Commission Recommendation

of 29 November 2000

setting out guidelines for the authorisation of warehousekeepers under Council Directive 92/12/EEC in relation to products subject to excise duty

(notified under document number C(2000) 3355)

(2000/789/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in particular the second indent of Article 211 thereof,

Whereas:

(1) Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products(1), as last amended by Directive 2000/47/EC(2), requires warehouses and warehousekeepers handling manufactured tobacco, alcohol, alcoholic beverages and mineral oils to be authorised by the Member States.

(2) The report of the High Level Group on fraud in the tobacco and alcohol sectors, which was endorsed by the Directors-General of Customs and of Indirect Taxation on 24 April 1998, contains recommendations on tackling fraud.

(3) The Commission, in its communication to the Council on efforts to tackle fraud in the field of excise duties, fully endorses the High Level Group's analysis of the causes of the problem and agrees with the recommendations of the Group(3).

(4) The Ecofin Council endorsed the management summary of the High Level Group's report on 19 May 1998 and gave a political commitment to tackle fraud.

(5) The Group's work showed that Member States used differing criteria for granting or withdrawing authorisation as warehousekeeper.

(6) According to point (a) of Article 13 of Directive 92/12/EEC, national authorities must obtain a guarantee from the authorised warehousekeeper to cover the risk inherent in the intra-Community movement of goods.

(7) According to point (a) of Article 13 of Directive 92/12/EEC, national authorities may require authorised warehousekeepers to provide a guarantee to cover the risk inherent in the production, processing and holding of goods.

(8) According to point (a) of the second subparagraph of Article 16(2) of Directive 92/12/EEC, national authorities must obtain a guarantee from registered traders.

(9) Member States should be free to determine how guarantees are provided.

(10) According to Article 15a(1) of Directive 92/12/EEC, Member States have to maintain an electronic database of authorised warehousekeepers or traders registered for excise purposes, and premises authorised as tax warehouses.

(11) The High Level Group recommended that the Commission and the Member States should consider common principles for the authorisation of warehouses and warehousekeepers.

(12) A Fiscalis seminar was held in Luxembourg at the beginning of October 1998 to establish a guide for granting and withdrawing warehousekeepers' authorisations and for controlling goods in warehouses.

(13) Discussions have taken place at the meetings of the Excise Committee, and Member States have been invited to make proposals concerning the content of provisions.

(14) In order to ensure more uniform procedures for granting and withdrawing authorisation, the representatives of the Member States in the Excise Committee have unanimously agreed on the provisions contained in this Recommendation,

HEREBY RECOMMENDS:

SCOPE

Article 1

1. Member States are invited to apply the provisions of this Recommendation when authorising a natural or legal person keeping a warehouse:

(a) to produce, process, hold, receive and dispatch products subject to excise duty in the course of his business, excise duty being suspended;

(b) to receive, hold and dispatch products subject to excise duty under suspension of the duty.

2. This Recommendation should also be broadly applicable when authorising a registered trader, namely a natural or legal person without authorised-warehousekeeper status, to receive, in the course of his business, products subject to excise duty from another Member State under duty suspension arrangements.

CRITERIA FOR GRANTING AUTHORISATION

Article 2

1. Although Member States are invited to apply strict criteria when granting authorisation to the persons specified in Article 1, a balance should be achieved between facilitating trade and exercising effective control.

2. For the purposes of reaching an informed decision and evaluating the potential risk to revenue of granting authorisation, the following information should be obtained from the applicant, prior to authorisation:

- the applicant's name and address,

- the type of activity,

- a plan of the premises and their location and a description of the activity and the plant,

- a written application supported by commercial records and company register information,

- the VAT number,

- an extract of the registration in the commercial register or an equivalent database, where such registration is required by the Member State concerned,

- the names of the company's officers, their position and their powers in the company,

- details of the company's accounting system, internal control measures and methods of audit,

- details of the company's financial position, its revenue history and its compliance with other fiscal obligations (customs, VAT, direct taxation),

- the level of storage, estimate of goods to be produced, held or moved in a given period,

- details of past and present warehousekeeping authorisations held by the applicant in other Member States.

That information may be obtained by means of a special application form.

3. Member States may request intending warehousekeepers to provide a list of the Member States to which they plan to dispatch excise goods under excise duty suspension arrangements. This list may be freely transmitted to the Member States of destination concerned.

