COMMISSION REGULATION (EC) No 1179/2008
of 28 November 2008
laying down detailed rules for implementing certain provisions of Council Directive 2008/55/EC on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (1), and in particular Article 22 thereof,
Whereas:
(1)
Detailed rules for implementing certain provisions of Directive 2008/55/EC are laid down in Commission Directive 2002/94/EC (2). However, experience has shown that, a Directive, due to its legal nature, is not the most efficient legal instrument to fully achieve the purpose of a uniform procedure for mutual assistance. Therefore, it is appropriate to replace that Directive by a Regulation.
(2)
In order to facilitate the exchange of information between the competent authorities of the Member States, all assistance requests and all accompanying documents and information should, as far as possible, be communicated by electronic means.
(3)
In order to ensure that appropriate data and information are transmitted, models of forms for requests for mutual assistance among national authorities of the Member States should be established. It should be possible to update the structure and the lay-out of the electronic forms without amending the models in order to adapt those forms to the requirements and possibilities of the electronic communication system, provided that the requests contain the set of data and information required.
(4)
In order to enable the Commission to evaluate the effect and efficiency of the procedures laid down in Directive 2008/55/EC on a regular basis, it is appropriate to set out certain information to be communicated to the Commission by the Member States every year.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on Recovery,
HAS ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1
This Regulation lays down the detailed rules for implementing Article 4(2) and (4), Article 5(2) and (3), Article 7, Article 8, Article 9, Article 11, Article 12(1) and (2), Article 14, Article 18(3) and Article 24 of Directive 2008/55/EC.
It also lays down the detailed rules on conversion, transfer of sums recovered, the fixing of a minimum amount for claims which may give rise to a request for assistance, as well as the means by which communications between authorities may be transmitted.
Article 2
For the purposes of this Regulation, the following definitions shall apply:
1.
transmission ‘by electronic means’ means transmission using electronic equipment for processing, including digital compression, of data and employing wires, radio transmission, optical technologies or other electromagnetic means;
2.
‘CCN/CSI network’ means the common platform based on the Common Communication Network (CCN) and Common System Interface (CSI), developed by the Community to ensure all transmissions by electronic means between competent authorities in the area of Customs and Taxation.
CHAPTER II
REQUESTS FOR INFORMATION
Article 3
The request for information referred to in Article 4 of Directive 2008/55/EC shall comprise the set of data and information contained in the model of the form set out in Annex I to this Regulation.
Where a similar request has been addressed to any other authority, the applicant authority shall indicate in its request for information the name of that authority.
Article 4
The request for information may relate to any of the following:
1.
the debtor;
2.
any person liable for settlement of the claim under the law in force in the Member State in which the applicant authority is situated (hereinafter ‘the Member State of the applicant authority’);
3.
any third party holding assets belonging to one of the persons mentioned under points (1) or (2).
Article 5
1. The requested authority shall acknowledge receipt of the request for information as soon as possible and in any event within seven days of such receipt.
2. Immediately upon receipt of the request the requested authority shall, where appropriate, ask the applicant authority to provide any additional information necessary. The applicant authority shall provide all additional necessary information to which it normally has access.
Article 6
1. The requested authority shall transmit each item of requested information to the applicant authority as and when it is obtained.
2. Where all or some of the requested information cannot be obtained within a reasonable time, having regard to the particular case, the requested authority shall so inform the applicant authority, indicating the reasons therefore.
In any event, at the end of six months from the date of acknowledgement of receipt of the request, the requested authority shall inform the applicant authority of the outcome of the investigations which it has conducted in order to obtain the information requested.
In the light of the information received from the requested authority, the applicant authority may request the latter to continue its investigation. That request shall be made within two months of the receipt of the notification of the outcome of the investigations carried out by the requested authority, and shall be treated by the requested authority in accordance with the provisions applying to the initial request.
Article 7
If the requested authority decides not to comply with the request for information, it shall notify the applicant authority of the reasons for the refusal to comply with the request, specifying the provisions of Article 4 of Directive 2008/55/EC on which it relies. Such notification shall be given by the requested authority as soon as it has taken its decision and in any event within three months of the date of the acknowledgement of the receipt of the request.
