Proposal for a Directive of the European Parliament and of the Council amending Council Directive 77/799/EEC concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, certain excise duties and taxation of insurance premiums and Council Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products
Date: 2003-12-18
Institutions: European Commission
Subjects: administrative cooperation, direct tax, exchange of information, excise duty, insurance premium, tax

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 18.12.2003
COM(2003)797 final

2003/0309 (COD)
2003/0310 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on administrative cooperation in the field of excise duties

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 77/799/EEC concerning mutual assistance by the competent
authorities of the Member States in the field of direct taxation, certain excise duties and
taxation of insurance premiums and Council Directive 92/12/EEC on the general
arrangements for products subject to excise duty and on the holding, movement and
monitoring of such products

(presented by the Commission)

EN

  EN

EXPLANATORY MEMORANDUM

1.

INTRODUCTION

Mutual assistance between Member States is essential to ensure the proper operation
of the internal market, and to facilitate collection of taxes by Member States, equal
treatment of traders and effective combating of fraud.

For  mutual  assistance  to  be  effective,  Member  States  must  be  able  to  exchange,
easily  and  quickly,  spontaneously  or  on  request,  information  relating  to  particular
cases which cannot be dealt with by one Member State unaided without information
from one or more other Member States. In the field of excise duties the Commission,
which acts as guardian of the Treaties and regulator of the internal market, may also
need to have access to certain types of information in certain circumstances.

Hence  the  need  for  legal  rules  and  technical  tools  which  are  both  simple  and
effective.

2.

THE  PRESENT  LEGAL  INSTRUMENT  DOES  NOT  MEET  THE  NEEDS  OF  THE  INTERNAL
MARKET

In  the  excise  field  the  present  legal  basis  for  administrative  cooperation  between
2.1
Member  States  is  Directive  77/799/EEC  concerning  mutual  assistance  by  the  competent
authorities  of  the  Member  States  in  the  field  of  direct  and  indirect  taxation.1  When  it  was
adopted  it  did  not  cover  excise  duties.  They  were  brought  into  its  scope  by  Directive
92/12/EEC.2

Directive  77/799/EEC,  which  contains  a  range  of  general  and  formal  measures  on
information exchange,  does  not meet the  needs of the internal  market in  the  excise
field where precision, speed and flexibility are required.

Cooperation on excise duties is too centralised with too few direct contacts between
local and national anti-fraud agencies, standard practice being for information to be
exchanged between central liaison offices. This leads to inefficiencies, under-use by
officials and excessively long delays.

Cooperation  is  not  sufficiently  intensive  with  too  few  automatic  or  spontaneous
exchanges of information to detect and prevent fraud in intra-Community trade.

Finally, there is a lack of detailed rules in whole sectors of cooperation, including the
presence  of  foreign  officials  at  inspections,  organisation  of  multilateral  controls  or
the uses made of information provided by another Member State.

Furthermore,  the  fact  that  certain  provisions  governing  mutual  assistance  are
contained in Directive 92/12/EEC does not provide the accessibility, legal certainty
or  uniformity  which  national  authorities  and  economic  operators  have  the  right  to

1

2

OJ L 336, 27.12.1977, p. 15.
OJ  L  76,  23.3.1992,  p.1.  Directive  last  amended  by  Council  Directive  2000/47/EC  of  20  July  2000
(OJ L 193, 29.7.2000, p. 73).

2

 
                                                
expect.  Consequently  it  is  proposed  that  all  provisions  introducing  or  facilitating
administrative cooperation (including provisions governing the register of traders and
warehouses and the monitoring of movements of excisable  products)  be transferred
from  Directive  92/12/EEC  into  a  single  legal  instrument  incorporating  all  the
provisions of Directives 77/799/EEC and 92/12/EEC, but improving and simplifying
them  to  provide  users  with  a  single  and  effective  instrument  of  administrative
cooperation. This is the purpose of this proposal.

It  should  also  be  noted  that  a  draft  amendment  to  Directive  92/12/EEC  is  being
considered  to  make  it  possible  for  accompanying  administrative  documents  to  be
exchanged  electronically  and  to  ensure  consistency  between  excise  and  customs
legislation.

in 

Because  of 

increasing  fraud 

2.2
the
Directors-General  for  customs  and  taxation  decided  on  26  March  1997  to  set  up  an  ad  hoc
working party to analyse the situation in the tobacco and alcohol sector and propose solutions.
The  working  party  submitted  its  report  on  24  April  1998  and  this  was  accepted  by  the
Directors-General  for  customs  and  taxation.  It  was  approved  by  the  Ecofin  Council  on
19 May 1998.

the  movement  of  excisable  products, 

One  of  the  problems  identified  in  the  report  is  the  lack  of  coordination,  including
mutual assistance, between national authorities and between these authorities and the
Commission.  The  report  concludes  there  is  not  sufficient  direct  communication
between  authorities  to  ensure  the  effective  monitoring  of  movements  of  excisable
products from beginning to end. As in many cases information is exchanged too late,
it  is  impossible  to  effectively  combat  fraud.  These  deficiencies  lead  to  lack  of
coordinated action, which is seen by the report as a general structural weakness. The
report's  overall conclusion is that Directive  77/799/CEE  is  not  a  sufficiently  robust
legal framework for effective cooperation.

