# EUR-Lex - 52012DC0058 - EN

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# 52012DC0058

**REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the use of the provisions on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures in 2009-2010 /* COM/2012/058 final */**

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REPORT FROM THE COMMISSION TO THE
COUNCIL AND THE EUROPEAN PARLIAMENT

on the use of the provisions on mutual
assistance for the recovery of claims relating to certain levies, duties, taxes
and other measures in 2009-2010

1.           Introduction

EC Member States provide
mutual assistance to each other for the recovery of claims relating to certain
levies, duties, taxes and other measures, in accordance with Directive
2008/55/EC of 26 May 2008[1]. Under this directive the Commission is required to produce a
regular report on the use of the mutual assistance arrangements. The present
report relates to recovery assistance granted in 2009-2010.[2] It also deals with the current changes and initiatives in this
field.

2.           Analysis
of the use of mutual assistance measures in 2009-2010

Effective
collection and recovery of taxes is a cornerstone of an efficient and fair
taxation system. Especially in times where all Member States face budgetary
challenges, authorities have to strive for improving tax collection and
recovery. In this regard, mutual recovery assistance between the tax
authorities of different Member States constitutes an essential tool, helping
to protect the financial interests of the Member States and of the European
Union as a whole. This is confirmed by the ever increasing use of the EU
legislative framework for tax recovery assistance.

2.1.        Increasing use of EU mutual assistance
requests

Statistics provided by Member States show
an increasing number of requests for assistance on the basis of the EU
legislation (first column in the graphics below).

It also appears that the EU legislative
framework is much more widely used between EU Member States than any other
mutual recovery assistance agreement or arrangement. The use of other mutual
assistance arrangements between the Member States (second column in
the graphics below) shows a diminishing trend in the period 2005-2010. (Data on
the use of other mutual assistance arrangements are only available for the
period from 2005 to 2010)[3].

2.1.1.     Evolution
of the requests for information

2.1.2. Evolution of the requests for
notification

2.1.3. Evolution of the requests for
recovery

2.1.4. Nature of the claims for which
recovery assistance was requested

The nature of the claims, in percentage of
the total amount of all claims, is illustrated by the following graphics[4]:

–
      requests
relating to customs duties (and other amounts referred to in Art.
2(a)-(d) of Directive 2008/55/EC) represent a minor part of all requests (5 %
in 2009 and 9 % in 2010);

–
      requests
concerning VAT claims (referred to in Art. 2(e) of Directive 2008/55/EC)
no longer represent the biggest part of the requests for recovery measures.
Nevertheless, their part remains considerable (41 % in 2009 and 26 % in 2010);

–
      requests
relating to excise duties (referred to in Art. 2(f) of Directive
2008/55/EC) also represent a fluctuating part of all requests (7 % in 2009 and
21 % in 2010);

–
      requests
relating to taxes on income and capital (referred to in Art. 2(g) of
Directive 2008/55/EC) represent a major part of the requests (47 % in 2009 and
44 % in 2010).

2.2.      Increasing amounts recovered

2.2.1. Global evolution of the amounts
for which recovery assistance was requested

The amounts for which recovery assistance
was requested in 2009 and 2010 dropped considerably, compared to the preceding
years (2003 = 100 %). This evolution is in line with the temporary drop of the
number of recovery requests in 2009; but in contrast with the increase of the
number of recovery requests in 2010.

2.2.2. Global evolution of the amounts
recovered

The evolution of the amounts that are
effectively recovered shows an increasing tendency. Compared to the amounts
recovered in 2003 (100 %), the recovered amounts have risen to almost 840 % in
2009 and almost 880 % in 2010[5].

2.2.3.     Distribution of the amounts
recovered for other Member States, according to the years to which the requests
concerned relate

It takes some time before recovery measures
are taken and before they produce their effect. For instance, amounts recovered
by a requested Member State in 2008 will only partially relate to requests
received in 2008; these amounts will also relate to requests received in
previous years. The following graphics show, with regard to the amounts
effectively recovered in the years 2005-2010, to which year the requests
concerned relate. It appears from these statistics that about 90 % of the
amounts recovered in these years relates to requests made in the same year
(indicated by "=" in the graphics below) or in the three previous
calendar years (indicated as "-1" to "-3" in the graphics
below).

