1976L0308 — EN — 01.01.1995 — 005.001 — 1
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►B ►M2►M3COUNCIL DIRECTIVE
of 15 March 1976
on mutual assistance for the recovery of claims resulting from operations forming part of the
system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural
levies and customs duties, and in respect of value added tax and certain excise duties
(76/308/EEC) ◄◄
(OJ L 73, 19.3.1976, p. 18)
Amended by:
Official Journal
No page date
►M1Council Directive 79/1071/EEC of 6 December 1979 L 331 10 27.12.1979
►M2Council Directive 92/12/EEC of 25 February 1992 L 76 1 23.3.1992
►M3 amended by Council Directive 92/108/EEC of 14 December 1992 L 390 124 31.12.1992
Amended by:
►A1Act of Accession of Greece L 291 17 19.11.1979
►A2Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A3Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCIL DIRECTIVE
of 15 March 1976
on mutual assistance for the recovery of claims resulting from
operations forming part of the system of financing the European
Agricultural Guidance and Guarantee Fund, and of agriculturallevies and customs duties, and in respect of value added tax and
certain excise duties
(76/308/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100 thereof,
Having regard to Council Regulation (EEC) No 729/70 of 21 April
1970 on the financing of the common agricultural policy(1), aslas t
amended by Regulation (EEC) No 2788/72(2), and in particular Article
8 (3) thereof,
Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament(
3),
Having regard to the opinion of the Economic and Social
Committee(4),
Whereas it is not at present possible to enforce in one Member State a
claim for recovery substantiated by a document drawn up by the autho-ritiesof another Member State;
Whereasthe fact that national provis ionsrelating to recovery are
applicable only within national territories is in itself an obstacle to the
establishment and functioning of the common market; whereas this
situation prevents Community rules from being fully and fairly applied,particularly in the area of the common agricultural policy, and facili-tatesfraudulent operations ;
Whereas it is therefore necessary to adopt common rules on mutual
assistance for recovery;
Whereas these rules must apply both to the recovery of claims resulting
from the various measures which form part of the system of total or
partial financing of the European Agricultural Guidance and GuaranteeFund and to the recovery of agricultural leviesand cus tomsdutieswithin the meaning of Article 2 of Decision 70/243/ECSC, EEC,Euratom of 21 April 1970 on the replacement of financial contributions
from Member States by the Communities' own resources(
5), and of
Article 128 of the Act of Accession; whereas they must also apply tothe recovery of interest and costs incidental to such claims;
Whereas mutual assistance must consist of the following: the requested
authority must on the one hand supply the applicant authority with theinformation which the latter needsin order to recover claimsaris ing inthe Member State in which it iss ituated and notify the debtor of all
instruments relating to such claims emanating from that Member State,
and on the other hand it must recover, at the request of the applicantauthority, the claimsaris ing in the Member State in which the latter issituated;
Whereas these different forms of assistance must be afforded by the
requested authority in compliance with the laws, regulations and1976L0308 — EN — 01.01.1995 — 005.001 — 2
(1) OJ No L 94, 28. 4. 1970, p. 13.
(2) OJ No L 295, 30. 12. 1972, p. 1.
(3) OJ No C 19, 12. 4. 1973, p. 38.
(4) OJ No C 69, 28. 8. 1973, p. 3.