Consequently it recommends that legislative measures be adopted to improve mutual
assistance  and  administrative  cooperation  in  the  excise  field.  This  recommendation
covers all excisable products and not just tobacco and alcohol.

The  report's  main  recommendation  was  to  computerise  the  movement  and
surveillance  of  excisable  products.  The  Commission  has  given  priority  to  the
development of such a system.

However,  for  this  technical  side  to  work  there  must  be  a  system  of  administrative
cooperation  which  will  meet  current  and  future  needs  and  improve  and  simplify
communication  between  Member  States  and  between  Member  States  and  the
Commission through direct communication between administrative departments and
electronic systems.

The  computerised  system  under  development  could  be  used  as  a  vehicle  for
computerised  exchange  of  information  under  the  mutual  assistance  arrangements.
Electronic  information  exchange  would  have  the  same  legal  value  as  the  present
system  of  information  exchange  by  post  or  in  paper  form,  but  this  will  have  to  be
formalised in legislation.

3

 
Finally,  an  identical  exercise  was  undertaken  in  the  VAT  field.3  The  same  approach
2.3
has been used in  this proposal to ensure  consistency,  although  specific  measures  relating  to
excise duties have been incorporated.

3.

EXPLANATION OF THE PROPOSED REGULATION

To improve administrative cooperation in the excise field the Commission proposes
to strengthen  the current instrument (Directive 77/799/EEC)  by  introducing  a  more
clearly  defined  legal  framework  which  will  be  directly  applicable  in  all  Member
States.  The  proposal  defines  clear  and  binding  rules  for  cooperation  between
Member  States  to  ensure  more  direct  contacts  between  administrative  departments
for more effective and speedier  cooperation and more  frequent and faster  exchange
of  information  between  national  authorities  and  between  these  authorities  and  the
Commission in order to more effectively combat fraud.

3.1.

Chapter I – General provisions

3.1.1.

Article 1 – Objectives

This  Article reflects the fact that the scope of the  Regulation  will be widened so  it
will not simply apply to intra-Community transactions but will also define the rules
allowing  the  competent  authorities  of  the  Member  States  to  exchange  information
with the Commission.

It  also  sets  out  the  principle  that  the  Regulation  will  not  affect  the  application  in
Member States of the rules on judicial mutual assistance in criminal matters.

3.1.2.

Article 2 – Definitions

A number of definitions which are not contained in Directive 77/799/EEC have had
to be introduced as a result of the innovations introduced by this Regulation. These
are the "central liaison office", "liaison department", "competent official", "structured
automatic exchange", "automatic exchange", "computerised system on the movement
and surveillance of excisable products", "by electronic means", "SEED identification
number" and "administrative enquiry". Other definitions have been slightly altered.

3.1.3.

Article 3 – Decentralisation of administrative cooperation

As a general rule, all exchanges of information have to pass through the competent
authority  defined  in  Article  1  of  Directive  77/799/EEC.  If  this  procedure  is  not
observed,  the  information  exchanged  has  no  value  and  cannot  be  used  in  legal
proceedings.

However,  the  Commission  considers  that  direct  communication  between  officials
and  between  anti-fraud  units  has  considerable  advantages:  information  can  be
exchanged more quickly, both sides can more easily understand what information is
needed,  officials  are  more  motivated  and  scarce  human  resources  are  not  wasted
though unnecessary requests. Although the present legal framework authorises such

3

Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of
value added tax and repealing Regulation (EEC) No 218/92 (OJ L 264, 15.10.2003, p. 1).

4

 
                                                
contacts  between  officials,  Member  States  rarely  make  use  of  this  possibility  and
initiatives  in  this  area  are  often  very  disparate,  leading  to  a  lack  of  definition  or
consistency in procedures.

The  proposal  therefore  introduces  a  clear  legal  framework  for  decentralised
cooperation but also  gives central  liaison offices a pivotal role  and  formalises  their
introduction in the excise field.

The structure adopted by Article 3 is the following:

- At official level, information will continue to be exchanged through the competent
authorities,  but  in  future  this  will  be  a  single  authority  -  which  may  oversee  other
authorities - in each Member State.

