Commission Directive 2002/94/EC of 9 December 2002 laying down detailed rules for implementing certain provisions of Council Directive 76/308/EEC on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures
Date: 2002-12-09
Institutions: European Commission
Subjects: EAGGF, administrative cooperation, claim, disclosure of information, distribution of EU funding, exchange of information, form, redemption

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Official Journal of the European Communities

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COMMISSION DIRECTIVE 2002/94/EC

of 9 December 2002

laying down detailed rules for implementing certain provisions of Council Directive 76/308/EEC
on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other
measures

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

HAS ADOPTED THIS DIRECTIVE:

Having regard to the Treaty establishing the European
Community,

Having regard to 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 (1), as last
amended by Directive 2001/44/EC (2), and in particular Article
22 thereof,

Whereas:

(1)

(2)

(3)

(4)

(5)

The system of mutual assistance between the competent
authorities of Member States, as set out in Directive 76/
308/EEC, has been amended as regards the information
to be supplied to the applicant authority, the notification
of the addressee concerning the applicable instruments
and decisions, the adoption of precautionary measures,
and the recovery by the requested authority of claims on
behalf of the applicant authority.

As regards each of those aspects, therefore, Commission
Directive 77/794/EEC of 4 November 1977 laying down
detailed rules for implementing certain provisions of
Directive 76/308/EEC on mutual assistance for
the
recovery of claims resulting from operations forming
part of the system of financing the European Agricul-
tural Guidance and Guarantee Fund, and of agricultural
levies and customs duties, and in respect of value added
tax (3), as last amended by Directive 86/489/EEC (4),
should be amended accordingly.

Furthermore, detailed rules
concerning
between authorities may be transmitted.

laid down
the means by which communications

should be

In the interests of clarity, Directive 77/794/EEC should
be replaced.

The measures provided for in this Directive are in accor-
dance with the opinion of the Committee on Recovery,

(1) OJ L 73, 19.3.1976, p. 18.
(2) OJ L 175, 28.6.2001, p. 17.
(3) OJ L 333, 24.12.1977, p. 11.
(4) OJ L 283, 4.10.1986, p. 23.

CHAPTER I

GENERAL PROVISIONS

Article 1

This Directive lays down the detailed rules for implementing
Article 4(2) and (4), Article 5(2) and (3), Article 7, Article 8,
Article 9, Article 11, Article 12(1) and (2), Article 14, Article
18(3) and Article 25 of Directive 76/308/EEC.

It also lays down the detailed rules on conversion, transfer of
sums recovered, the fixing of a minimum amount for claims
which may give rise to a request for assistance, as well as the
means by which communications between authorities may be
transmitted.

Article 2

For the purposes of this Directive:

1. transmission ‘by electronic means’ shall mean transmission
using electronic equipment for processing (including digital
compression) of data and employing wires, radio transmis-
sion, optical technologies or other electromagnetic means;

2.

‘CCN/CSI’ network shall mean the common platform based
on the Common Communication Network (CCN) and
Common System Interface (CSI), developed by the Commu-
nity to ensure all transmissions by electronic means between
competent authorities in the area of Customs and Taxation.

CHAPTER II

REQUESTS FOR INFORMATION

Article 3

The request for information referred to in Article 4 of Directive
76/308/EEC shall be made out in writing in accordance with
the model in Annex I to this Directive. If the request cannot be
transmitted by electronic means, it shall bear the official stamp
of the applicant authority and shall be signed by an official
thereof duly authorised to make such a request.

Where a similar request has been addressed to any other
authority, the applicant authority shall indicate in its request
for information the name of that authority.

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Article 4

Article 8

The request for information may relate to:

1. the debtor;

2. any person liable for settlement of the claim under the law
in force in the Member State in which the applicant
authority is situated (hereinafter ‘the Member State of the
applicant authority’);

3. any third party holding assets belonging to one of

the

persons mentioned under point 1 or 2.

Article 5

1.
The requested authority shall acknowledge receipt of the
request for information in writing as soon as possible and in
any event within seven days of such receipt.

2.
Immediately upon receipt of the request the requested
authority shall, where appropriate, ask the applicant authority
to provide any additional information necessary. The applicant
authority shall provide all additional necessary information to
which it normally has access.

Article 6

The requested authority shall

1.
transmit each item of
requested information to the applicant authority as and when it
is obtained.

2. Where all or some of the requested information cannot
be obtained within a reasonable time, having regard to the
particular case, the requested authority shall so inform the
applicant authority, indicating the reasons therefor.

