amending Regulation (EU) No 389/2012 as regards the exchange of information maintained in the electronic registers concerning economic operators who move excise goods between Member States for commercial purposes

The proposal is based on Article 113 of the Treaty on the Functioning of the European Union (TFEU). This article provides for the Council, acting unanimously in accordance with the special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, to adopt provisions for the harmonisation of Member States' rules in the area of indirect taxation.

This proposal is further linked to Council Directive (EU) 2020/262 as Delegated Regulation (EU) .../...[OP please insert publication number], which will replace Commission Regulation (EC) No 684/2009, is pursuant to Council Directive (EU) 2020/262.

The objective of this proposal is to widen the scope of Articles 15, 19 and 20 of Council Regulation EU (No) 389/2012 in order for Member States to exchange information concerning all economic operators and not only those who are engaged in the movement of excise goods under duty suspension arrangements.

The proposal is linked to Council Directive (EU) 2020/262, which defines the movements of excise goods that have been released for consumption in the territory of one Member State and are moved to the territory of another Member State in order to be delivered there for commercial purposes.

Also, this proposal, shall replace references to a regulation which will be repealed. More specifically, Council Regulation (EU) No 389/2012 refers to Commission Regulation (EC) No 684/2009. That regulation will be repealed as from 13/2/2023 and replaced by Commission Delegated Regulation (EU) .../...[OP please insert publication number of the Regulation mentioned in the footnote]. With this proposal the reference of the previous regulation will be replaced with the reference of the new one.

This alignment will further complete the digitalisation of the monitoring of movements of excise goods released for consumption in the territory of one Member State and moved to the territory of another Member State in order to be delivered there for commercial purposes and improve the fight against tax fraud.

With this proposal, the Member States shall align the procedure of exchanging the data of economic operators moving goods under Duty Suspension with the exchange of data of the economic operators moving goods under Duty Paid. .

On the basis of Article 19 of Council Regulation (EU) No 389/2012, as from 13/2/2023, Member States will maintain in the same electronic database registers the data of the economic operators who are engaged in the Duty Paid movements. These economic operators are defined in Council Directive 2020/262 as certified consignors and certified consignees.

Council Regulation (EU) No 389/2012 lays down the legal basis for administrative cooperation between Member States. Each Member State maintains an electronic database containing registers with the data of the economic operators engaged in the movement of excise goods. Within the context of administrative cooperation, the Member States exchange the data included in these registers with a central register operated by the Commission only as regards the economic operators moving goods under Duty Suspension.

Under Chapter V of Council Directive 2020/262, as from 13 February 2023 Duty Paid movements shall be monitored by the computerised system. Specific economic operator types for Duty Paid movements were created and defined in Council Directive 2020/262.

Intra-EU commercial movements of excise goods may be performed under suspension of excise duty (hereinafter, ‘Duty Suspension’) or after they are released for consumption in the territory of one Member State and then moved to the territory of another Member State in order to be delivered for commercial purposes (hereinafter, ‘Duty Paid’). Currently only movements under Duty Suspension are monitored by the computerised system referred to in Article 1 of Decision (EU) 2020/263 of the European Parliament and of the Council. For these movements, economic operator types are created and defined in Council Directive 2008/118/EC.

This proposal respects the fundamental rights, particularly the right to privacy though the existing provision on data protection contained in Regulation (EU) No 389/2012

The impact assessment was prepared for the recast of Directive 2008/118/EC. Council Directive 2008/118/EC setting out general arrangements for goods subject to excise duty, after being substantially amended several times, in the interests of clarity, was repealed by Council Directive (EU) 2020/262. The proposal for the recast was accompanied by an impact assessment on Council Directive 2008/118/EC focusing on certain areas, one of which was the automation of intra-EU movements of excise goods released for consumption. Council Directive (EU) 2020/262 addresses the computerisation of movements of excise goods released for consumption, not provided for in Directive 2008/118/EC.

The objective of the proposal is to introduce the obligations of Member States regarding the exchange of the data of economic operators moving goods under Chapter V, section 2 of Directive (EU) 2020/262 maintained in the national registers with the central register. In the absence of this proposal the full exchange of information will not be possible, negatively impacting the administrative burden on economic operators, the risk of fraud and the administrative cooperation between the competent authorities of the Member States.

This proposal complies with the principles of proportionality as set out in Article 5, paragraph 4 of the Treaty on the European Union.