Article 8
The applicant authority may at any time withdraw the request for information which it has sent to the requested authority. The decision to withdraw shall be transmitted to the requested authority.
CHAPTER III
REQUESTS FOR NOTIFICATION
Article 9
The request for notification referred to in Article 5 of Directive 2008/55/EC shall comprise the set of data and information contained in the model of the form set out in Annex II to this Regulation.
The original or a certified copy of the instrument or decision, notification of which is requested, shall be attached to the request.
Article 10
The request for notification may relate to any natural or legal person who, in accordance with the law in force in the Member State of the applicant authority, is required to be informed of any instrument or decision which concerns that person.
In so far as such is not indicated in the instrument or decision of which notification is requested, the request for notification shall refer to the rules in force in the Member State of the applicant authority governing the procedure for contestation of the claim or for its recovery.
Article 11
1. The requested authority shall acknowledge receipt of the request for notification as soon as possible and in any event within seven days of such receipt.
Immediately upon receipt of the request for notification, the requested authority shall take the necessary measures to effect notification in accordance with the law in force in the Member State in which it is situated.
If necessary, but without jeopardising the final date for notification indicated in the request for notification, the requested authority shall ask the applicant authority to provide additional information.
The applicant authority shall provide all additional information to which it normally has access.
2. The requested authority shall inform the applicant authority of the date of notification as soon as this has been effected, by certifying the notification in the request form returned to the applicant authority.
CHAPTER IV
REQUESTS FOR RECOVERY OR FOR PRECAUTIONARY MEASURES
Article 12
1. Requests for recovery or for precautionary measures referred to in Articles 6 and 13 respectively of Directive 2008/55/EC shall comprise the set of data and information contained in the model of the form set out in Annex III to this Regulation.
Such requests shall include a declaration that the conditions laid down in Directive 2008/55/EC for initiating the mutual assistance procedure have been fulfilled.
2. The original or a certified copy of the instrument permitting enforcement shall accompany the request for recovery or for precautionary measures. A single instrument may be issued in respect of several claims where they concern one and the same person.
For the purposes of Articles 13 to 20 of this Regulation, all claims covered by the same instrument permitting enforcement shall be deemed to constitute a single claim.
Article 13
Requests for recovery or for precautionary measures may relate to any person referred to in Article 4.
Article 14
1. If the currency of the Member State of the requested authority is different from the currency of the Member State of the applicant authority, the applicant authority shall express the amount of the claim to be recovered in both currencies.
2. The rate of exchange to be used for the purposes of paragraph 1 shall be the latest selling rate recorded on the most representative exchange market or markets of the Member State of the applicant authority on the date when the request for recovery is sent.
Article 15
1. The requested authority shall, as soon as possible and in any event within seven days of receipt of the request for recovery or for precautionary measures:
(a)
acknowledge receipt of the request;
(b)
ask the applicant authority to complete the request if it does not contain the information or other particulars mentioned in Article 7 of Directive 2008/55/EC.
2. If the requested authority does not take the requisite action within the three-month period laid down in Article 8 of Directive 2008/55/EC, it shall, as soon as possible and in any event within seven days of the expiry of that period, inform the applicant authority of the grounds for its failure to comply with the time limit.
Article 16
Where, within a reasonable time having regard to the particular case, all or part of the claim cannot be recovered or precautionary measures cannot be taken, the requested authority shall so inform the applicant authority, indicating the reasons therefore.
No later than at the end of each six-month period following the date of acknowledgement of the receipt of the request, the requested authority shall inform the applicant authority of the state of progress or the outcome of the procedure for recovery or for precautionary measures.
In the light of the information received from the requested authority, the applicant authority may request the latter to re-open the procedure for recovery or for precautionary measures. That request shall be made within two months of the receipt of the notification of the outcome of that procedure, and shall be treated by the requested authority in accordance with the provisions applying to the initial request.
Article 17
1. Any action contesting the claim or the instrument permitting its enforcement which is taken in the Member State of the applicant authority shall be notified to the requested authority by the applicant authority immediately after the latter has been informed of such action.