In any event, at the end of six months from the date of
the requested
acknowledgement of receipt of
authority shall inform the applicant authority of the outcome
of the investigations which it has conducted in order to obtain
the information requested.

the request,

In the light of the information received from the requested
authority, the applicant authority may request the latter to
continue its investigations. That request shall be made in
writing within two months of the receipt of the notification of
the outcome of the investigations carried out by the requested
authority, and shall be treated by the requested authority in
accordance with the provisions applying to the initial request.

The applicant authority may at any time withdraw the request
for information which it has sent to the requested authority.
The decision to withdraw shall be transmitted to the requested
authority in writing.

CHAPTER III

REQUESTS FOR NOTIFICATION

Article 9

The request for notification referred to in Article 5 of Directive
76/308/EEC shall be made out in writing in duplicate in accor-
dance with the model in Annex II to this Directive. The said
request shall bear the official stamp of the applicant authority
and shall be signed by an official thereof duly authorised to
make such a request.

Two copies of the instrument or decision, notification of which
is requested, shall be attached to the request.

Article 10

The request for notification may relate to any natural or legal
person who, in accordance with the law in force in the Member
State of the applicant authority, is required to be informed of
any instrument or decision which concerns that person.

In so far as such is not indicated in the instrument or decision
of which notification is requested, the request for notification
shall refer to the rules in force in the Member State of the
applicant authority governing the procedure for contestation of
the claim or for its recovery.

Article 11

The requested authority shall acknowledge receipt of the
1.
request for notification in writing as soon as possible and in
any event within seven days of such receipt.

Immediately upon receipt of the request for notification, the
requested authority shall take the necessary measures to effect
notification in accordance with the law in force in the Member
State in which it is situated.

If necessary, but without jeopardising the final date for notifica-
tion indicated in the request for notification, the requested
authority shall ask the applicant authority to provide additional
information.

Article 7

The applicant authority shall provide all additional information
to which it normally has access.

If the requested authority decides not to comply with the
request for information, it shall notify the applicant authority
in writing of the reasons for the refusal to comply with the
request, specifying the provisions of Article 4 of Directive 76/
308/EEC on which it relies. Such notification shall be given by
the requested authority as soon as it has taken its decision and
in any event within three months of the date of the acknowl-
edgement of the receipt of the request.

The requested authority shall
in any event not question the
validity of the instrument or decision of which notification is
requested.

The

requested authority shall

2.
inform the applicant
authority of the date of notification as soon as this has been
effected, by returning to it one of the copies of the request with
the certificate on the reverse side duly completed.

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CHAPTER IV

REQUESTS FOR RECOVERY OR FOR PRECAUTIONARY
MEASURES

event within seven days of the expiry of that period, inform the
applicant authority in writing of the grounds for its failure to
comply with the time limit.

Article 12

Article 16

recovery or

Requests for

1.
for precautionary measures
referred to in Articles 6 and 13 respectively of Directive 76/
308/EEC shall be made out in writing in accordance with the
model in Annex III to this Directive.

Such requests, which shall include a declaration that the condi-
tions laid down in Directive 76/308/EEC for initiating the
mutual assistance procedure have been fulfilled, shall bear the
official stamp of the applicant authority and shall be signed by
an official thereof duly authorised to make such a request.

The instrument permitting enforcement shall accompany
2.
the request
for recovery or for precautionary measures. A
single instrument may be issued in respect of several claims
where they concern one and the same person.

For the purposes of Articles 13 to 20 of this Directive, all
claims covered by the same instrument permitting enforcement
shall be deemed to constitute a single claim.

Article 13

Requests for recovery or for precautionary measures may relate
to any person referred to in Article 4.

Article 14

If the currency of the Member State of the requested
1.
authority is different from the currency of the Member State of
the applicant authority, the applicant authority shall express
the amount of the claim to be recovered in both currencies.

2.
The rate of exchange to be used for the purposes of para-
graph 1 shall be the latest selling rate recorded on the most
representative exchange market or markets of the Member State
of the applicant authority on the date when the request for
recovery is signed.

Article 15

The requested authority shall,

in writing, as soon as
1.
possible and in any event within seven days of receipt of the
request for recovery or for precautionary measures:

(a) acknowledge receipt of the request;

(b) ask the applicant authority to complete the request if it
does not contain the information or other particulars
mentioned in Article 7 of Directive 76/308/EEC.

The applicant authority shall provide all information to which
it has access.

2.
If the requested authority does not take the requisite
action within the three-month period laid down in Article 8 of
Directive 76/308/EEC, it shall, as soon as possible and in any

Where, within a reasonable time having regard to the particular
case, all or part of the claim cannot be recovered or precau-
tionary measures cannot be taken, the requested authority shall
so inform the applicant authority,
indicating the reasons
therefor.

