Proposal for a Council Directive amending 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), Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils (2) and Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (3) (94/C 215/10) (Text with EEA relevance) COM(94) 179 final - 94/0155(CNS)

(Submitted by the Commission to the Council on 30 June 1994)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 99 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

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

Whereas it is necessary to exclude the territory of San Marino from the Community's tax territory in order to align the rules governing excise duties on the VAT rules currently in force, and in particular the Sixth VAT Directive (4);

Whereas it is necessary to exclude the customs procedure for exports from the excise-duty suspension arrangements in order to be able, under the movement arrangements applied for excise-duty purposes, to protect against the risks inherent in the movement of products from their place of dispatch to the office at the point of exit from the Community;

Whereas, when the dispatch of products subject to excise duty gives rise to a declaration placing those products under an internal transit procedure or under the TIR or ATA Convention procedure, it is necessary to establish that such declaration serves as the accompanying document for excise-duty purposes;

Whereas, when products subject to excise duty are released for consumption in a Member State and are intended to be moved to that same Member State via the territory of another Member State, it is necessary to use the simplified accompanying document as provided for in Commission Regulation (EEC) No 3649/92 (5);

Whereas it is necessary to indicate on the accompanying document any losses occurring in the course of intra-Community movement in order to ensure that that document is correctly discharged and to specify the forms and content of such annotation;

Whereas it is necessary to provide for an optional guarantee, in place of those currently in existence, to be provided by the transporter or owner of the products in order to limit the risks inherent in intra-Community movement;

Whereas it is necessary to provide for the possible waiving of the intra-Community movement guarantee for authorized warehousekeepers in the light of the mode of transport used or where a small amount of duty is involved;

Whereas it is necessary to lay down the conditions that the consignor of mineral oils must meet if he is not to complete the box relating to the consignee on the accompanying document where the latter is not known at the outset;

Whereas it is necessary to provide for the possibility of additional measures being adopted regarding spot checks in order to increase administrative cooperation between Member States;

Whereas it is necessary to permit the information shown on the copies of the accompanying document intended for the competent authorities of the Member States of departure and destination to be transmitted by computerized means;

Whereas it is necessary to provide for the return copy to be transmitted to the consignor by fax in order to ensure that the operation is duly and speedily concluded;

Whereas it is necessary, for products subject to excise duty moving regularly between tax warehouses located in two Member States, to simplify the procedure for discharging the accompanying document;

Whereas it is necessary to lay down the conditions under which the armed forces and other organizations may benefit from excise-duty exemption;

Whereas it is necessary to lay down specific provisions for exempting a number of products subject to excise duty and imported from third countries;

Whereas it is necessary to restrict the list of products considered to be mineral oils to those which are actually used currently as heating or motor fuel so as not to apply the movement arrangements provided for in Directive 92/12/EEC to products whose nature is such that they will never be used for those purposes;

Whereas it is necessary to clarify the term 'additive` and the concept of fuels from renewable resources;

Whereas it is necessary to clarify the scope of Article 4 (3) of Directive 92/81/EEC following the reduction in the coverage of the term 'mineral oil`;

Whereas it is necessary to grant compulsory exemption at Community level for mineral oils injected into blast furnaces for chemical reduction purposes in order to prevent distortions of competition arising from different taxation arrangements in Member States;

Whereas it is necessary to specify that mineral oils released for consumption in a Member State, contained in the fuel tanks of motor vehicles and intended to be used as fuel by such vehicles are exempt from excise duty in other Member States in order not to impede free movement of individuals and goods and in order to prevent double taxation;

Whereas it is necessary to update the CN codes relating to leaded and unleaded petrol in the light of the amendments made in the latest version of the Integrated Tariff of the European Communities (6);

Whereas, lastly, the amendments to the excise-duty application procedures provided for in this Directive for the purpose of ensuring the smooth functioning of the internal market cannot be made satisfactorily by the Member States individually and call, therefore, for approximation of the Member States' excise-duty legislation at Community level;