2.2.4. Global recovery ratio

The statistics show that in the period
2009-2010, the recovered amounts have continued to increase considerably, while
the amounts for which recovery assistance is requested have decreased. However,
this does not allow to conclude that the global recovery ratio has increased a
lot, compared to the situation described in the previous report (where it was
observed that the global recovery ratio for the recovery requests between EU
Member States could then be expected to be around 5 %). It must indeed be taken
into account that the recovery measures taken in the execution of a request
received in a certain year do not produce all their effects in the same year
(see point 2.2.3.). The higher amounts recovered in 2009 and 2010 largely
relate to requests sent in the years 2006-2008, where recovery assistance was
requested for higher amounts too.

Anyhow, the decrease of the amounts for
which recovery assistance was requested in the period 2009-2010 may in the
coming years lead to an increase of the recovery rate for these requests. It
can be expected that this rate will even end higher than the recovery rate of 6
% which has been obtained so far for the recovery requests received in 2004.[6] Nevertheless, it remains
important to further improve the global recovery ratio.

3. Strengthening the mutual recovery assistance

In its previous report (document
COM(2009)451 of 4.9.2009), the Commission emphasized that special efforts were
needed to increase the efficiency of the recovery assistance and to reinforce:

–
the possibilities for providing recovery
assistance under the EU legislation, and

–
the recovery instruments available to the tax
authorities under their domestic legislation.

3.1. New EU legislation

On 16 March 2010, the Council adopted
Directive 2010/24/EU concerning mutual assistance for the recovery of claims
relating to taxes, duties and other measures.[7]
The Member States have to apply this new directive from 1 January 2012. The
implementing Commission provisions, which got the unanimous support of the
Recovery Committee at its meeting of 3 and 4 October 2011, will be adopted
before the end of 2011.

This new directive is a milestone towards a
more efficient recovery assistance. The major improvements relate to:

–
the introduction of a uniform instrument
permitting enforcement in the requested Member State and a uniform notification
form

The adoption of these uniform instruments allows
to avoid the current problems and costs of translation and recognition of
foreign enforcement titles. A first attempt to reduce these problems was made
in 2001, when Council Directive 2001/44/EC was adopted.[8] At that moment, the idea was
already to permit more efficient and effective recovery of claims, by providing
that the instrument permitting enforcement of the claim should, in principle,
be treated as an instrument of the requested Member State. This approach was in
line with the objectives in civil, commercial and criminal matters, following
the guidelines set out by the European Council at its meeting in Tampere on 15
and 16 October 1999, which held that enhanced mutual recognition of judicial
decisions and judgments would facilitate cooperation between authorities and
contribute to legal certainty in the European Union.[9] At that time, it appeared
however that this principle could not yet be fully applied and Directive
2001/44/EC still provided that, where appropriate and in accordance with the
provisions in force in the requested Member State, the instrument permitting
enforcement may still be accepted as, recognised as, supplemented with, or
replaced by an instrument authorising enforcement in the territory of the
requested Member State. Under the new directive, the
adoption of a uniform instrument to be used for enforcement measures in the
requested Member State, as well as the adoption of a uniform standard form for
notification of instruments and decisions relating to the claim, should resolve
the problems of recognition and translation of instruments emanating from
another Member State. This will increase the efficiency of the mutual recovery
assistance;

–
the extension of the scope

The extension of the scope to all taxes and
duties levied in the Member States will considerably simplify the work of the
tax authorities: the same set of rules can now be applied to all tax recovery
requests. This allows them to avoid the difficulties that result from the
application of several agreements and arrangements, each with different
possibilities, conditions, modalities and communication methods. This extension
is also logic, since the competitiveness and the fiscal neutrality of the
internal market is not only affected by the non-payment of the taxes now
falling within the scope of Directive 2008/55/EC. Distorsions of the internal
market conditions, as well as the threat to financial interests of the
Community and the Member States may also result from fraud concerning other
taxes;

