Council Directive 2001/44/EC of 15 June 2001 amending 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: 2001-06-15
Institutions: Council of the European Union
Subjects: CCT duties, EAGGF, VAT, agricultural levy, distribution of EU funding, excise duty

28.6.2001

EN

Official Journal of the European Communities

L 175/17

COUNCIL DIRECTIVE 2001/44/EC

of 15 June 2001

amending 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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 93 and 94 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the Economic and Social
Committee (3),

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

The existing arrangements for mutual assistance for
recovery set out in Directive 76/308/EEC (4) 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.

In the context of the internal market, Community and
national financial interests, which are increasingly threat-
ened by fraud, must be protected so as to safeguard
better the competitiveness and fiscal neutrality of the
internal market.

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
and taxes on insurance premiums should be added to
the scope of
the mutual assistance provided for by
Directive 76/308/EEC.

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

The use of mutual assistance for recovery cannot, save in
exceptional circumstances, be based on financial benefits
or an interest in the results obtained, but Member States
should be able to agree the reimbursement arrangements
when recovery poses a specific problem.

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down

(1) OJ C 269, 28.8.1998, p. 16 and
OJ C 179, 24.6.1999, p. 6.

(2) OJ C 150, 28.5.1999, p. 621 and opinion delivered on 16.5.2001

(not yet published in the Official Journal).

(3) OJ C 101, 12.4.1999, p. 26.
(4) OJ L 73, 19.3.1976, p. 18. Directive as last amended by the 1994

Act of Accession.

the procedures for the exercise of implementing powers
conferred on the Commission (5).

(7)

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

HAS ADOPTED THIS DIRECTIVE:

Article 1

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

1. The title shall be 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. Article 2 shall be replaced by the following:

‘Article 2

This Directive shall apply to all claims relating to:

(a) refunds,

interventions and other measures forming
part of the system of total or partial financing of the
European Agricultural Guidance and Guarantee Fund
(EAGGF), including sums to be collected in connection
with these actions;

(b) levies and other duties provided for under

the
for the sugar

common organisation of
sector;

the market

(c) import duties;

(d) export duties;

(e) value added tax;

(f) excise duties on:

— manufactured tobacco,
— alcohol and alcoholic beverages,
— mineral oils;

(g) taxes on income and capital;

(h) taxes on insurance premiums;

(i) interest, administrative penalties and fines, and costs
incidental to the claims referred to in points (a) to (h),
with the exclusion of any sanction of a criminal nature
as determined by the laws in force in the Member State
in which the requested authority is situated.’

(5) OJ L 184, 17.7.1999, p. 23.

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Official Journal of the European Communities

28.6.2001

3. In Article 3, the following indents shall be added:

in the Netherlands:

Assurantiebelasting

‘— “import duties” means customs duties and charges
having equivalent effect on imports, and import
charges
the
common agricultural policy or in that of specific
arrangements applicable to certain goods resulting
from the processing of agricultural products,

laid down within the framework of

— “export duties” means customs duties and charges
having equivalent effect on exports, and export
charges laid down within the framework of
the
common agricultural policy or in that of specific
arrangements applicable to certain goods resulting
from the processing of agricultural products,

— “taxes

and

income
in Article 1(3)

those
on
enumerated
of Directive 77/
799/EEC (*), read in conjunction with Article 1(4) of
that Directive,

capital” means

— “taxes on insurance premiums” means:

in Austria:

in Belgium:

in Germany:

in Denmark:

(i) Versicherungssteuer
(ii) Feuerschutzsteuer

(i) Taxe

sur
annuelle
contrats d'assurance

les

(ii) Jaarlijkse

taks

op de

verzekeringscontracten

(i) Versicherungssteuer
(ii) Feuerschutzsteuer

(i) Afgift af
sikringer

lystfartøjsfor-

in Portugal:

Imposto de selo sobre os
prémios de seguros

in Sweden:

none

in the United Kingdom:insurance premium tax (IPT).

This Directive shall also apply to claims relating to
identical or analogous taxes which supplement or
replace the taxes on insurance premiums referred to in
the sixth indent. The competent authorities of the
Member States shall communicate to each other and
to the Commission the dates of entry into force of
such taxes.

(*) Council Directive 77/799/EEC of 19 December 1977
competent
the
concerning mutual
in the field of
authorities of
direct
taxation (OJ L 336, 27.12.1977, p. 15).
Directive as last amended by the 1994 Act of Acces-
sion.’

assistance by
the Member States

4. In Article 4(2), the words ‘the name and address’ shall
be replaced by:
‘the name, address and any other rele-
vant information relating to the identification to which
the applicant authority normally has access’.

