Proposal for a European Parliament and Council Directive amending Council Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties and in respect of value added tax and certain excise duties
Date: 1998-06-25
Institutions: European Commission
Subjects: EAGGF Guarantee Section, VAT, agricultural levy, claim, customs duties

C  269/16

EN

Official  Journal  of  the  European  Communities

28.8.98

II

(Preparatory  Acts)

COMMISSION

Proposal  for  a  European  Parliament  and  Council  Directive  amending  Council  Directive
76/308/EEC  on  mutual  assistance  for  the  recovery  of  claims  resulting  from  operations  forming
part  of  the  system  of  financing  the  European  Agricultural  Guidance  and  Guarantee  Fund,  and
of  agricultural  levies  and  customs  duties  and  in  respect  of  value(cid:220)added  tax  and  certain  excise
duties

(98/C  269/06)

COM(1998)  364  final  -  98/0206(COD)

(Submitted  by  the  Commission  on  26  June  1998)

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL
OF  THE  EUROPEAN  UNION,

Having  regard  to  the  Treaty  establishing  the  European
Community,  and  in  particular  Article  100a  thereof,

Whereas  in  order  to  permit  more  efficient  and  effective
recovery  of  claims  in  respect  of  which  a  request  for
recovery  has  been  made, 
instrument  permitting
enforcement  of  the  claim  should  be  treated  as  an
instrument  of  the  Member  State  in  which  the  requested
authority  is  situated;

the 

Having  regard  to  the  proposal  from  the  Commission,

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

Whereas  the  use  of  mutual  assistance  on  recovery  by  the
Member  States  should  be  encouraged  by  making  the
mutual  financial  benefits  inherent  in  mutual  assistance
more  transparent  on  a  case(cid:220)by(cid:220)case  basis;

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty,

Whereas,  therefore,  Directive  76/308/EEC  should  be
amended  accordingly,

out 

Whereas  the  existing  arrangements  for  mutual  assistance
in  Council  Directive
on 
set 
recovery 
the  Act  of
76/308/EEC(cid:216)(˛),  as 
Accession  of  Austria,  Finland  and  Sweden,  should  be
modified  to  meet  the  threat  to  the  financial  interests  of
the  Community  and  the  Member  States  and  to  the
internal  market  posed  by  the  development  of  fraud;

last  amended  by 

Whereas 
in  order  to  safeguard  better  the  financial
interests  of  the  Member  States  and  the  neutrality  of  the
internal  market,  claims  relating  to  certain  taxes  on
income  and  capital  should  be  added  to  the  scope  of  the
mutual  assistace  provided  for  by  that  Directive;

Whereas  any  claim  in  respect  of  which  a  request  for
recovery  has  been  made  should  be  treated  as  a  claim  of
the  Member  State  in  which  the  requested  authority  is
situated  but  should  not  be  given  preferential  treatment
over  and  above  that  given  to  similar  claims  arising  in  that
Member  State;

(˛)(cid:217)OJ  L  73,  19.3.1976,  p.  18.

HAVE  ADOPTED  THIS  DIRECTIVE:

Article  1

Directive  76/308/EEC  is  hereby  amended  as  follows:

1.(cid:217)The  title  is  replaced  by  the  following:

"Council  Directive  76/308/EEC  of  15  March  1976
on  mutual  assistance  for  the  recovery  of  claims
relating  to  certain  levies,  duties,  taxes  and  other
measures’.