Whereas it is accordingly necessary to amend Directives 92/12/EEC, 92/81/EEC and 92/82/EEC,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 92/12/EEC, as last amended by Directive 92/108/EEC, is hereby amended as follows:

1. In Article 2 (4), the last indent is deleted.

2. Article 5 is amended as follows:

(a) The first indent of paragraph 2 is replaced by the following:

'- are coming from, or going to, third countries or territories referred to in Article 2 (1), (2) and (3) or the Channel Islands and are placed in a free zone or a free warehouse, are under a Community customs procedure other than release for free circulation and exportation or are under the procedure referred to in Article 163 of Council Regulation (EEC) No 2913/92,`

(b) In paragraph 2, the second indent is replaced by the following:

'- are dispatched between Member States via EFTA countries under the internal Community transit procedure, including the simplified internal Community transit procedures, or via one or more third countries under cover of a TIR or ATA carnet,`

(c) In paragraph 2, the first sentence of the second subparagraph is replaced by the following:

'In cases where the single administrative document is used:`

(d) A new paragraph 3 is added as follows:

'3. Any additional details that have to be shown on the transport or commercial documents serving as transit documents and the changes that have to be made to adapt the discharge procedure where goods subject to excise duty move under a simplified internal Community transit procedure as referred to in paragraph 2 above shall be established according to the procedure provided for in Article 24.`

3. In Article 7, the following paragraphs 7 and 8 are added:

'7. Where products subject to excise duty and already released for consumption in a Member State are to be moved to that Member State via the territory of another Member State, such movements shall take place under cover of the accompanying document referred to in paragraph 4 above.

8. In the cases referred to in paragraph 7:

(a) the consignor shall, before the goods are dispatched, make a declaration to the tax authorities of the place of departure responsible for carrying out excise-duty checks;

(b) the consignee shall attest to having received the goods in accordance with the rules laid down by the tax authorities of the place of destination responsible for carrying out excise-duty checks;

(c) the consignor and the consignee shall consent to any check enabling their respective tax authorities to satisfy themselves that the goods have actually been received.`

4. In Article 13, point (a) is replaced by the following:

'(a) provide a guarantee, if necessary, to cover production, processing and holding and a compulsory guarantee to cover movement, subject to Article 15 (3), the conditions for which shall be set by the competent authorities of the Member State in which the tax warehouse is authorized;`.

5. In Article 14, the following paragraph 4 is added:

'4. The abovementioned losses occurring under suspension arrangements shall, in all cases, be indicated by the competent authorities on the reverse of the copy to be returned to the consignor of the accompanying document referred to in Article 18 (1).

Such annotation may take the following forms:

- in the case of losses occurring during intra-Community transport of products subject to excise duty that are under duty-suspension arrangements, the competent authorities of the Member State in which those losses are established shall annotate the return copy of the accompanying document accordingly;

- on the arrival of the products in the Member State of destination, the competent authorities of that Member State shall indicate that they are granting an exemption in respect of all the losses established;

- on the arrival of the products in the Member State of destination, the competent authorities of that Member State shall indicate either that a partial exemption is being granted or that no exemption is being granted and shall specify the amounts of excise duty to be levied in accordance with paragraph 3 above. Those same authorities shall send a copy of the return copy of the accompanying document to the competent authorities of the Member State in which the losses were established.`

6. Article 15 is amended as follows:

(a) Paragraph 1 is replaced by the following:

'1. Without prejudice to Articles 5 (2), 16, 19 (4) and 23 (1a), the movement of products subject to excise duty under suspension arrangements shall take place between tax warehouses.