(5) OJ No L 94, 28. 4. 1970, p. 19.▼M2
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administrative provisions governing such matters in the Member State
in which it iss ituated;
Whereas it is necessary to lay down the conditions in accordance with
which requests for assistance must be drawn up by the applicantauthority and to give a limitative definition of the particular circum-
stances in which the requested authority may refuse assistance in any
given case;
Whereaswhen the reques ted authority isrequired to act on behalf of
the applicant authority to recover a claim, it must be able, if the provi-
sions in force in the Member State in which it is situated so permit andwith the agreement of the applicant authority, to allow the debtor timeto pay or authorize payment by instalment; whereas any interestcharged on such payment facilities must also be remitted to theMember State in which the applicant authority iss ituated;
Whereas, upon a reasoned request from the applicant authority, the
requested authority must also be able, in so far as the provisions in
force in the Member State in which it is situated so permit, to take
precautionary measures to guarantee the recovery of claims arising inthe applicant Member State; whereas such claims must not howeverbe given any preferential treatment in the Member State in which therequested authority is situated;
Whereas it is possible that during the recovery procedure in the
Member State in which the requested authority is situated the claim orthe instrument authorizing its enforcement issued in the Member Statein which the applicant authority is situated may be contested by the
person concerned; whereas it should be laid down in such cases that
the person concerned must bring the action contesting the claim beforethe competent body of the Member State in which the applicantauthority is situated and that the requested authority must suspend anyenforcement proceedingswhich it hasbegun until a decis ion istaken
by the aforementioned body;
Whereasit s hould be laid down that documentsand information
communicated in the course of mutual assistance for recovery may
not be used for other purposes;
Whereas this Directive should not curtail mutual assistance between
particular Member Statesunder bilateral or multilateral agreementsor
arrangements;
Whereas it is necessary to ensure that mutual assistance functions
smoothly and to this end to lay down a Community procedure for
determining the detailed rules for the application of such assistance
within an appropriate period; whereas it is necessary to set up acommittee to organize close and effective collaboration between theMember States and the Commission in this area,
HAS ADOPTED THIS DIRECTIVE:
Article 1
ThisDirective laysdown the rulesto be incorporated into the laws ,
regulations and administrative provisions of the Member States toensure the recovery in each Member State of the claims referred to in
Article 2 which arise in another Member State.
Article 2
ThisDirective s hall apply to all claimsrelating to:
(a) refunds, interventions and other measures forming part of the
system of total or partial financing of the European Agricultural
Guidance and Guarantee Fund, including sums to be collected inconnection with these actions;
(b) agricultural levies, within the meaning of Article 2 (a) of Decision
70/243/ECSC, EEC, Euratom and Article 128 (a) of the Act ofAccession;1976L0308 — EN — 01.01.1995 — 005.001 — 3
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(c) customs duties, within the meaning of Article 2 (b) of the said
Decision and Article 128 (b) of the Act of Accession;
(d) value added tax;
(e) the following excise duties:
— excise duty on manufactured tobacco,
— excise duty on alcohol and alcoholic beverages,— excise duty on mineral oils;
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M2►M3(f)◄◄ interest and costs incidental to the recovery of
the claimsreferred to above.
Article 3
In thisDirective:
— ‘applicant authority’ meansthe competent authority of a Member
State which makes a request for assistance concerning a claim
referred to in Article 2;
— ‘requested authority’ means the competent authority of a Member
State to which a request for assistance is made.
Article 4
1. At the request of the applicant authority, the requested authority
shall provide any information which would be useful to the applicantauthority in the recovery of itsclaim.
In order to obtain this information, the requested authority shall make
use of the powers provided under the laws, regulations or administra-
tive provisions applying to the recovery of similar claims arising in
the Member State where that authority iss ituated.
2. The request for information shall indicate the name and address
of the person to whom the information to be provided relates and the
nature and amount of the claim in respect of which the request is made.
3. The requested authority shall not be obliged to supply informa-
tion:
(a) which it would not be able to obtain for the purpose of recovering
similar claims arising in the Member State in which it is situated;
(b) which would disclose any commercial, industrial or professional
secrets; or
(c) the disclosure of which would be liable to prejudice the security of
or be contrary to the public policy of the State.
4. The requested authority shall inform the applicant authority of the
grounds for refusing a request for information.
Article 5
1. The requested authority shall, at the request of the applicant
authority, and in accordance with the rulesof law in force for the noti-fication of similar instruments or decisions in the Member State inwhich the requested authority is situated, notify to the addressee allinstruments and decisions, including those of a judicial nature, which
emanate from the Member State in which the applicant authority is
situated and which relate to a claim and/or to its recovery.
2. The request for notification shall indicate the name and address of
the addressee concerned, the nature and the subject of the instrument ordecision to be notified, if necessary the name and address of the debtor
and the claim to which the instrument or decision relates, and any other
useful information.
3. The requested authority shall promptly inform the applicant
authority of the action taken on itsreques t for notification and, more1976L0308 — EN — 01.01.1995 — 005.001 — 4
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especially, of the date on which the instrument or decision was
forwarded to the addressee.
Article 6
1. At the request of the applicant authority, the requested authority
shall, in accordance with the laws, regulations or administrative provi-
sions applying to the recovery of similar claims arising in the MemberState in which the requested authority is situated, recover claims whichare the subject of an instrument permitting their enforcement.
2. For this purpose any claim in respect of which a request for
recovery hasbeen made s hall be treated asa claim of the Member
State in which the requested authority is situated, except where Article12 applies.
