banks, (tax) data collectors and taxpayers. Professor Baker also predicted that there is a likely to be a challenge to FATCA and the OECD’s Common Reporting Standard soon. ‘This is a time bomb about to explode’, he warned.

Finally, Professor Baker discussed issues pertaining to public registers of beneficial ownership. Following the direct challenge to the lawfulness of public access to beneficial ownership registers in the SOVIM case, Cyprus, in addition to other Member States have closed their registers. Other Member States have kept them open. Professor Baker questioned whether public beneficial ownership registers are lawful under EU law and whether access only to those who can show a legitimate interest would be sufficient to comply with Arts 7 and 8 CFR.

Professor Baker concluded his presentation by arguing that there needs to be a balance between rights to privacy/data protection and the disclosure of wrong-doing and tax evasion. How this balance can be achieved by the relevant actors (e.g. tax authorities and financial institutions) is a difficult question which can only be addressed by careful examination of the various layers of legal principles pertaining to this area.

Recording of Professor Baker’s and Professor HJI Panayi’s presentations

For more information on any of the issues raised in this seminar, please get in touch with us.

EU NIS2 Directive on Cybersecurity

Posted on | by Paschalis Paschali

The date of implementation of the EU NIS2 Directive on Cybersecurity is fast approaching!

EU NIS2 Directive

In an effort aimed at strengthening cybersecurity across the EU this directive is designed to help organisations and businesses protect themselves against cyberthreats. By the 17th of October 2024 EU member states must implement NIS2 into national law.

Working in conjunction with our friends at Eversheds Sutherland, our Partner Theo Demetriou has compiled the Cypriot element to the Eversheds Sutherland country-by-country guide to NIS2. This guide is a useful tool in assisting your organisation or business in achieving NIS2 compliance and will be updated regularly as the situation develops.

It would be prudent to act now to ensure that your organisation or business is compliant because NIS2 includes increased monitoring, more robust reporting, and stricter fines and penalties for non-compliance, including personal liability of management and reputational damage.

For further information in relation to NIS2, how it will impact your organisation and/or business and how to best prepare for it please contact us directly.

Expert Witnesses under the New Civil Procedure Rules

Posted on | by Paschalis Paschali

The new Civil Procedure Rules, which have entered into force on the 1st of September 2023, have brought about monumental changes in the way in which cases will be heard before the Cypriot Courts.

A very important change comes with Part 34 of the new Regulations, which concerns the evidence given to the Court by Experts. Part 34 has completely revised what was in force up until now in relation to Expert evidence. The ultimate purpose of this new Part 34 is to limit the testimony of Experts so as to resolve the dispute faster and with a reduced costs burden. If the Expert ignores his obligations towards the Court, there is a real risk that the Court will decide that this testimony cannot be taken into account.

The general principle that Experts must be objective and impartial, of course, still applies.  

One of the two very important changes brought about by Part 34 is that, whereas until recently (before the entry into force of the New Civil Procedure Rules) each party in Court proceedings, selected the Expert whose testimony it wished to adduce to the Court, without first being obliged to submit a request, this unfettered right will no longer exist.

The summoning of an Expert by the parties can now only be achieved by applying to the Court. A disputing party, which wishes to file a relevant Expert Report with the Court, may not do so without prior permission, and when such permission is requested, the issues to be dealt with by that Expert must, inter alia, be specified.

However, what must be borne in mind by both the parties to the dispute and the Court, is that the right of the Court to limit the testimony of the Expert cannot be exercised arbitrarily and must always be exercised in the light of the overriding objective of a achieving a fair trial. In addition, the facts of each case should be taken into account, as well as suggestions/positions of the parties and there should be no general instructions from the Court on these issues.

The second very important change brought about by Part 34, is that the Court is now given the power to order that the testimony be provided by a joint Expert if the disputing parties think it appropriate for an Expert witness to give evidence on a particular matter. However, in the event of disagreement between the parties as to the person of the joint Expert, the Court itself is invited to select such an Expert from a list drawn up by the parties (unless otherwise instructed). It should also be noted that, in accordance with the relevant (English) case-law on the subject, it has been held that, where a party agrees to the appointment of a joint Expert, this does not constitute an obstacle to requesting additional appointment of an Expert if there is good reason to contest the joint Expert’s Report.

Furthermore Part 34 places a raft of stringent requirements on the content of Expert Reports and requires Experts to state explicitly whether there are conflicting opinions on a particular matter and whether the Expert can opine on a particular matter with or without reservation. Furthermore, the Court now is afforded the power to investigate the precise instructions that were given the Expert by the party adducing the Expert evidence and the Expert must include in his Expert report a summary of his opinion so as to make it easier for the Court to understand his opinion and decide upon it. Finally, Expert Reports must now contain a Statement of Truth signed by the Expert. Understandably, these heightened requirements aim at ensuring that the Expert evidence adduced before the Court will be of the highest quality.

In conclusion, it is plainly evident that under Part 34 parties will now have to put particular care into choosing Experts, giving instructions to Experts and in readying the Expert Report so that it can be successfully adduced as evidence before the Court.