5. In Article 5(2) the words ‘the name and address’ shall
be replaced by:
‘the name, address and any other rele-
vant information relating to the identification to which
the applicant authority normally has access’.

6. Articles 7, 8, 9 and 10 shall be replaced by the

(ii) Afgift af ansvarsforsik-
for motorkøre-

ringer
tøjer m.v.
(iii) Stempelafgift af
ringspræmier

forsik-

following:

‘Article 7

in Spain:

Impuesto sobre la prima de
seguros

in Greece:

(i) Φòρος κύκλου εργασιών

in France:

in Finland:

in Italy:

(Φ.Κ.Ε)

(ii) Τέλη Χαρτοσήµου

sur

Taxe
d'assurances

les

conventions

(i) Eräistä

vakuutusmak-
suista suoritettava vero/
skatt på vissa försäkring-
spremier

(ii) Palosuojelumaksu/brand-

skyddsavgift

Imposte sulle assicurazioni
private ed i contratti vitalizi
di cui alla legge 29.10.1967
No 1216

in Ireland:

levy on insurance premiums

in Luxembourg:

(i) Impôt sur les assurances
(ii) Impôt dans l'interêt du

service d'incendie

The request

1.
for recovery of a claim which the
applicant authority addresses to the requested authority
must be accompanied by an official or certified copy of
the instrument permitting its enforcement, issued in the
Member State in which the applicant authority is situ-
ated and,
if appropriate, by the original or a certified
copy of other documents necessary for recovery.

The applicant authority may not make a request

2.
for recovery unless:

(a) the

the

claim and/or

instrument permitting its
enforcement are not contested in the Member State
in which it
in cases where the
second subparagraph of Article 12(2) is applied,

is situated, except

(b) it has,

in the Member State in which it is situated,
applied appropriate recovery procedures available to
it on the basis of the instrument referred to in para-
graph 1, and the measures taken will not result in
the payment in full of the claim.

3.

The request for recovery shall

indicate:

(a) the name, address and any other relevant informa-
tion relating to the identification of
the person
concerned and/or to the third party holding his or
her assets;

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Official Journal of the European Communities

L 175/19

(b) the name, address and any other relevant informa-
the applicant

tion relating to the identification of
authority;

(c) a reference to the instrument permitting its enforce-
ment issued in the Member State in which the appli-
cant authority is situated;

(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 situ-
ated;

(e) the date of notification of

to the
addressee by the applicant authority and/or by the
requested authority;

the instrument

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

(g) any other relevant information.

for

The request

recovery shall also contain a
4.
declaration by the applicant authority confirming that
the
in paragraph 2 have been
fulfilled.

conditions

set out

As soon as any relevant

information relating to
5.
the matter which gave rise to the request for recovery
comes to the knowledge of
the applicant authority it
shall forward it to the requested authority.

Article 8

The

instrument permitting enforcement of

1.
the
claim shall be directly recognised and automatically
treated as an instrument permitting enforcement of a
the Member State in which the requested
claim of
authority is situated.

2.
Notwithstanding the first paragraph, the instrument
permitting enforcement of the claim may, where appro-
priate and in accordance with the provisions in force in
the Member State in which the requested authority is
situated, be accepted as,
recognised as, supplemented
with, or replaced by an instrument authorising enforce-
ment in the territory of that Member State.

receipt of

the date of

Within three months of
the
request for recovery, Member States shall endeavour to
complete such acceptance, recognition, supplementing or
replacement, except
in cases where the third subpara-
graph is applied. They may not be refused if the instru-
ment permitting enforcement is properly drawn up. The
inform the applicant authority
requested authority shall
of
three
months.

for exceeding the period of

the grounds

If any of these formalities should give rise to contesta-
tion in connection with the claim and/or the instrument
permitting
applicant
issued
authority, Article 12 shall apply.

enforcement

the

by

Article 9

1.
Claims shall be recovered in the currency of the
Member State in which the requested authority is situ-
ated. The entire amount of the claim that is recovered

by the requested authority shall be remitted by the
requested authority to the applicant authority.

2.
The requested authority may, where the laws, regu-
lations or administrative provisions
in force in the
is situated so permit, and
Member State in which it
after consultations with the applicant authority, allow
the debtor time to pay or authorise payment by instal-
ment. Any interest charged by the requested authority in
respect of such extra time to pay shall also be remitted
to the Member State in which the applicant authority is
situated.

recognised,

From the date on which the instrument permitting
enforcement of recovery of the claim has been directly
supplemented or
recognised or accepted,
replaced in accordance with Article 8,
interest will be
charged for late payment under the laws, regulations
and administrative provisions in force in the Member
State in which the requested authority is situated and
shall also be remitted to the Member State in which the
applicant authority is situated.