Article 3

1. In order to form a clear view of the existence and structure of the premises and the warehouse, Member States may carry out a pre-authorisation visit. Member States should obtain, where possible, a detailed plan of the proposed warehouse for facilitating checks and audits, especially in the case of larger premises, and for defining clearly the boundaries of the duty-suspended area.

2. Adequate stock control measures by both the authorised persons and national administrations should be an important element of any warehousing system. It is also important to check the origin of excise products and the entire production process from the receipt of raw materials up to the dispatch of the finished product. This may involve coding and marking products.

INFORMATION TO BE PROVIDED TO THOSE APPLYING FOR AUTHORISATION

Article 4

1. Member States are invited to inform the applicant warehousekeepers and registered traders about national obligations in the matter of bookkeeping in order to provide a clear audit trail of all products received, manufactured, processed, held and dispatched.

2. Applicant warehousekeepers should be informed of the need to reveal in their bookkeeping all information necessary for the correct operation and control of the tax warehouse. Depending on the legislation of the Member States, these include in particular:

- raw material stock sheets,

- manufacturing register,

- stock sheets for all products,

- sheets for received and dispatched goods.

3. In particular, the information contained in the warehousekeeper's books should include a description of the goods, their tax category, a reference to the accompanying administrative document (AAD) as described in Regulation (EEC) No 2719/92(4) (national number of the AAD, the date of departure of the goods and a note of the date on which the third copy is received by the consignor for discharge).

4. Stock records, profit and loss accounts, balance sheets and audit reports should be available to the competent authorities.

5. Occasional checks to follow up the activity of the company should be carried out by the competent authorities of the Member States.

Article 5

The Member States are invited to inform warehousekeepers of their obligations concerning the application of national excise legislation, and especially:

- the obligation to provide the competent authorities with the information necessary for the operation of the excise early-warning system,

- the obligation to use an AAD for all intra-Community and export consignments and to complete that document accurately before goods are dispatched,

- the obligation to use the national numbering system for the AAD,

- the obligation to specify the time intended for the journey and, if required, details of a reasonable route.

GUARANTEES

Article 6

1. The amount of the guarantee should reflect the risk inherent in the activities of the warehousekeeper or the registered trader.

2. The amount of the guarantee should be regularly reviewed to reflect any changes in the volume of trade, the activities of the warehousekeeper or the rates of excise duties applicable in the Member States.

CANCELLATION OR WITHDRAWAL OF AN AUTHORISATION

Article 7

1. An authorisation should in principle only be cancelled or withdrawn on serious grounds, and after a Member State's competent authorities have carefully examined the warehousekeeper's situation.

2. An authorisation may, for instance, be cancelled or withdrawn in the following cases:

- non-fulfilment of the obligations inherent in the authorisation,

- insufficient cover for the requisite guarantee,

- repeated non-compliance with the legal provisions in force,

- involvement in criminal activities,

- tax evasion or fraud.

MISCELLANEOUS

Article 8

1. The regular updates of the electronic database (SEED: system for exchange of excise data), provided in Article 15a(1) of Directive 92/12/EEC should include any new authorisations granted or modifications in the data contained, such as an expansion in activities, change of address or withdrawal of the authorisation.

2. If national legislation so permits, information on applicants who already have a trading history in one Member State may be disclosed at the request of another.

3. The Member States are invited to take appropriate measures to control the production, processing, holding, receipt and dispatch of goods at warehouses and movements of excisable goods under the excise-duty suspension arrangements. If necessary, Member States may assist each other in performing these tasks in accordance with the provisions on administrative cooperation and mutual assistance.

FINAL PROVISIONS

Article 9

Member States are invited to communicate to the Commission by 31 December 2001 the texts of the main laws, regulations and administrative provisions adopted pursuant to this Recommendation, and to notify the Commission of any subsequent changes thereto.

Article 10

This Recommendation is addressed to the Member States.

Done at Brussels, 29 November 2000.

For the Commission

Frederik Bolkestein

Member of the Commission

(1) OJ L 76, 23.3.1992, p. 1.

(2) OJ L 197, 29.7.2000, p. 73.

(3) SEC(1998) 732 final, 29.4.1998.

(4) OJ L 276, 19.9.1992, p. 1.