OPINION No 2/97 concerning a 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 175/01)

THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,

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 European 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 last amended by Council Regulation (Euratom, EC) No 1355/96 of July 1996 (3);

Having regard to Council Regulation (EEC, Euratom) No 1553/89 of 29 May 1989 on the definitive uniform arrangements for the collection of own resources accruing from value added tax (4);

Having regard to Council Regulation (EEC, Euratom, ECSC) No 165/74 of 21 January 1974 determining the powers and obligations of agents authorized by the Commission pursuant to Article 14 (5) of Regulation (EEC, Euratom, ECSC) No 2/71 (5);

Having regard to the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities as last amended by Council Regulation No 2335/95 of 18 September 1995 (6), and in particular Article 85 thereof;

Having regard to the proposal for a Council Regulation, submitted by the Commission on 10 January 1997 (7);

Having regard to the Council Decision of 14 February 1997 to consult the Court of Auditors on that proposal;

Whereas the object of the proposal is to regulate the powers of agents authorized by the Commission,

HAS ADOPTED THE FOLLOWING OPINION:

1. Council Regulation (EEC, Euratom, ECSC) No 165/74 of 21 January 1974 determining the powers and obligations of agents authorized by the Commission has not been amended to take into account the extension of the Commission's powers of inspection, which has been part of Community legislation since 1989. Nevertheless, the successive amendments to Community Regulations concerning own resources necessitate the updating of the conditions implementing the new provisions of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989.

2. The proposal for a regulation repeals Council Regulation (EEC, Euratom, ECSC) No 165/74 of 21 January 1974. The Court proposes that the title of the new regulation should specifically refer to own resources generally, as they are all affected by the new regulation.

3. In particular, the proposal for a regulation lays down, within the framework of the new system of controls, the procedures which the Commission will follow during the on-the-spot inspections carried out by its authorized agents pursuant to Article 18 (3) of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989. Article 3 (3) sets out the procedure to be followed by the authorized agents as regards the organization of the work, relations with the departments concerned and, where necessary, with the taxable persons concerned by the inspections.

4. The Commission has also proposed extending the concept of authorized agent to include temporary staff, and adopting special provisions for national experts seconded to the Commission, for officers of other Member States and for outside agencies.

5. The Court notes that the extension of the concept of the authorized agent, or of the agent who may participate in the inspections, has been proposed by the Commission to provide for the necessity of having recourse, should the need arise, to specialist auditing skills. For the same reasons, the provisions relating to the presence of national experts seconded to the Commission, officers of other Member States and outside agencies should be equally applicable to traditional own resources and to own resources accruing from VAT and GNP. The Commission's proposal, by excluding the latter two categories, introduces an imbalance in the system of controls on own resources.

6. The Court would also like to draw attention to the fact that Article 8 of the proposal and Article 11 (2) of Regulation 1553/89, taken in combination, effectively make the proposal for a regulation applicable in its entirety to the VAT resource. This introduces a contradiction as far as application of the proposed regulation to the VAT resource is concerned, depending upon whether one refers to Article 7 or Article 8 of the proposed regulation.

7. In the attached table the Court has set out its amendment and comment relating to the Commission's proposal.

This opinion was adopted by the Court of Auditors in Luxembourg at the Court meeting of 24 April 1997.

For the Court of Auditors

BERNHARD FRIEDMANN

President

OPINION OF THE COURT OF AUDITORS CONCERNING THE PROPOSAL FOR A REGULATION RELATING TO THE POWERS AND OBLIGATIONS OF AGENTS AUTHORIZED BY THE COMMISSION

>TABLE>

(1) OJ L 293, 12. 11. 1994, p. 9.

(2) OJ L 155, 7. 6. 1989, p. 1.

(3) OJ L 175, 13. 7. 1996, p. 3.

(4) OJ L 155, 7. 6. 1989, p. 9.

(5) OJ L 20, 24. 1. 1974, p. 1.

(6) OJ L 240, 7. 10. 1995, p. 12.

(7) OJ C 95, 24. 3. 1997 (97/C 95/06) COM (96) 717 final - 96/0016/(CNS), p. 33.