The first subparagraph shall apply to the intra-Community movement of products subject to excise duty at a zero rate which have not been released for consumption.`

(b) Paragraph 3 is replaced by the following

'3. The risks inherent in intra-Community movement shall be covered by the guarantee provided by the authorized warehousekeeper of dispatch, as provided for in Article 13, or, if need be, by a guarantee jointly and severally binding on both the consignor and the transporter. The competent authorities in the Member States may permit the transporter or the owner of the products to provide a guarantee in place of that provided by the authorized warehousekeeper of dispatch. If appropriate, Member States may require the consignee to provide a guarantee.

Member States may, in view of the nature of the products and the mode of transport used, relieve authorized warehousekeepers of dispatch of the obligation to provide the guarantee referred to in the first subparagraph above.

Member States may also relieve authorized warehousekeepers of dispatch of the obligation to provide a guarantee covering intra-Community movement of the products in question where the amount of excise duty to be guaranteed on departure or on arrival does not exceed ECU 500.

The detailed rules for the gurantee shall be laid down by the Member States. The guarantee shall be valid throughout the Community.`

(c) In the first and second sentences of paragraph 5, the word 'administrative` preceding the word 'document` is deleted;

(d) In paragraph 5, a second subparagraph is inserted as follows:

'In the case of intra-Community movement of mineral oils by sea or inland waterway, the authorized warehousekeeper of dispatch need not complete the box relating to the consignee on the accompanying document if, when the products are dispatched, the consignee is not definitively known, provided that:

- the competent authorities of the Member State of departure authorize the consignor in advance not to complete that box;

- the same authorities are notifed of the name and address of the consignee not later than 15 days following the date of dispatch of the products;

- the name and address of the consignee are immediately indicated on the accompanying document as soon as they are known.`

7. The following Article is inserted:

'Article 15b

1. With regard to the spot checks provided for in Article 19 (6), the competent authorities in the Member States may, on the basis of administrative cooperation, request information in addition to that set out in Article 15a.

2. Such information may be exchanged by means of a uniform control document. The form and content of that document shall be established in accordance with the procedure provided for in Article 24.`

8. In Article 18, a new paragraph 6 is added:

'6. This Article shall also apply to products subject to excise duty moving under duty-suspension arrangements between two tax warehouses located in the same Member State via the territory of another Member State.`

9. Article 19 is amended as follows:

(a) In paragraph 1, the following subparagraph is inserted after the second subparagraph:

'The competent authorities of each Member State may stipulate that the information contained in the copy intended for the competent authorities of the Member State of dispatch and in the copy intended for the competent authorities of the Member State of destination is to be sent by computerized means;`.

(b) In paragraph 2, the following two subparagraphs are inserted after the first subparagraph:

'Notwithstanding the above provisions, Member States may provide for the copies referred to above to be sent immediately to the consignor by fax in order to ensure that the operation is duly concluded.

Where products subject to excise duty move frequently and regularly between tax warehouses located in two Member States, the competent authorities of those Member States may authorize an authorized warehousekeeper of dispatch to simplify the procedure for discharging the accompanying document by means of summary or automated certification.`

(c) In paragraph 4, the first sentence is replaced by the following:

'Products subject to excise duty that are dispatched by an auhtorized warehousekeeper established in a Member State for exportation via one or more other Member States shall be permitted to move under the duty-suspension arrangement as defined in Article 4 (c). That arrangement shall be discharged by an attestation drawn up by the customs office of departure from the Community confirming that the products have indeed left the Community.`

10. Article 23 is amended as follows:

(a) The following paragraph 1a is inserted:

'1a. The armed forces and organizations referred to in paragraph 1 above shall be authorized to receive products under excise-duty suspension arrangements under cover of the accompanying document referred to in Article 18 of this Directive provided that the document is accompanied by an exemption certificate as shown in the Annex to this Directive.`

(b) The following paragraph 4a is inserted:

'4a. The provisions relating to excise duties contained in Directive 69/169/EEC relating to exemption from turnover tax and excise duty on imports in international travel (4) and in Directive 78/1035/EEC on the exemption from taxes of imports of small consignments of goods of a non-commercial character within the Community (5) shall cease to have effect on 1 October 1994 in respect of relations with third countries.