Article 10

Notwithstanding Article 6(2), the claims to be recovered
shall not necessarily benefit from the privileges accorded
to similar claims arising in the Member State in which
the requested authority is situated.’

7. Article 12(2) shall be amended as follows:

(a) The following shall be added to the first sentence:
‘unless the applicant authority requests otherwise in
accordance with the second subparagraph’;

(b) the following subparagraph shall be added:

to

the

recover

authority

requested

‘Notwithstanding the first subparagraph of paragraph
2, the applicant authority may in accordance with
the law, regulations and administrative practices in
force in the Member State in which it is situated,
request
a
contested claim, in so far as the relevant laws, regu-
lations and administrative practices in force in the
Member State in which the requested authority is
situated allow such action. If the result of contesta-
tion is subsequently favourable to the debtor,
the
applicant authority shall be liable for the reimburse-
ment of any sums
together with any
recovered,
compensation due,
in accordance with the laws in
force in the Member State in which the requested
authority is situated.’

8. In Article 14, the first paragraph, shall be replaced by

the following:

‘The requested authority shall not be obliged:

(a) to grant the assistance provided for in Articles 6 to
13 if recovery of the claim would, because of the
situation of the debtor, create serious economic or
social difficulties in the Member State in which that
authority is situated,
in so far as the laws, regula-
tions and administrative practices in force in the
Member State in which the requested authority is
situated allow such action for
similar national
claims;

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Official Journal of the European Communities

28.6.2001

if

(b) to grant the assistance provided for in Articles 4 to
13,
the initial request under Article 4, 5 or 6
applies to claims more than five years old, dating
from the moment
the instrument permitting the
recovery is established in accordance with the laws,
regulations or administrative practices in force in the
Member State in which the applicant authority is
situated,
in
cases where the claim or the instrument is contested,
the time limit begins from the moment at which the
the
applicant State establishes
enforcement order permitting recovery may no
longer be contested.’

the request. However,

to the date of

the claim or

that

9. In Article 17, the words ‘and relevant documents’ shall
‘the instrument permitting the enforce-

be replaced by:
ment and other relevant documents’.

10. Article 18 shall be replaced by the following:

‘Article 18

from the
recover
1.
The requested authority shall
linked to
costs
person concerned and retain any
recovery which it incurs,
in accordance with the laws
and regulations of the Member State in which it is situ-
ated that apply to similar claims.

for

2. Member States shall renounce all claims on each
other
the refund of costs resulting from mutual
assistance which they grant each other pursuant to this
Directive.

3. Where recovery poses a specific problem, concerns
in costs or relates to the fight
a very large amount
the applicant and requested
against organised crime,
arrangements
reimbursement
agree
authorities may
specific to the cases in question.

4.
The Member State in which the applicant authority
is situated shall remain liable to 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
issued by the applicant
authority are concerned.’

the instrument

11. Article 20 shall be replaced by the following:

‘Article 20

1.
The Commission shall be assisted by a recovery
committee (hereinafter referred to as “the Committee”),
composed of representatives of the Member States and
chaired by the representative of the Commission.

2. Where reference is made to this paragraph, Articles
5 and 7 of Decision 1999/468/EC shall apply.

The period referred to in Article 5(6) of Decision 1999/
468/EC shall be set at three months.

The Committee shall adopt its own rules of proce-

3.
dure.’

12. Article 22 shall be replaced by the following:

‘Article 22

The detailed rules for implementing Articles 4(2) and
(4), 5(2) and (3) and Articles 7, 8, 9, 11, 12(1) and (2),
14, 18(3) and 25 and for determining the means by
which communications between the authorities may be
transfer of sums
transmitted,
the rules on conversion,
recovered, and the fixing of a minimum amount
for
claims which may give rise to a request for assistance,
shall be adopted in accordance with the procedure laid
down in Article 20(2).’

13. The following paragraph shall be added to Article 25:

shall
the number of

inform the Commission
‘Each Member State
annually of
information,
requests for
notification and recovery sent and received each year,
the amount of
the claims involved and the amounts
recovered. The Commission shall report biennially to the
European Parliament and the Council on the use made
of these arrangements and on the results achieved.’

Article 2

1. Member States shall bring into force the laws, regula-
tions and administrative provisions necessary to comply with
this Directive not later than 30 June 2002. They shall forth-
with inform the Commission thereof.

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

these measures,

2. Member States shall communicate to the Commission
the text of the main provisions of national
law which they
adopt in the field covered by this Directive together with a
table showing how the provisions of
this Directive corre-
spond to the national provisions adopted.

Article 3

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

This Directive is addressed to the Member States.

Article 4

Done at Göteborg, 15 June 2001.

For the Council

The President

B. RINGHOLM