2.(cid:217)Article  2  is  replaced  by  the  following:

"Article  2

1.(cid:218)(cid:217)This  Directive  shall  apply  to  all  claims  relating
to:

(a)(cid:217)refunds, 

and  other  measures
forming  part  of  the  system  of  total  or  partial

interventions 

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financing  of  the  European  Agricultural  Guidance
and  Guarantee  Fund, 
to  be
including  sums 
collected  in  connection  with  these  actions;

(b) levies  and  other  duties  provided  for  under  the
common  organisation  of  the  market  for  the
sugar  sector;

(c) import  duties;

(d) export  duties;

(e) value(cid:220)added  tax;

(f) excise  duties  on:

-(cid:217)manufactured  tobacco,

-(cid:217)alcohol  and  alcoholic  beverages,

-(cid:217)mineral  oils;

- ""taxes  on 

income  and  capital’’  means  those
enumerated  in  Article  1(3)  of  Council  Directive
77/799/EEC(cid:216)(*), 
conjunction  with
in 
Article  1(4)  of  that  Directive.

read 

(*)(cid:217)OJ  L  336,  27.12.1977,  p.  15.’

4.(cid:217)Article  4  is  amended  as  follows:

(a)(cid:217)in  paragraph  2  the  words  "the  name  and  address’
are  replaced  by  "the  name,  address  and  any  other
relevant 
identifi(cid:220)
cation’;

information  relating 

the 

to 

(b) in  paragraph  3,  point  (b)  is  deleted.

5.(cid:217)In  Article  5(2),  the  words  "the  name  and  address’  are
"the  name,  address  and  any  other

replaced  by 
relevant  information  relating  to  the  identification’.

(g) taxes  on  income  and  capital;

6.(cid:217)Article  7  is  amended  as  follows:

(h) interest  and  penalties,  fines,  and  costs  incidental
to  the  recovery  of  the  claims  referred  to  in  (a)  to
(g).

is 

the 

claim 

initially 

established 

2.(cid:218)(cid:217)Articles  4,  5  and  6  shall  apply  only  to  claims
not  more  than  three  years  old,  dating  from  the
moment 
in
accordance  with  the  laws,  regulations  or  adminis(cid:220)
trative  provisions  in  force  in  the  Member  State  in
which  the  applicant  authority  is  situated,  to  the  date
of  the  request.  However,  in  cases  where  the  claim  is
contested,  those  Articles  shall  apply  only  to  such
claims  which  are  not  more  than  three  years  old,
dating  from  the  moment  the  claim  may  no  longer  be
contested’.

(a)(cid:217)Paragraph  2  is  amended  as  follows:

(i) in  point  (a),  the  following  is  added:  "except
in  cases  where  the  second  subparagraph  of
Article  12(2),  is  applied’;

(ii)(cid:217)point  (b)  is  replaced  by  the  following:

recovery 

situated,  applied  and 

"(b)(cid:217)it  has,  in  the  Member  State  in  which  it
terminated
is 
procedures
appropriate 
available  to 
it  on  the  basis  of  the
instrument  referred  to  in  paragraph  1,
taken  have  not
and 
resulted  in  the  payment  in  full  of  the
claim’.

the  measures 

3.(cid:217)The  following  indents  are  added  to  Article  3:

"- ""import  duties’’  means  customs  and  charges
having  equivalent  effect  on  imports,  agricultural
levies  and  other  import  charges  laid  down  within
the  common  agricultural
the 
policy  or 
specific  arrangements
applicable  to  certain  goods  resulting  from  the
processing  of  agricultural  products,

framework  of 
in 

that  of 

- ""export  duties’’  means  customs  and  charges
having  equivalent  effect  on  exports,  agricultural
levies  and  other  export  charges  laid  down  within
the  common  agricultural
the 
policy  or 
specific  arrangements
applicable  to  certain  goods  resulting  from  the
processing  of  agricultural  products,

framework  of 
in 

that  of 

(b) Paragraphs  3  and  4  are  replaced  by 

the

following:

"3.(cid:218)(cid:217)The  request  for  recovery  shall  indicate:

(a)(cid:217)the  name,  address  and  any  other  relevant
information  relating  to  the  identification  of
the  person  concerned;

(b) the  name,  address  and  any  other  relevant
information  relating  to  the  identification  of
the  applicant  authority;

(c) a  reference  to  the  instrument  permitting  its
enforcement  issued  in  the  Member  State  in
which  the  applicant  authority  is  situated;

C  269/18

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28.8.98

(d) the  nature  and  the  amount  of  the  claim,
including  the  principal,  the  interest,  and  any
other  penalties,  fines  and  costs  due  indicated
in  the  currencies  of  the  Member  States  in
which  both  authorities  are  situated;

(e) the  date  of  notification  of  the  claim  to  the
addressee  by  the  applicant  authority  and/or
by  the  requested  authority;

(f) the  date  from  which  enforcement  is  possible
under  the  laws  in  force  in  the  Member  State
in  which  the  applicant  authority  is  situated;

(ii)(cid:217)the  second  subparagraph  is  deleted.