2. If the laws, regulations and administrative practices in force in the Member State of the requested authority do not permit precautionary measures or the recovery requested under the second subparagraph of Article 12(2) of Directive 2008/55/EC, the requested authority shall notify the applicant authority to that effect as soon as possible and in any event within one month of the receipt of the notification referred to in paragraph 1.
3. Any action which is taken in the Member State of the requested authority for reimbursement of sums recovered or for compensation in relation to recovery of contested claims under the second subparagraph of Article 12(2) of Directive 2008/55/EC shall be notified to the applicant authority by the requested authority immediately after the latter has been informed of such action.
The requested authority shall as far as possible involve the applicant authority in the procedures for settling the amount to be reimbursed and the compensation due. Upon a reasoned request from the requested authority, the applicant authority shall transfer the sums reimbursed and the compensation paid within two months of the receipt of that request.
Article 18
1. If the request for recovery or for precautionary measures becomes devoid of purpose as a result of payment of the claim or of its cancellation or for any other reason, the applicant authority shall immediately inform the requested authority so that the latter may stop any action which it has undertaken.
2. Where the amount of the claim which is the subject of the request for recovery or for precautionary measures is adjusted for any reason, the applicant authority shall inform the requested authority, and if necessary issue a new instrument permitting enforcement.
3. If the adjustment entails a reduction in the amount of the claim, the requested authority shall continue the action which it has undertaken with a view to recovery or to the taking of precautionary measures, but that action shall be limited to the amount still outstanding.
If, at the time when the requested authority is informed of the reduction in the amount of the claim, an amount exceeding the amount still outstanding has already been recovered by it but the transfer procedure referred to in Article 19 has not yet been initiated, the requested authority shall repay the amount overpaid to the person entitled thereto.
4. If the adjustment entails an increase in the amount of the claim, the applicant authority shall as soon as possible address to the requested authority an additional request for recovery or for precautionary measures.
That additional request shall, as far as possible, be dealt with by the requested authority at the same time as the original request from the applicant authority. Where, in view of the state of progress of the existing procedure, consolidation of the additional request with the original request is not possible, the requested authority shall be required to comply with the additional request only if it concerns an amount not less than that referred to in Article 25(2).
5. In order to convert the adjusted amount of the claim into the currency of the Member State of the requested authority, the applicant authority shall use the exchange rate used in its original request.
Article 19
Any sum recovered by the requested authority, including, where applicable, the interest referred to in Article 9(2) of Directive 2008/55/EC, shall be transferred to the applicant authority in the currency of the Member State of the requested authority. The transfer shall take place within one month of the date on which recovery was effected.
The competent authorities of the Member States may agree different arrangements for the transfer of amounts below the threshold referred to in Article 25(2) of this Regulation.
Article 20
Irrespective of any amounts collected by the requested authority by way of the interest referred to in Article 9(2) of Directive 2008/55/EC, the claim shall be deemed to have been recovered in proportion to the recovery of the amount expressed in the national currency of the Member State of the requested authority, on the basis of the exchange rate referred to in Article 14(2) of this Regulation.
CHAPTER V
TRANSMISSION OF COMMUNICATIONS
Article 21
1. All assistance requests, instruments permitting enforcement and copies of these instruments, and any other accompanying documents, as well as any other information communicated with regard to these requests shall, as far as possible, be transmitted by electronic means, via the CCN/CSI network.
Such documents transmitted in electronic form or print outs thereof shall be deemed to have the same legal effect as documents transmitted by post.
2. If the applicant authority sends a copy of the instrument permitting enforcement or of any other document, it shall certify the conformity of this copy with the original, by stating in this copy, in the official language or one of the official languages of the Member State in which it is situated, the words ‘certified a true copy’, the name of the certifying official and the date of this certification.
3. If requests for mutual assistance are transmitted by electronic means, the structure and the lay-out of the models referred to in the first paragraph of Article 3, the first paragraph of Article 9 and in Article 12(1) may be adapted to the requirements and possibilities of the electronic communication system, provided that the content of information is not altered.