The proposed amendment does not go beyond what is necessary to address the issues at stake and, in that way, to achieve the Treaty's objectives of a proper and effective functioning of the Internal Market.

The objectives of the proposal cannot be achieved by the Member States and can be better achieved at European Union level. Council Regulation EU (No) 389/2012 provides harmonised rules as regards the exchange of data for the smooth operation of the movements of excise goods between the Member States, in the absence of which the Member States would possible set them bilaterally with variations from one Member State to another. This proposal extends the application of the existing procedures of data exchange to the economic operators engaged in the movement of excise goods which have been released for consumption in the territory of one Member State and are moved to the territory of another Member State in order to be delivered there for commercial purposes.

The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the European Union.

The proposal extends the scope of Article 15(1)(d) of Regulation (EU) No 389/2012 setting out the obligation of Member States to exchange necessary information where the total destruction or irretrievable loss in movements excise goods under a duty suspension arrangement has occurred to the movements of excise goods released for consumption in the territory of one Member State and are moved to the territory of another Member State in order to be delivered there for commercial purposes. Commission Regulation (EC) No 684/2009 will be repealed and replaced by Delegated Regulation (EU) .../....[OP please insert publication number]. The proposal replaces the reference to Annex II, code list 11 of Commission Regulation (EC) No 684/2009 in Article 19(2)(c) of this regulation with the reference to Annex II, code list 10 of Delegated Regulation (EU) .../....[OP please insert publication number]. The proposal extends the scope of the first paragraph of Article 19 (4) of Regulation (EU) No 389/2012, as regards the obligation of Member States to exchange via a central register the information contained in the respective national registers concerning economic operators engaged in moving excise goods under duty suspension arrangements between Member States, to the movements of excise goods released for consumption in the territory of one Member State and moved to the territory of another Member State in order to be delivered there for commercial purposes. The first sentence of Article 20 (1) of Regulation (EU) No 389/2012 refers to the possibility to validate electronically the excise registration numbers of economic operators engaged in the movement of excise goods under duty suspension arrangement. The proposal extends its scope so that this option applies to the excise registration numbers of economic operators moving excise goods released for consumption in the territory of one Member State and moved to the territory of another Member State in order to be delivered there for commercial purposes.

2022/0331 (CNS)

Proposal for a

COUNCIL REGULATION

amending Regulation (EU) No 389/2012 as regards the exchange of information maintained in the electronic registers concerning economic operators who move excise goods between Member States for commercial purposes

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 113 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the European Economic and Social Committee,

Acting in accordance with a special legislative procedure,

Whereas:

(1)Article 36 of Council Directive (EU) 2020/262 provides that the movement of excise goods which have been released for consumption in the territory of one Member State and are moved to the territory of another Member State in order to be delivered there for commercial purposes, is to take place under cover of an electronic simplified administrative document. That Article thus extends the use of the computerised system under Decision (EU) 2020/263 of the European Parliament and of the Council for monitoring the movement of excise goods, which is used to monitor movements of excise goods under duty suspension arrangements, to the monitoring of excise goods released for consumption in the territory of one Member State and then moved to the territory of another Member State in order to be delivered for commercial purposes. That extension of the use of the computerised system will start to apply as of 13 February 2023.

(2)In order to reflect that extension of the use of the computerised system, it is necessary to extend the scope of Article 15(1), point (d), Article 19(4), first subparagraph, and Article 20(1) of Regulation (EU) No 389/2012 to all excise goods concerned, irrespective of whether a duty suspension arrangement has occurred.

(3)Article 19(2), point (c), of Regulation (EU) No 389/2012 requires Member States to maintain in the electronic registers the excise product category (CAT) and/or the excise product code (EPC) of the products covered by the authorisation referred to in code list 11 of Annex II to Commission Regulation (EC) No 684/2009. However, as from 13 February 2023, Commission Regulation (EC) No 684/2009 will be replaced by Commission Delegated Regulation (EU)…/…[OJ Please insert the publication number of the Regulation mentioned in the footnote]. For reasons of clarity, it is appropriate to reflect that replacement in Article 19(2), point (c), of Regulation (EU) No 389/2012.

(4)Since the objective of this Regulation is to provide for the exchange of the information, which each Member State maintains in the electronic register concerning the economic operators moving goods released for consumption in the territory of one Member State and then moved to the territory of another Member State in order to be delivered there for commercial purposes, it cannot be sufficiently achieved by the Member States but can rather, by reason of the scale of the action, namely ensuring the harmonised functioning of the computerised system across Member States, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.