9.(cid:217)Article  10  is  replaced  by  the  following:

"Article  10

The  claims  to  be  recovered  shall  not  be  given  prefer(cid:220)
ential  treatment  over  and  above  that  given  to  similar
claims  arising  in  the  Member  State  in  which  the
requested  authority  is  situated.’

10.(cid:217)In  Article  11,  the  words  "the  action’  are  replaced  by

"any  action’.

(g) the  compensatory  percentage  in  accordance
with  Article  18(2),  second  subparagraph;

11.(cid:217)Article  12(2)  is  amended  as  follows:

(h) any  other  relevant  information.

The  request  shall  indicate  the  interest  due  as  a
fixed  amount  incurred  up  to  the  date  of  the
request  and  as  an  additional  amount  to  be
determined  on  recovery.  To  permit  the  requested
authority  to  calculate  this  additional  amount,  an
interest  rate  and  the  method  of  calculation  to  be
used  by  the  requested  authority  in  determining
the  interest  due  from  the  date  of  the  request  to
the  date  of  recovery  from  the  debtor  shall  be
indicated.

4.(cid:218)(cid:217)The  request  for  recovery  shall  confirm  that
the  conditions  set  out 
in  paragraph  2  are
fulfilled’.

(a)(cid:217)the  following 
",  unless 
otherwise 
subparagraph.’;

is  added  to  the  first  sentence:
requests
second

the 
applicant 
in  accordance  with 

authority 

the 

(b) the  following  subparagraph  is  added:

"If  the  applicant  authority  judges  that  the  action
will  be  held  to  be  unfounded,  it  may  request  the
requested  authority  to  recover  the  claim.  If  the
result  of  the  action  is  subsequently  favourable
for  the  debtor,  the  applicant  authority  shall  be
sums
liable 
recovered,  together  with  any  compensation  due,
in  accordance  with  the  laws  and  regulations  in
force 
the
requested  authority  is  situated’.

the  reimbursement  of  any 

the  Member  State 

in  which 

for 

in 

7.(cid:217)Article  8  is  replaced  by  the  following:

"Article  8

12.(cid:217)Article  14  is  deleted.

The  instrument  permitting  enforcement  of  the  claim
shall  be  directly  recognised  and  automatically  treated
as  an  instrument  permitting  enforcement  of  a  claim
of 
the  requested
authority  is  situated’.

the  Member  State 

in  which 

13.(cid:217)In  Article  17,  the  words  "and  relevant  documents’
instrument  permitting  the

are  replaced  by 
",  the 
enforcement  and  other  relevant  documents’.

14.(cid:217)Article  18  is  replaced  by  the  following:

8.(cid:217)Article  9  is  amended  as  follows:

"Article  18

(a)(cid:217)the  following  sentence  is  added  to  paragraph  1:

"The  entire  amount  of  the  claim  that  is  recovered
by  the  requested  authority  shall  be  remitted  by
applicant
the 
authority’.

requested 

authority 

the 

to 

(b) Paragraph  2  is  amended  as  follows:

(i) in  the  first  subparagraph,  second  sentence,
the  words  "shall  be  remitted’  are  replaced  by
"shall  also  be  remitted’;

1.(cid:218)(cid:217)The  requested  authority  shall  recover  from  the
person  concerned  and  retain  any  costs  directly
linked  to  recovery  which  it  incurs,  in  accordance
with  the  laws  and  regulations  in  the  Member  State  in
which  it  is  situated  that  apply  to  similar  claims.