(4) OJ No L 133, 4. 6. 1969, p. 6.

(5) OJ No L 366, 28. 12. 1978, p. 34.`

11. The following Article is inserted:

'Article 23a

Subject to the same limits and conditions as laid down for import duties in Regulation (EEC) No 918/83 (1), Member States shall exempt the following products on importation into the Community territory as defined in Article 2 of this Directive:

(a) fuels and lubricants present on board means of transport and in special containers;

(b) products subject to excise duty in the context of international travel;

(c) small consignments of a non-commercial nature subject to excise duty;

(d) products subject to excise duty belonging to natural persons transferring their normal residence from a third country to the Community;

(e) products subject to excise duty imported on the occasion of a marriage;

(f) products subject to excise duty acquired by inheritance;

(g) products subject to excise duty to be used by monarchs or heads of state.

(1) OJ No L 105, 23. 4. 1983, p. 1.`

12. Article 24 is amended as follows:

(a) Paragraph 2 is replaced by the following:

'2. The measures necessary for the application of Articles 5, 7, 15b, 18 and 19 shall be adopted in accordance with the procedure laid down in paragraphs 3 and 4.`

(b) Paragraph 4 (b), second subparagraph is replaced by the following:

'If, on the expiry of three months from the date on which the matter was referred to it, the Council has not adopted any measures, the Commission shall adopt the proposed measures.`

Article 2

Directive 92/81/EEC is hereby amended as follows:

1. Article 2 is amended as follows:

(a) Paragraph 1 is replaced by the following:

'1. For the purposes of this Directive, "mineral oil" shall cover:

(a) benzoles, toluoles and xyloles falling within CN codes 2707 10, 2707 20 and 2707 30;

(b) other aromatic hydrocarbon mixtures of which 65 % or more by volume (including losses) distils af 250 0C by the ASTM D 86 method falling within CN code 2707 50;

(c) leaded petrol falling within CN codes 2710 00 26, 2710 00 31 and 2710 00 36;

(d) unleaded petrol falling within CN codes 2710 00 27, 2710 00 29 and 2710 00 32;

(e) other light oils falling within CN code 2710 00 39;

(f) kerosene falling within CN codes 2710 00 51 and 2710 00 55;

(g) gas oil falling within CN code 2710 00 69;

(h) heavy oil falling with CN code 2710 00 79;

(i) liquefied petroleum gas falling within CN codes 2711 12 11 to 2711 19 00;

(j) methane falling within CN 2711 29 00;

(k) toluene falling within CN code 2902 30;

(l) xylenes falling within CN code 2902 41 to 2902 44.`

(b) In paragraph 3, the first subparagraph is replaced by the following:

'3. In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as a motor fuel, as an additive designed to improve the efficiency of fuels or as an extender in motor fuels shall be taxed as motor fuel. Any other hydrocarbon, except for coal, lignite, peat, natural gas, any other hydrocarbon in its crude state, petroleum coke, petroleum bitumen and other residues of petroleum oils, intended for use, offered for sale or used for heating purposes shall be taxed at the rate for equivalent mineral oil.`

(c) Paragraph 4 is replaced by the following:

'4. References in paragraph 1 above to codes of the combined nomenclature shall be to those of the version of the CN in force on 1 October 1994.`

2. In Article 4 (3), the first subparagraph is replaced by the following:

'3. The consumption of mineral oils within the curtilage of an establishment producing mineral oils or other similar hydrocarbons shall not be considered a chargeable event giving rise to excise duty as long as the consumption is for the purpose of such production.`

3. Article 8 is amended as follows:

(a) In paragraph 1, the following point (d) is added:

'(d) mineral oils injected into blast furnaces for the purposes of chemical reduction as an addition to the coal used as the principal fuel.`