Article 7
1. The request for recovery of a claim which the applicant authority
addresses to the requested authority must be accompanied by an offi-cial or certified copy of the instrument permitting its enforcement,
issued in the Member State in which the applicant authority is situated
and, if appropriate, by the original or a certified copy of other docu-ments necessary for recovery.
2. The applicant authority may not make a request for recovery
unless:
(a) the claim and/or the instrument permitting its enforcement are not
contested in the Member State in which it is situated;
(b) it has, in the Member State in which it is situated, applied the
recovery procedure available to it on the basis of the instrument
referred to in paragraph 1, and the measures taken have not
resulted in the payment in full of the claim.
3. The request for recovery shall indicate the name and address of
the person concerned, the nature of the claim, the amount of the prin-cipal and the interest and costs due, as well as any other relevant
information.
4. The request for recovery shall contain in addition a statement by
the applicant authority indicating the date from which enforcement ispossible under the laws in force in the Member State in which it is situ-ated and confirming that the conditionss et out in paragraph 2 arefulfilled.
5. Ass oon asany relevant information relating to the matter which
gave rise to the request for recovery comes to the knowledge of theapplicant authority it shall forward it to the requested authority.
Article 8
The instrument permitting enforcement of the claim shall, where appro-
priate, and in accordance with the provisions in force in the MemberState in which the requested authority is situated, be accepted, recog-
nized, supplemented, or replaced by an instrument authorizing
enforcement in the territory of that Member State.
Such acceptance, recognition, supplementing or replacement must take
place as soon as possible following the date of receipt of the requestfor recovery. They may not be refused if the instrument permitting
enforcement in the Member State in which the applicant authority is
situated is properly drawn up.
If any of these formalities should give rise to an examination or
contestation in connection with the claim and/or the instrument permit-ting enforcement issued by the applicant authority, Article 12 shallapply.1976L0308 — EN — 01.01.1995 — 005.001 — 5
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Article 9
1. Claimss hall be recovered in the currency of the Member State in
which the requested authority is situated.
2. The requested authority may, where the laws, regulations or
administrative provisions in force in the Member State in which it issituated so permit, and after consultations with the applicant authority,allow the debtor time to pay or authorize payment by instalment. Any
interest charged by the requested authority in respect of such extra time
to pay shall be remitted to the Member State in which the applicantauthority iss ituated.
Any other interest charged for late payment under the laws, regulations
and administrative provisions in force in the Member State in which
the requested authority is situated shall also be remitted to the MemberState in which the applicant authority iss ituated.
Article 10
The claimsto be recovered s hall not be given preferential treatment in
the Member State in which the requested authority is situated.
Article 11
The requested authority shall inform the applicant authority immedi-
ately of the action it hastaken on the reques t for recovery.
Article 12
1. If, in the course of the recovery procedure, the claim and/or the
instrument permitting its enforcement issued in the Member State inwhich the applicant authority is situated are contested by an interestedparty, the action shall be brought by the latter before the competentbody of the Member State in which the applicant authority iss ituated,
in accordance with the lawsin force there. Thisaction mus t be notified
by the applicant authority to the requested authority. The partyconcerned may also notify the requested authority of the action.
2. As soon as the requested authority has received the notification
referred to in paragraph 1 either from the applicant authority or from
the interested party, it shall suspend the enforcement procedure pending
the decision of the body competent in the matter. Should the requestedauthority deem it necessary, and without prejudice to Article 13, thatauthority may take precautionary measures to guarantee recovery in sofar asthe lawsor regulationsin force in the Member State in which it
is situated allow such action for similar claims.
3. Where it isthe enforcement meas urestaken in the Member State
in which the requested authority is situated that are being contested theaction shall be brought before the competent body of that MemberState in accordance with itslawsand regulations .
4. Where the competent body before which the action hasbeen
brought in accordance with paragraph 1 isa judicial or adminis trativetribunal, the decision of that tribunal, in so far as it is favourable to theapplicant authority and permitsrecovery of the claim in the MemberState in which the applicant authority is situated shall constitute the
‘instrument permitting enforcement’ within the meaning of Articles 6,
7 and 8 and the recovery of the claim shall proceed on the basis of thatdecision.
Article 13
On a reasoned request by the applicant authority, the requested
authority shall take precautionary measures to ensure recovery of a
claim in so far as the laws or regulations in force in the Member Statein which it is situated so permit.