-  Each  authority  will  designate  a  single  central  liaison  office  to  be  responsible  for
cooperation.  This  central  liaison  office  will  be  the  main  conduit  for  cooperation
(where the requesting authority does not know which local office to contact or where
a request is made to a local office which is unable to deal with it). It will also play a
central  role  in  the  automatic  and  spontaneous  communication  of  certain  types  of
information.

- Each authority may also designate liaison departments which will be authorised to
directly exchange information. Member States will obviously be free to interpret this
concept of  liaison  departments on a  case-by-case  basis  as  some  Member  States  are
larger than others.

-  Each  authority  may  also  designate  competent  officials  to  directly  exchange
information under the Regulation.

-  Where  information  is  exchanged  between  liaison  departments  or  between
competent  officials,  it  must  also  be  channelled  through  the  central  liaison  offices.
The  central  liaison  office  will  be  the  only  competent  authority  where  requests  for
assistance  require  action  outside  the  territorial  or  operational  jurisdiction  of  liaison
departments or competent officials.

-  Finally,  central  liaison  offices  will  be  responsible  for  keeping  the  lists  of  liaison
department  or  competent  officials  up  to  date  so  that  they  can  be  made  available  to
other central liaison offices.

3.1.4.

Article 4 – Interaction with criminal proceedings

Where the information requested involves cases where the representatives of national
authorities  are  undertaking  enquiries  on  behalf  of  or  for  the  judicial  authorities,
exchange  of  information  is  often  refused  or  seriously  delayed.  This  makes  it
impossible for the administrative authority of the requesting Member State to initiate
administrative  or  legal  proceedings  against  criminals  operating  on  its  territory  in
time.

Consequently  Article  4  defines  Member  States'  obligations  under 
these
administrative  mutual  assistance  arrangements  where  criminal  proceedings  are
involved, with due regard for the rules on judicial cooperation in criminal matters.

5

 
3.2.

Chapter II – Cooperation on request

3.2.1.

A single and more binding legal framework

Member  States  must  make  use  of  Article  2  of  Directive  77/799/EEC  for  any
information they require. Broadly, this allows the competent authority of a Member
State  to  request  the  competent  authority  of  another  Member  State  to  provide  any
information in a particular case which may assist it in establishing the correct amount
of excise  duty. The  Directive does  not  lay  down a  time  limit  for  responses  to  such
requests.

A Chapter governing all measures relating to exchanges on request will be added to
make  the  instrument  more  effective.  The  proposal  redefines  the  rights  and
obligations  of  Member  States  and  distinguishes  between  information  requests
(Section 1), requests for administrative enquiries (Section 2), the presence of officials
in  administrative  offices  and 
in  administrative  enquiries
(Section 4),  the  use  of  simultaneous  controls  (Section  5)  and  notification  requests
(Section  6).  Section  3  lays  down  a  three-month  time  limit  for  communication  of
information  from  the  date  of  receipt  of  a  request  (one  month  where  information  is
already available) but also allows other time limits in individual cases.

their  participation 

3.2.2.

Section 1: information requests (Article 2 of Directive 77/799/EEC) and requests for
administrative enquiries

Article 5(1) will in the future be the legal basis for all information requests.

Under paragraph 2, the requested authority will carry out administrative enquiries if
they are necessary to obtain the information requested.

For  this  purpose  paragraph  3  provides  that  information  requests  may  contain  a
reasoned  request  for  an  administrative  enquiry.  The  requested  Member  State  may,
however,  decide  that  no  enquiry  is  necessary  but  must  immediately  inform  the
requesting Member State of the reasons why it has decided not to carry out such an
enquiry.

Irrespective  of whether  it  receives  a  simple  information  request  or  a  request  for  an
administrative enquiry, the requested authority will proceed as though it were acting
on  its own account or at the  request  of  another  authority  in  its  own  Member  State.
However  paragraph  4  must  be  read  in  conjunction  with  Article  32  which  gives  the
requested authority the right to refuse to carry out enquiries or to provide information
in  a  number  of  circumstances:  where  the  administrative  work  involved  would  be
disproportionate,  the  requesting  authority  has  not  exhausted  the  usual  sources  of
information, the legislative or administrative practices of the Member State requested
to provide the information do not authorise its tax authorities to carry out enquiries or
to  gather  or  use  information  for  their  own  needs  or  the  provision  of  information
would  be  prejudicial  to  public  policy  or  lead  to  the  disclosure  of  a  commercial,
industrial or professional secret or of a commercial process.

Article  6  lays  down  that  requests  for  information  and  administrative  enquiries  be
forwarded by means of a standard form. Past experience suggests that it would take
an extremely long time for 15 Member States to agree on a standard form and it is

6

 
therefore  proposed  that  this  be  adopted  under  the  procedure  provided  for  in
Article 35(2) (regulatory committee procedure).