(b) In paragraph 2, the first sentence is replaced by the following:

'2. Without prejudice to other Community provisions, Member States may apply total or partial exemptions or reductions in the rate of duty to mineral oils or to other products intended for the same uses which are used under fiscal control.`

4. In Title II, the following Article is inserted:

'Article 8a

Mineral oils released for consumption in a Member State, contained in the tanks of commercial motor vehicles and intended to be used as fuel by those same vehicles as well as in special containers and intended to be used for the operation, during the course of transport, of the systems equipping those same containers shall not be subject to excise duty in any other Member State.`

Article 3

Directive 92/82/EEC is hereby amended as follows:

1. Article 2 is amended as follows:

(a) In paragraph 1, the first two indents are replaced by the following:

'- leaded petrol falling within CN codes 2710 00 26, 2710 00 31 and 2710 00 36;

- unleaded petrol falling within CN codes 2710 00 27, 2710 00 29 and 2710 00 32;`

(b) Paragraph 2 is replaced by the following:

'2. References in paragraph 1 above to CN codes shall be to those of the combined nomenclature in force on 1 October 1994.`

Article 4

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 October 1994. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.

Article 5

This Directive is addressed to the Member States.

(1) OJ No L 76, 23. 3. 1992, p. 11.

(2) OJ No L 316, 31. 10. 1992, p. 12.

(3) OJ No L 316, 31. 10. 1992, p. 19.

(4) OJ No L 145, 13. 6. 1977, p. 1.

(5) OJ No L 369, 18. 12. 1992, p. 17.

(6) OJ No C 143A, 24. 5. 1993, p. 560.

ANNEX

EUROPEAN COMMUNITY VAT AND EXCISE DUTY EXEMPTION CERTIFICATE (Dir. 77/388/EEC, Art. 15 (10) - Dir. 92/12/EEC, Art. 23 (1)

>START OF GRAPHIC>

Serial Number (optional):

1. ELIGIBLE INSTITUTION/INDIVIDUAL

Designation/name: ..........

Street, house number ..........

Postal code, place ..........

(Host) Member State ..........

2. COMPETENT AUTHORITY FOR ISSUING THE STAMP

(name, address and telephone number)

..........

..........

3. DECLARATION FROM THE ELIGIBLE INSTITUTION OR INDIVIDUAL

The eligible institution or individual (1) hereby declares:

(a) that the goods and/or services supplied set out in point 5 are destined (2):

Ofor the official use of

Oa foreign diplomatic mission

Oa foreign consular representation

Oan international organisation

Oan armed force of a state being a party to the North Atlantic Treaty (NATO force)

Ofor the personal use of a staff member of the following institution: .......... ..........(designation of the institution) (see point 4)

(b) that the supply of the goods and/or services set out in point 5 complies with the conditions and limitations applicable to the exemption in the host Member State mentioned in point 1, and

(c) that the information above is furnished in good faith. The purchaser hereby undertakes to pay to the Member State where the supplies of goods and/or services take place, the VAT and/or the excise duty which would be due if these supplies did not comply with the conditions of exemption, or when the goods and/or services were not put to the intended use.

..........

Place, date

..........

Name and status of signatory

..........

Signature

4. STAMP OF THE INSTITUTION (in case of exemption for personal use)

..........

Place, date

Stamp

..........

Name and status of signatory

..........

Signature

5. DESCRIPTION OF THE SUPPLY OF GOODS AND/OR SERVICES FOR WHICH THE EXEMPTION FROM VAT AND EXCISE DUTY IS REQUESTED

A. Information concerning the supplier of the goods and/or services

1. Name and Address: ..........

2. Member State: ..........

3. VAT identification number: .......... (optional)

and/or tax warehouse number: .......... (optional)

B. Information concerning the goods and/or services

No

Detailed description of goods and/or services (3)

(or refer to the attached order form)

Quantity or number

Price without VAT and excise duty

Unit price

Total price

Currency

Total amount:

6. DECLARATION (STAMP) FROM THE COMPETENT AUTHORITY OF THE HOST MEMBER STATE

The supply of goods and/or services set out in point 5 (4) meets (2)

Ototally

Oup to the sum of ....................................... (currency),

the conditions to be exempted from VAT and/or excise duty.