In order to give effect to the provisions of the first paragraph, Articles
6, 7 (1), (3) and (5), 8, 11, 12 and 14 shall apply mutatis mutandis .1976L0308 — EN — 01.01.1995 — 005.001 — 6
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Article 14
The requested authority shall not be obliged:
(a) to grant the assistance provided for in Articles 6 to 13 if recovery
of the claim would, because of the situation of the debtor, createserious economic or social difficulties in the Member State inwhich that authority iss ituated;
(b) to undertake recovery of a claim if the applicant authority hasnot
exhausted the means of recovery in the territory of the Member
State in which it iss ituated.
The requested authority shall inform the applicant authority of the
grounds for refusing a request for assistance. Such reasoned refusalshall also be communicated to the Commission.
Article 15
1. Questions concerning periods of limitation shall be governed
solely by the laws in force in the Member State in which the applicantauthority iss ituated.
2. Stepstaken in the recovery of claimsby the reques ted authority
in pursuance of a request for assistance, which, if they had been carriedout by the applicant authority, would have had the effect of suspendingor interrupting the period of limitation according to the lawsin force inthe Member State in which the applicant authority is situated, shall bedeemed to have been taken in the latter State, in so far as that effect is
concerned.
Article 16
Documents and information sent to the requested authority pursuant to
thisDirective may only be communicated by the latter to:
(a) the person mentioned in the request for assistance;
(b) those persons and authorities responsible for the recovery of the
claims, and solely for that purpose;
(c) the judicial authoritiesdealing with mattersconcerning the
recovery of the claims.
Article 17
Requests for assistance and relevant documents shall be accompanied
by a translation in the official language, or one of the officiallanguages of the Member State in which the requested authority is situ-
ated, without prejudice to the latter authority'sright to waive the
translation.
Article 18
Member Statess hall renounce all claimsupon each other for the reim-
bursement of costs resulting from mutual assistance which they grant
each other pursuant to this Directive.
However, the Member State in which the applicant authority iss ituated
shall remain liable to the Member State in which the requestedauthority is situated for costs incurred as a result of actions held to be
unfounded, as far as either the substance of the claim or the validity of
the instrument issued by the applicant authority are concerned.
Article 19
Member States shall provide each other with a list of authorities
authorized to make or receive requests for assistance.
Article 20
1. A Committee on Recovery (hereinafter called ‘the committee’) is
hereby set up and shall consist of representatives of the Member Stateswith a Commission representative as chairman.1976L0308 — EN — 01.01.1995 — 005.001 — 7
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2. The committee shall adopt its own rules of procedure.
Article 21
The committee may examine any matter concerning the application of
thisDirective rais ed by itschairman either on hisown initiative or atthe request of the representative of a Member State.
Article 22
1. The detailed rulesfor implementing Articles4 (2) and (4), 5 (2)
and (3), 7 (1), (3) and (5), 9, 11 and 12 (1) and the ruleson convers ion,
transfer of sums recovered, and the fixing of a minimum amount for
claims which may give rise to a request for assistance, shall be adoptedin accordance with the procedure laid down in paragraph 2 and 3.
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A3The Commission representative shall submit to the
Committee a draft of the measures to be adopted.The Committee shalldeliver itsopinion on the draft within a time s et by the Chairman,
having regard to the urgency of the matter. Opinionss hall be adopted
by a majority of 62 votes, the votes of the Member States beingweighted asprovided in Article 148 (2) of the Treaty. The Chairmanshall not vote. ◄
3. (a) The commission shall adopt the proposed measures where they
are in accordance with the opinion of the committee.
(b) Where the proposed measures are not in accordance with the
opinion of the committee, or if no opinion isdelivered, theCommission shall without delay propose to the Council themeasures to be adopted. The Council shall act by a qualifiedmajority.
(c) If within three months of the proposal being submitted to it, the
Council has not acted, the proposed measures shall be adoptedby the Commission.
Article 23
The provisions of this Directive shall not prevent a greater measure of
mutual assistance being afforded either now or in the future by parti-cular Member Statesunder any agreementsor arrangements , including
those for the notification of legal or extralegal acts.
Article 24
Member States shall bring into force the measures necessary to comply
with thisDirective not later than 1 January 1978.
Article 25
Each Member State shall inform the Commission of the measures
which it has adopted to implement this Directive. The Commission
shall forward this information to the other Member States.
Article 26
This Directive is addressed to the Member States.1976L0308 — EN — 01.01.1995 — 005.001 — 8