No later than at the end of each six-month period following
the date of acknowledgement of the receipt of the request, the
requested authority shall inform the applicant authority of the
state of progress or the outcome of the procedure for recovery
or for precautionary measures.

In the light of the information received from the requested
authority, the applicant authority may request the latter to re-
open the procedure for recovery or for precautionary measures.
That request shall be made in writing within two months of
the receipt of the notification of the outcome of that procedure,
and shall be treated by the requested authority in accordance
with the provisions applying to the initial request.

Article 17

1.
Any action contesting the claim or the instrument permit-
ting its enforcement which is taken in the Member State of the
applicant authority shall be notified to the requested authority
in writing by the applicant authority immediately after the
latter has been informed of such action.

2.
If the laws, regulations and administrative practices in
force in the Member State of the requested authority do not
permit precautionary measures or the recovery requested under
the second subparagraph of Article 12(2) of Directive 76/308/
EEC, the requested authority shall notify the applicant authority
to that effect as soon as possible and in any event within one
month of the receipt of the notification referred to in para-
graph 1.

3.
Any action which is taken in the Member State of the
requested authority for reimbursement of sums recovered or
for compensation in relation to recovery of contested claims
under the second subparagraph of Article 12(2) of Directive
76/308/EEC shall be notified to the applicant authority in
writing by the requested authority immediately after the latter
has been informed of such action.

The requested authority shall as far as possible involve the
applicant authority in the procedures for settling the amount to
be reimbursed and the compensation due. Upon a reasoned
request from the requested authority, the applicant authority
shall transfer the sums reimbursed and the compensation paid
within two months of the receipt of that request.

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Article 18

Article 20

1.
If the request for recovery or for precautionary measures
becomes devoid of purpose as a result of payment of the claim
or of its cancellation or for any other reason, the applicant
authority shall immediately inform the requested authority in
writing so that the latter may stop any action which it has
undertaken.

collected by the

Irrespective of any amounts
requested
authority by way of the interest referred to in Article 9(2) of
Directive 76/308/EEC, the claim shall be deemed to have been
the amount
recovered in proportion to the recovery of
expressed in the national currency of the Member State of the
requested authority, on the basis of the exchange rate referred
to in Article 14(2) of this Directive.

2. Where the amount of the claim which is the subject of
the request
for recovery or for precautionary measures is
adjusted for any reason, the applicant authority shall immedi-
ately inform the requested authority in writing, and if necessary
issue a new instrument permitting enforcement.

3.
If the adjustment entails a reduction in the amount of the
claim, the requested authority shall continue the action which
it has undertaken with a view to recovery or to the taking of
precautionary measures, but that action shall be limited to the
amount still outstanding.

If, at the time when the requested authority is informed of the
reduction in the amount of the claim, an amount exceeding the
amount still outstanding has already been recovered by it but
the transfer procedure referred to in Article 19 has not yet been
initiated, the requested authority shall repay the amount over-
paid to the person entitled thereto.

4.
If the adjustment entails an increase in the amount of the
claim, the applicant authority shall as soon as possible address
to the requested authority an additional request for recovery or
for precautionary measures.

That additional request shall, as far as possible, be dealt with by
the requested authority at the same time as the original request
from the applicant authority. Where, in view of the state of
progress of the existing procedure, consolidation of the addi-
tional request with the original request is not possible, the
requested authority shall be required to comply with the addi-
tional request only if it concerns an amount not less than that
referred to in Article 25(2).

In order to convert the adjusted amount of the claim into
5.
the currency of the Member State of the requested authority,
the applicant authority shall use the exchange rate used in its
original request.

Article 19

Any sum recovered by the requested authority,
including,
where applicable, the interest referred to in Article 9(2) of
Directive 76/308/EEC, shall be transferred to the applicant
authority in the currency of the Member State of the requested
authority. The transfer shall take place within one month of
the date on which recovery was effected.

CHAPTER V

TRANSMISSION OF COMMUNICATIONS

Article 21

All information communicated in writing pursuant to this
1.
Directive shall, as far as possible, be transmitted only by elec-
tronic means, except for:

(a) the request for notification referred to in Article 5 of Direc-
tive 76/308/EEC and the instrument or decision of which
notification is requested;

(b) requests

for

recovery or

for precautionary measures
referred to in Articles 6 and 13 respectively of Directive
76/308/EEC, and the instrument permitting enforcement.

2.
The competent authorities of the Member States may
agree to waive the communication on paper of the requests
and instruments specified in paragraph 1.