2.(cid:218)(cid:217)Until  31  December  2004,  all  costs  incurred  by
the  requested  authority,  other  than  those  referred  to
in  paragraph  1,  resulting  from  mutual  assistance
which  led  to  recovery  of  part  or  all  of  the  claim  by
the  requested  authority  shall  be  reimbursed  by  the
applicant  authority  in  accordance  with  the  second
subparagraph.

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C  269/19

On  remittance  by  the  requested  authority  to  the
applicant  authority  of  the  amount  of  the  claim
recovered  by  the  requested  authority,  the  applicant
authority  shall  pay  a  sum  equal  to  a  percentage
greater  than  0,1(cid:216)%  of  the  amount  of  the  claim
recovered  and  remitted  by  the  requested  authority.
The  percentage  shall  be  indicated  by  the  applicant
authority  in  the  original  request  for  recovery.

3.(cid:218)(cid:217)From  1  January  2005,  Member  States  shall
renounce  all  claims  on  each  other  for  the  reim(cid:220)
bursement  of  costs  resulting  from  mutual  assistance
which 
this
they  grant  each  other  pursuant 
Directive.

to 

liable 

is  situated  shall  remain 

in  which  the  applicant
4.(cid:218)(cid:217)The  Member  State 
authority 
the
Member  State  in  which  the  requested  authority  is
situated  for  any  costs  and  any  losses  incurred  as  a
result  of  actions  held  to  be  unfounded,  as  far  as
either  the  substance  of  the  claim  or  the  validity  of
the  instrument  issued  by  the  applicant  authority  are
concerned’.

to 

15.(cid:217)Article  22(1)  is  replaced  by  the  following:

"1.(cid:218)(cid:217)The  detailed  rules  for  implementing  Articles
4(2)  and  4,  5(2)  and  (3),  7,  8,  9,  11,  12(1)  and  (2),
18(2)  and  25  and  for  determining  the  means  by
which  communications  between  the  authorities  may
be  transmitted,  the  rules  on  conversion,  transfer  of
the  fixing  of  a  minimum
sums  recovered,  and 
amount  for  claims  which  may  give  rise  to  a  request
for  assistance,  shall  be  adopted  in  accordance  with
the  procedure  laid  down  in  paragraphs  2  and  3  of
this  Article.’

16.(cid:217)The  following  paragraph  is  added  to  Article  25:

notification  and  recovery  sent  and  received  each
year,  the  amount  of  the  claims  involved,  the  amounts
recovered,  the  amounts  deemed  irrecoverable,  and
the  time  taken  to  carry  out  these  actions.  The
Commission  shall  report  to  the  European  Parliament
and 
these
arrangements  and  on  the  results  achieved  biennially’.

the  use  made  of 

the  Council  on 

Article  2

1.(cid:218)(cid:217)Member  States  shall  bring 
laws,
regulations  and  administrative  provisions  necessary  to
comply  with  this  Directive  by  31  December  1999  at  the
latest.  They  shall  forthwith 
inform  the  Commission
thereof.

into  force  the 

When  Member  States  adopt  these  provisions,  they  shall
contain  a  reference  to  this  Directive  or  shall  be  accom(cid:220)
panied  by  such  reference  at  the  time  of  their  official
publication.  The  procedure  for  such  reference  shall  be
adopted  by  Member  States.

States 

2.(cid:218)(cid:217)Member 
the
shall 
Commission  the  main  provisions  of  national  law  which
they  adopt  in  the  field  covered  by  this  Directive  and  a
correlation  table  between  this  Directive  and  the  national
provisions  adopted.

communicate 

to 

Article  3

This  Directive  shall  enter  into  force  on  the  20th  day
following  its  publication  in  the  Official  Journal  of  the
European  Communities.

"Each  Member  State  shall  inform  the  Commission
annually  of  the  number  of  requests  for  information,

Article  4

This  Directive  is  addressed  to  the  Member  States.