–
the reinforcement of possibilities to request
recovery assistance

Under the existing rules, the applicant authority
may not make a request for recovery unless it has applied appropriate recovery
procedures available to it in its own Member State, and the measures taken will
not result in the payment in full of the claim (Art. 7(2)(b) of Directive
2008/55/EC). Under the new directive, the possibilities to request recovery
assistance have been enlarged. Although the applicant authority is in principle
still expected to apply appropriate recovery procedures available in its own
Member State before requesting assistance, an explicit exception is provided
for situations "where recourse to such procedures
in the applicant Member State would give rise to disproportionate
difficulty" (Art. 11(2)(b) of Directive 2010/24/EU). In this regard, it is
important to note that the Council has decided to use an identical wording as
in Art. 19 of the Joint Council of Europe – OECD agreement on administrative
assistance in tax matters. This allows to conclude that this new provision can
be understood in the same way, which implies that recovery assistance can be
requested if recovery can be obtained more easily in the requested State.[10] The new
directive thus makes it possible to send recovery requests at an early stage. Experience indeed shows that the older the claim,
the slimmer the recovery chances. Having the possibility to make requests at an
early stage is particularly important in situations of fraudulent debtors
trying to dislocate assets and to escape from their payment obligations.

The use of new standard electronic request
forms, integrating the new uniform instruments and allowing an automatic
translation, will further facilitate the handling of assistance requests.

3.2.        Reinforcement
of the collection and recovery systems within the Member States

The success of the recovery assistance
depends also on the strength of the national recovery actions. Member States
are in a continuous quest for more effective collection and recovery processes.
Improving these processes is primarily a matter for the Member States. However,
in accordance with the recommendation of the Recovery Committee, the Commission
will set up a project group to assist the Member States by developing best
practices in this field.

4.           Conclusions and
further initiatives

The statistics show that the mutual
recovery assistance arrangements have been intensively used in the period 2009-2010.
The increase of the recovered amounts proves the usefulness of this cooperation
between the Member States.

The application of the new EU legislation from
1 January 2012 should further improve the efficiency of the recovery
assistance. In addition, Member States have to examine to what extent their
national tax collection and recovery legislation, processes and instruments can
be improved. To this end, the Commission shall
set up Fiscalis project groups to develop best practices recommendations in
this field. The Commission shall also assist the Member States in the
development of spontaneous and automatic information exchange for recovery
purposes. On the basis of the Member States' experiences with the new
legislative framework, the Commission shall also examine whether further EU
initiatives should be taken to improve the mutual recovery assistance, in
particular with regard to precautionary measures and insolvency situations.

[1]               OJ L 150, 10.6.2008, p. 28.

[2]               The first report (document COM(2006)43, published on
8.2.2006) provided an overview of the mutual recovery assistance provided in
2003 and 2004. The second report (document COM(2009)451, published on 4.9.2009)
provided an overview of the mutual recovery assistance provided in 2005-2008.

[3]               Information according to the statistics communicated
by requested Member States.

[4]               Statistics based on the average of requests received
and sent. For 2005, these statistics are based on data reported by 17 Member
States; for 2006 on data reported by 20 Member States; for 2007 on data
reported by 24 Member States; for 2008 on data reported by 25 Member States;
for 2009 and 2010 on data reported by 26 Member States.

Requests relating to taxes
on insurance premiums (referred to in Art. 2(h) of Directive 2008/55/EC)
represent such a small part of all requests that they do not appear in this
table.

[5]               Statistics reported by the requested Member States as
recovered at the request of other Member States.

[6]               It should also be kept in mind that the total sum of
the amounts mentioned in the recovery requests does not necessarily correspond
to the amounts really due; e.g. the same claim may be the subject of several
requests to different Member States; or requests may be withdrawn at a later
stage, because the claims are paid voluntarily or contested successfully. At
present, the statistics available do not allow to take account of all these
situations.

[7]               OJ L 84 of 31.3.2010, p. 1.

[8]               Council Directive 2001/44/EC of 15 June 2001, OJ L
175 of 28.6.2001, p. 17.

[9]               See Council draft programme of measures for
implementation of the principle of mutual recognition of decisions in civil and
commercial measures (OJ C 12 of 15.1.2001, p. 1) and Council Programme of
measures to implement the principle of mutual recognition of decisions in
criminal matters (OJ C 12 of 15.1.2001, p. 10).

[10]             See Explanatory report to the Joint Council of Europe –
OECD Agreement on administrative assistance in tax matters, point 204:
"(...) For instance, (...) in the case of assistance in recovery, some assets
might only be seized through lengthy proceedings in the applicant State, while
there are other assets in the requested State that can be seized more
easily."