4. If a request cannot be transmitted by electronic means, it shall be transmitted by post. In that case, the request shall be signed by an official of the applicant authority, duly authorised to make such a request.
Article 22
Each Member State shall designate a central office with principal responsibility for communication by electronic means with other Member States. That office shall be connected to the CCN/CSI network.
Where several authorities are appointed in a Member State for the purpose of applying this Regulation, the central office shall be responsible for the forwarding of all communication by electronic means between those authorities and the central offices of other Member States.
Article 23
1. Where the competent authorities of the Member States store information in electronic data bases and exchange such information by electronic means, they shall take all measures necessary to ensure that any information communicated in whatever form pursuant to this Regulation is treated as confidential.
It shall be covered by the obligation of professional secrecy and shall enjoy the protection extended to similar information under the national law of the Member State which received it.
2. The information referred to in paragraph 1 may be made available only to the persons and authorities referred to in Article 16 of Directive 2008/55/EC.
Such information may be used in connection with judicial or administrative proceedings initiated for the recovery of levies, duties, taxes and other measures referred to in Article 2 of Directive 2008/55/EC.
Persons duly accredited by the Security Accreditation Authority of the European Commission may have access to this information only in so far as is necessary for the care, maintenance and development of the CCN/CSI network.
3. Where the competent authorities of the Member States communicate by electronic means, they shall take all measures necessary to ensure that all communications are duly authorised.
Article 24
Information and other particulars communicated by the requested authority to the applicant authority shall be conveyed in the official language or one of the official languages of the Member State of the requested authority or in another language agreed between the applicant and requested authorities.
CHAPTER VI
ELIGIBILITY AND REFUSAL OF REQUESTS FOR ASSISTANCE
Article 25
1. A request for assistance may be made by the applicant authority in respect of either a single claim or several claims where those are recoverable from one and the same person.
2. No request for assistance may be made if the total amount of the relevant claim or claims listed in Article 2 of Directive 2008/55/EC is less than EUR 1 500.
Article 26
If the requested authority decides, pursuant to the first paragraph of Article 14 of Directive 2008/55/EC, to refuse a request for assistance, it shall notify the applicant authority of the reasons for the refusal. Such notification shall be given by the requested authority as soon as it has taken its decision and in any event within three months of the date of receipt of the request for assistance.
CHAPTER VII
REIMBURSEMENT ARRANGEMENTS
Article 27
Each Member State shall appoint at least one official duly authorised to agree reimbursement arrangements under Article 18(3) of Directive 2008/55/EC.
Article 28
1. If the requested authority decides to request reimbursement arrangements it shall notify the applicant authority of the reasons for its view that recovery of the claim poses a specific problem, entails very high costs or relates to the fight against organised crime.
The requested authority shall append a detailed estimate of the costs for which it requests reimbursement by the applicant authority.
2. The applicant authority shall acknowledge receipt of the request for reimbursement arrangements as soon as possible and in any event within seven days of receipt.
Within two months of the date of acknowledgement of receipt of the said request, the applicant authority shall inform the requested authority whether and to what extent it agrees with the proposed reimbursement arrangements.
3. If no agreement is reached between the applicant and requested authority with respect to reimbursement arrangements, the requested authority shall continue recovery procedures in the normal way.
CHAPTER VIII
FINAL PROVISIONS
Article 29
Each Member State shall inform the Commission before 15 March each year, as far as possible by electronic means, of the use made of the procedures laid down in Directive 2008/55/EC and of the results achieved in the previous calendar year.
The communication of that information shall comprise the elements contained in the model of the form set out in Annex IV to this Regulation.
Communication of any additional information, relating to the nature of the claims for which recovery assistance was requested or granted, shall comprise the elements contained in the model of the form set out in Annex V to this Regulation.
Article 30
Each Member State shall notify the other Member States and the Commission of the name and address of the competent authorities for the purpose of applying this Regulation, as well as of the officials authorised to agree arrangements under Article 18(3) of Directive 2008/55/EC.
Article 31
Directive 2002/94/EC is hereby repealed.
The references to that Directive shall be construed as references to this Regulation.
Article 32
This Regulation shall enter into force on 1 January 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 November 2008.