Article 22

Each Member State shall designate a central office with prin-
cipal responsibility for communication by electronic means
with other Member States. That office shall be connected to the
CCN/CSI network.

Where several authorities are appointed in a Member State for
the purpose of applying this Directive, the central office shall
be responsible for the forwarding of all communication by elec-
tronic means between those authorities and the central offices
of other Member States.

Article 23

1. Where the competent authorities of the Member States
store information in electronic data bases and exchange such
information by electronic means, they shall take all measures
necessary to ensure that any information communicated in
whatever form pursuant to this Directive is treated as confiden-
tial.

It shall be covered by the obligation of professional secrecy and
shall enjoy the protection extended to similar information
under the national law of the Member State which received it.

The competent authorities of the Member States may agree
different arrangements for the transfer of amounts below the
threshold referred to in Article 25(2) of this Directive.

2.
The information referred to in paragraph 1 may be made
available only to the persons and authorities referred to in
Article 16 of Directive 76/308/EEC.

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Such information may be used in connection with judicial or
administrative proceedings initiated for the recovery of levies,
duties, taxes and other measures referred to in Article 2 of
Directive 76/308/EEC.

Persons duly accredited by the Security Accreditation Authority
of the European Commission may have access to this informa-
tion only in so far as is necessary for the care, maintenance and
development of the CCN/CSI network.

3. Where the competent authorities of the Member States
communicate by electronic means, they shall take all measures
necessary
are duly
all
authorised.

communications

to ensure

that

Article 28

1.
If the requested authority decides to request reimburse-
ment arrangements it shall notify the applicant authority in
writing of the reasons for its view that recovery of the claim
poses a specific problem, entails very high costs or relates to
the fight against organised crime.

The requested authority shall append a detailed estimate of the
costs for which it requests reimbursement by the applicant
authority.

Article 24

2.
The applicant authority shall acknowledge receipt of the
request for reimbursement arrangements in writing as soon as
possible and in any event within seven days of receipt.

Information and other particulars
communicated by the
requested authority to the applicant authority shall be conveyed
in the official language or one of the official languages of the
Member State of the requested authority or in another language
agreed between the applicant and requested authorities.

Within two months of the date of acknowledgement of receipt
of the said request, the applicant authority shall
inform the
requested authority whether and to what extent it agrees with
the proposed reimbursement arrangements.

CHAPTER VI

ELIGIBILITY AND REFUSAL OF REQUESTS FOR ASSISTANCE

3.
If no agreement is reached between the applicant and
requested authority with respect to reimbursement arrange-
ments, the requested authority shall continue recovery proce-
dures in the normal way.

Article 25

1.
A request for assistance may be made by the applicant
authority in respect of either a single claim or several claims
where those are recoverable from one and the same person.

No request

2.
the total
amount of the relevant claim or claims listed in Article 2 of
Directive 76/308/EEC is less than EUR 1 500.

for assistance may be made if

CHAPTER VIII

FINAL PROVISIONS

Article 29

Article 26

If the requested authority decides, pursuant to the first para-
graph of Article 14 of Directive 76/308/EEC,
to refuse a
request for assistance, it shall notify the applicant authority in
writing of the reasons for the refusal. Such notification shall be
given by the requested authority as soon as it has taken its deci-
sion and in any event within three months of the date of
receipt of the request for assistance.

CHAPTER VII

REIMBURSEMENT ARRANGEMENTS

Article 27

Each Member State shall
inform the Commission before 15
March each year, as far as possible by electronic means, of the
use made of the procedures laid down in Directive 76/308/EEC
and of the results achieved in the previous calendar year, in
accordance with the model in Annex IV to this Directive.

Article 30

The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 30 April 2003 at the latest. They shall forthwith
inform the Commission thereof.

Each Member State shall appoint at least one official duly
authorised to agree reimbursement arrangements under Article
18(3) of Directive 76/308/EEC.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a refer-
ence on the occasion of their official publication. Member
States shall determine how such reference is to be made.

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Article 31

Article 33

The Commission shall communicate to the other Member
States the measures which each Member State takes for imple-
menting this Directive.

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

Each Member State shall notify the other Member States and
the Commission of the name and address of the competent
authorities for the purpose of applying this Directive, as well as
of the officials authorised to agree arrangements under Article
18(3) of Directive 76/308/EEC.

Directive 77/794/EEC is hereby repealed.

Article 32

References to the repealed Directive shall be construed as refer-
ences to this Directive.

This Directive is addressed to the Member States.

Article 34

Done at Brussels, 9 December 2002.

For the Commission

Frederik BOLKESTEIN

Member of the Commission

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ANNEX I

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ANNEX II

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ANNEX III

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