Proposal for a Council Regulation (Euratom, ECSC, EC) determining the powers and obligations of agents authorized by the Commission pursuant to Article 18 (2) and (3) of Regulation (EEC, Euratom) No 1552/89 (97/C 95/06) COM(96) 717 final - 96/0016(CNS)

(Submitted by the Commission on 10 January 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 78h thereof,

Having regard to the Treaty establishing the European Community, and in particular Article 209 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 183 thereof,

Having regard to Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the Communities' own resources (1), and in particular Article 8 (2) thereof,

Having regard to Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (2), as amended by Council Regulation (Euratom, EC), No 1355/96 of 8 July 1996 (3), and in particular Article 18 thereof,

Having regard to the Commission's proposal,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Court of Auditors,

Whereas Article 18 (1) of Regulation (EEC, Euratom) No 1552/89 requires Member States to conduct the checks and enquiries concerning the establishment and making available of the own resources referred to in Article 2 (1) (a) and (b) of Decision 94/728/EC, Euratom;

Whereas, on the basis of Article 18 (2) of that Regulation, Member States are required to associate the Commission, at its request, with these inspection measures; whereas this obligation covers inspection measures initiated by the Member States and additional inspections undertaken in response to a reasoned request from the Commission; whereas, on the basis of Article 18 (3), the Commission may itself carry out inspection measures on the spot;

Whereas Council Regulation (EEC, Euratom, ECSC) No 165/74 of 21 January 1974 (4) determined the powers and obligations of officials appointed by the Commission in connection with inspections; whereas this Regulation, which preceded Regulation (EEC, Euratom) No 1552/89, concerns only inspection measures carried out in association with the Member States; whereas Article 18 (3) of Regulation (EEC, Euratom) No 1552/89 introduces a new inspection procedure giving the Commission the power to carry out on-the-spot inspections on its own initiative;

Whereas the scope of Regulation (EEC, Euratom, ECSC) No 165/74 should therefore be extended to cover this new inspection procedure by laying down the arrangements for the conduct of on-the-spot and associated inspections and defining the conditions which authorized agents must observe in the performance of their task;

Whereas the inspection measures referred to in Article 18 (2) and (3) of Regulation (EEC, Euratom) No 1552/89 are without prejudice to inspections undertaken by Member States in accordance with their own provisions laid down by law, regulation or administrative action;

Whereas certain provisions of the Regulation also apply to inspections conducted by the Commission in the area of VAT own resources and inspections relating to GNP;

Whereas in view of the scale of the changes to be made, Regulation (EEC, Euratom, ECSC) No 165/74 should be replaced,

HAS ADOPTED THIS REGULATION:

Article 1

1. For the purposes of:

(a) inspection measures with which the Commission is associated, as provided for in the second indent of Article 18 (2) of Regulation (EEC, Euratom) No 1552/89;

(b) inspection measures carried out by the Commission itself on the spot, as provided for in Article 18 (3) of Regulation (EEC, Euratom) No 1552/89;

the Commission shall be represented by the officials or other servants whom it has specifically authorized for this purpose, hereinafter referred to as 'authorized agents`.

National experts seconded to the Commission may be present at such inspection measures.

2. The Commission may, with the agreement of the Member State concerned, request officers from other Member States to act as observers, and employ outside agencies, acting under its responsibility, to provide technical assistance.

The Commission shall ensure that these officers and agencies provide all the necessary assurances with respect to technical competence, independence and professional secrecy.

Article 2

1. Member States and the Commission shall maintain regular contacts to facilitate the implementation of the provisions referred to in Article 1.

2. Every inspection with which the Commission is associated or which it carries out itself on the spot shall be preceded by contacts between the Member State concerned and the Commission in order to lay down detailed procedures.

3. The Commission shall give its authorized agents written terms of reference for every such inspection, stating their identity and official capacity.

Article 3

1. The authorized agents:

(a) shall conduct themselves during all inspections in a manner compatible with the rules and usages prescribed for officials of the Member States concerned;

(b) shall be bound by professional secrecy, as laid down in Article 5;

(c) may have contact with taxable persons only through the officers responsible in the Member State where the inspections are carried out.

2. As regards the organization of work and, more generally, relations with the departments concerned, inspections with which the Commission is associated shall be under the direction of the department designated by the Member State pursuant to Article 4 (1).

3. Inspections which the Commission itself carries out on the spot shall be under the direction of its authorized agents; as regards the organization of work, relations with the departments concerned and, where necessary, with the taxable persons concerned, they shall establish appropriate contacts with the officers designated by the Member State concerned pursuant to Article 4 (2).

Article 4

1. The Member States shall ensure that the departments or agencies responsible for establishing, collecting and making available own resources and the authorities which they have instructed to carry out inspections in this respect afford the Commission's authorized agents every assistance necessary for carrying out their task.

2. In the case of inspections carried out by the Commission on the spot, the Member State in question shall inform the Commission in good time of the identity and official capacity of the officers it has designated to take part in the inspection and to provide the Commission's authorized agents with every assistance necessary for carrying out their task.

Article 5

1. All information gathered in the context of inspection measures covered by this Regulation shall be subject to professional secrecy. It may not be divulged to any persons except those in the institutions of the Community or of the Member States whose duty it is to know, nor used for purposes other than those laid down in Regulation (EEC, Euratom) No 1552/89, unless prior consent has been given by the Member State which originally provided the information.

2. This Article shall apply to all officials and servants of the Community.

Article 6

Save as otherwise provided in Article 5

1. The findings of inspections carried out shall be communicated to the Member State concerned through the appropriate channels within three months, and the Member State may submit its observations within three months of receiving them.

However, the Commission may, for duly substantiated reasons, request the Member State to submit its observations on specific points within one month of receiving the inspection findings. The Member State may decline to accede to the Commission's request, in which case it shall inform the Commission of its reasons.

2. On completion of the procedure laid down in paragraph 1, the findings and observations shall be made known to the other Member States within the Advisory Committee on the Communities' Own Resources.

Article 7

The provisions laid down in Articles 2 (2), 2 (3), 3 (1) (a), 3 (1) (b), 3 (3), 4 (1), 5 and 6 shall also apply to inspections carried out by officials or other servants of the Commission pursuant to Article 11 (1) of Regulation (EEC, Euratom) No 1553/89 and Article 19 of Regulation (EEC, Euratom) No 1552/89.

Article 8

Regulation (EEC, Euratom, ECSC) No 165/74 is repealed.

References to the repealed Regulation shall be construed as references to this Regulation.

Article 9

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

(1) OJ No L 293, 12. 11. 1994, p. 9.

(2) OJ No L 155, 7. 6. 1989, p. 1.

(3) OJ No L 175, 13. 7. 1996, p. 3.

(4) OJ No L 20, 24. 1. 1974, p. 1.