1976L0308 — EN — 28.12.1992 — 004.001 — 1
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►B ►M2►M3 COUNCIL DIRECTIVE
of 15 March 1976
on mutual assistance for the recovery of claims resulting from operations forming part of the
systemoffinancingtheEuropeanAgriculturalGuidanceandGuaranteeFund,andofagricultural
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
►M1 Council Directive 79/1071/EEC of 6 December 1979 L 331 10 27.12.1979
►M2 Council 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:
►A1 Act of Accession of Greece L 291 17 19.11.1979
►A2 Act of Accession of Spain and Portugal L 302 23 15.11.1985
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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 EuropeanAgricultural 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)
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), as last 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
authorities of another Member State;
Whereas the fact that national provisions relating to recovery are
applicable only within national territories is in itself an obstacle to theestablishment 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 facilitatesfraudulent 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 orpartial financing of the European Agricultural Guidance and GuaranteeFund and to the recovery of agricultural levies and customs duties within
the meaning of Article 2 of Decision 70/243/ECSC, EEC, Euratom of 21
April 1970 on the replacement of financial contributions from MemberStates by the Communities' own resources (
5), and of Article 128 of the
Act of Accession; whereas they must also apply to the recovery ofinterest 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 needs in order to recover claims arising inthe Member State in which it is situated and notify the debtor of allinstruments relating to such claims emanating from that Member State,
and on the other hand it must recover, at the request of the applicant
authority, the claims arising 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 — 28.12.1992 — 004.001 — 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 is situated;
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
circumstances in which the requested authority may refuse assistance
in any given case;
Whereas when the requested authority is required to act on behalf of the
applicant authority to recover a claim, it must be able, if the provisions
in force in the Member State in which it is situated so permit and withthe agreement of the applicant authority, to allow the debtor time to payor authorize payment by instalment; whereas any interest charged onsuch payment facilities must also be remitted to the Member State inwhich the applicant authority is situated;
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 however begiven 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 or theinstrument authorizing its enforcement issued in the Member State inwhich 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 before thecompetent body of the Member State in which the applicant authority issituated and that the requested authority must suspend any enforcementproceedings which it has begun until a decision is taken by the
aforementioned body;
Whereas it should be laid down that documents and 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 States under bilateral or multilateral agreements or
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
This Directive lays down the rules to be incorporated into the laws,
regulations and administrative provisions of the Member States to ensurethe recovery in each Member State of the claims referred to in Article 2
which arise in another Member State.
Article 2
This Directive shall apply to all claims relating 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 in connectionwith 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 — 28.12.1992 — 004.001 — 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 claims referred to above.
Article 3
In this Directive:
— ‘applicant authority’ means the competent authority of a Member
State which makes a request for assistance concerning a claimreferred 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 its claim.
In order to obtain this information, the requested authority shall make
use of the powers provided under the laws, regulations or administrativeprovisions applying to the recovery of similar claims arising in theMember State where that authority is situated.
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 information:
(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 rules of law in force for thenotification of similar instruments or decisions in the Member State inwhich the requested authority is situated, notify to the addressee all
instruments and decisions, including those of a judicial nature, which
emanate from the Member State in which the applicant authority issituated 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 or
decision to be notified, if necessary the name and address of the debtor
and the claim to which the instrument or decision relates, and any otheruseful information.
3. The requested authority shall promptly inform the applicant
authority of the action taken on its request for notification and, more1976L0308 — EN — 28.12.1992 — 004.001 — 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
provisions applying to the recovery of similar claims arising in theMember State in which the requested authority is situated, recoverclaims which are the subject of an instrument permitting theirenforcement.
2. For this purpose any claim in respect of which a request for
recovery has been made shall be treated as a claim of the Member Statein which the requested authority is situated, except where Article 12applies.
Article 7
1. The request for recovery of a claim which the applicant authority
addresses to the requested authority must be accompanied by an official
or certified copy of the instrument permitting its enforcement, issued in
the Member State in which the applicant authority is situated and, ifappropriate, by the original or a certified copy of other documentsnecessary 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 resultedin 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 principal
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 issituated and confirming that the conditions set out in paragraph 2 arefulfilled.
5. As soon as any 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
appropriate, and in accordance with the provisions in force in theMember State in which the requested authority is situated, be accepted,
recognized, 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 request forrecovery. 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 instrumentpermitting enforcement issued by the applicant authority, Article 12shall apply.1976L0308 — EN — 28.12.1992 — 004.001 — 5
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Article 9
1. Claims shall 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 is situated.
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 Member Statein which the applicant authority is situated.
Article 10
The claims to be recovered shall 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 immediately
of the action it has taken on the request 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 competent bodyof the Member State in which the applicant authority is situated, in
accordance with the laws in force there. This action must be notified by
the applicant authority to the requested authority. The party concernedmay 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 as the laws or regulations in force in the Member State in which it is
situated allow such action for similar claims.
3. Where it is the enforcement measures taken 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 Member Statein accordance with its laws and regulations.
4. Where the competent body before which the action has been
brought in accordance with paragraph 1 is a judicial or administrativetribunal, the decision of that tribunal, in so far as it is favourable to theapplicant authority and permits recovery 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 State in which it issituated 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 — 28.12.1992 — 004.001 — 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 in which
that authority is situated;
(b) to undertake recovery of a claim if the applicant authority has not
exhausted the means of recovery in the territory of the Member Statein which it is situated.
The requested authority shall inform the applicant authority of the
grounds for refusing a request for assistance. Such reasoned refusal shall
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 applicant
authority is situated.
2. Steps taken in the recovery of claims by the requested authority in
pursuance of a request for assistance, which, if they had been carried outby the applicant authority, would have had the effect of suspending orinterrupting the period of limitation according to the laws in force in theMember 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
this Directive 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 authorities dealing with matters concerning 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 official languages of
the Member State in which the requested authority is situated, without
prejudice to the latter authority's right to waive the translation.
Article 18
Member States shall renounce all claims upon each other for the
reimbursement of costs resulting from mutual assistance which they
grant each other pursuant to this Directive.
However, the Member State in which the applicant authority is situated
shall remain liable to the Member State in which the requested authorityis 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 theinstrument 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.
2. The committee shall adopt its own rules of procedure.1976L0308 — EN — 28.12.1992 — 004.001 — 7
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Article 21
The committee may examine any matter concerning the application of
this Directive raised by its chairman either on his own initiative or at the
request of the representative of a Member State.
Article 22
1. The detailed rules for implementing Articles 4 (2) and (4), 5 (2)
and (3), 7 (1), (3) and (5), 9, 11 and 12 (1) and the rules on conversion,
transfer of sums recovered, and the fixing of a minimum amount forclaims which may give rise to a request for assistance, shall be adoptedin accordance with the procedure laid down in paragraph 2 and 3.
2. The Commission representative shall submit to the committee a
draft of the measures to be adopted. The committee shall deliver itsopinion on the draft within a time limit set by the chairman, having
regard to the urgency of the matter. Opinions shall be adopted by a
majority of ►
A2fifty-four ◄votes, the votes of the Member States
being weighted as provided in Article 148 (2) of the Treaty. Thechairman shall 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 is delivered, theCommission shall without delay propose to the Council themeasures to be adopted. The Council shall act by a qualified
majority.
(c) If within three months of the proposal being submitted to it, the
Council has not acted, the proposed measures shall be adopted bythe 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 particular
Member States under any agreements or 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 this Directive 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 shallforward this information to the other Member States.
Article 26
This Directive is addressed to the Member States.1976L0308 — EN — 28.12.1992 — 004.001 — 8