..........

Place, date

Stamp

..........

Name and status of signatory

..........

Signature

7. DISPENSATION FROM STAMP (only in the case of VAT exemption for official use)

By letter No .......... (reference to file) of ........................................(date),

.......... (designation of eligible institution) has been dispensed by .......... (designation of the competent authority in the host Member State) from the need to ask for the stamp under point 6.

..........

Place, date

Stamp

..........

Name and status of signatory

..........

Signature

(1) Delete as appropriate.

(2) Place a cross in the appropriate case.

(3) Delete space not-used. This obligation also applies to the order form.

(4) The supplies of goods and services not eligible are cancelled.

>END OF GRAPHIC>

MINIMUM INFORMATION TO BE GIVEN IN EXPLANATORY NOTES

1. For the supplier, this certificate serves as a supporting document for the tax exemption of the supplies of goods and/or services to eligible institutions/individuals referred to in Article 15 (10) of the sixth VAT Directive (77/388/EEC), as well as in Article 23 (1) of Directive 92/12/EEC. Accordingly, one certificate shall be drawn up per supplier. Moreover, the supplier is required to keep this certificate as part of his records in accordance with the legal provisions applicable in his Member State.

2. (a) The certificate shall be drawn up on a form printed in one of the official languages of the European Community. It shall be completed in a language recognised by the host Member State.

(b) If the list of the goods and services (point 5B of the certificate) refers to a purchase order form drawn up in a language other than a language recognised by the host Member State, a translation must be attached by the eligible institution/individual.

(c) On the other hand, if the certificate is drawn up in a language other than a language recognised by the Member State of the supplier, a translation of the information concerning the goods and/or services in point 5B must be attached by the eligible institution/individual.

(d) A recognised language means one of the languages officially in use in the Member State or any other official language of the Community which the Member State declares can be used for this purpose.

3. By its declaration in point 3 of the certificate, the eligible institution/individual indicates the elements necessary for the evaluation of the request for exemption in the host Member State.

4. By its declaration in point 4 of the certificate, the institution certifies that the eligible individual is a staff member of the institution.

5. (a) The reference to the purchase order form (point 5B of the certificate) must contain at least the date and order number. The order form should contain all the elements that figure at point 5 of the certificate. If the certificate has to be stamped by the competent authority of the host Member State, the order form shall also be stamped.

(b) The VAT identification number and/or the tax warehouse number as defined in Article 4(b) of Directive 92/12/EEC of the supplier shall be given, if it is known by the eligible institution/individual.

(c) The currencies are indicated by means of a three letters code in conformity with the dates of the international ISO/DIS 4217 standard established by the International Standard Organization (1).

6. The declaration mentioned above is authenticated at point 6 by the stamp of the competent authority of the host Member State. These authorities can delegate their approval with the prior agreement of another authority of their Member State, for example the Ministry for Foreign Affairs. It is up to the authority competent for tax matters to make such agreements.

7. To simplify the procedure, the competent authority can dispense with the obligation of the eligible institution to ask for the stamp in the case of exemption for official use. The eligible institution should mention this dispensation at point 7 of the certificate.

(1) As an indication, some codes relating to currencies currently used:

BEF (Belgian franc), DEM (German mark), DKK (Danish krone), ESP (Spanish peseta), FRF (French franc), GBP (Pound sterling), GRD (Greek drachma), IEP (Irish pound), ITL (Italian lire), LUF (Luxemburgish franc), NLG (Netherlands guilder), PTE (Portuguese escudo) and USD (United States dollar).