The  movement  verification  form  initially  provided  for  in  Article  15b  of  Directive
92/12/EEC and incorporated into the scope of this Regulation is a simplified form of
information request. This provision will remove any ambiguity about the role of this
form  and the procedure  it  covers.  It is  also  proposed  to  incorporate  the  contents  of
Article 19(6) of Directive 92/12/EEC, which covers spot checks, into the body of the
Regulation as these are undertaken on the basis of the movement verification form.

Finally, Article 7 states that information or enquiries may be requested in the form of
reports, statements or any other documents or certified true copies or extracts thereof.
Original  documents  may  be  provided  if  the  provisions  in  force  in  the  requested
Member State allow.

3.2.3.

Section 2: time limit for providing information

The Commission proposes a maximum time limit of three months for the provision
of information.

In special cases, in particular complex fraud cases involving several Member States,
another time limit may be set by common consent.

Where  the  requested  authority  is  unable  to  respond  to  the  request  within  the  time
limit laid down, it must inform the requesting  authority  immediately of the  reasons
for its failure to do so and indicate when it is likely to be able to respond.

3.2.4.

Section  3:  presence  of  officials  from  the  tax  authorities  of  other  Member  States
(Article 6 of Directive 77/799/EEC)

The  Fiscalis  2007  programme4  provides  Community  funding  for  multilateral
controls. However, Member States must use the facility provided for in Article 6 of
Directive 77/799/EEC in order to take advantage of this funding. Under this Article
some  Member  States  have  authorised  officials  from  other  Member  States  to  enter
their  territory.  However, very  few  Member  States  have  incorporated  this  facility  in
their national legislation  and  in practice the vast  majority of  Member  States  do not
authorise  foreign  officials  to  enter  their  territory  during  controls  unless  the  person
liable  for  payment  of  excise  duties  gives  his  or  her  consent.  Such  consent  is,
however, unlikely to be forthcoming as the whole purpose of a control is to establish
whether  any  fraud  has  been  committed.  Furthermore,  a  few  Member  States  even
formally prohibit officials from other Member States from taking part in enquiries on
their territory on the grounds of the legal problems this would involve.

Yet,  the  presence  of  officials  from  another  Member  State  in  administrative  offices
and  their  participation  in  administrative  enquiries  may  be  very  useful,  particularly
where there is evidence of serious irregularities or fraud in more than one Member
State or in cases which are so complex that their presence would be desirable. This is
why  Article  14  of  the  proposal  allows  officials  from  the  tax  authorities  of  one

4

Decision  No  2235/2002/EC  of  the  European  Parliament  and  of  the  Council  of  3  December  2002
adopting a Community programme to improve the operation of taxation systems in the internal market
(Fiscalis programme 2003-2007) (OJ L 341, 17.12.2002, p. 1).

7

 
                                                
Member State to enter the territory of another Member State where both States agree
that this is necessary. Articles 11 and 12 also introduce provisions defining the rights
and obligations of all parties and the procedures to be observed by national officials
carrying out enquiries in another Member State.

3.2.5.

Section 4: use of simultaneous controls

The Commission considers that simultaneous controls should form an integral part of
Member States' standard control plans. Certain multilateral controls will be financed
by  the  Fiscalis  2007  programme  to  encourage  Member  States  to  include
simultaneous controls in their control plans. The Fiscalis 2007 Decision only provides
a legal basis  for the  exchange of information  in  multilateral  controls.  Officials  taking
part in such controls must therefore use one of the legal bases authorising the exchange
of tax information (Directive 77/799/EEC).

This proposal also allows Member States to use simultaneous controls whenever they
appear  more  effective  than  national  controls  (Article  14).  It  also  introduces
provisions defining the rights and obligations of all the parties involved and outlines
the procedures to be used (Article 14).

3.2.6.

Section 5: notification requests

Article  5  of  Directive  76/308/EEC5  allows  the  addressee  to  be  notified  of  all
instruments and decisions, including those of a judicial nature, relating to a claim or
its recovery from the Member State in which the requesting authority is situated.

However,  since  the  cases  in  question  do  not  yet  involve  claims,  the  present  legal
framework  does  not  provide  for  the  notification  of  acts  or  decisions  by  the  tax
authorities  of  other  Member  States.  Article  15  of  the  proposal  therefore  defines  a
clear  legal  basis  for  such  notification.  Articles  16  and  17  set  out  the  relevant
implementing provisions.

3.3.

Chapter III – Exchange of information without prior request

3.3.1.

Articles 18 to 22: Structured automatic and automatic exchanges of information  in
risk sectors (Articles 3 and 4 of Directive 77/799/EEC)

Although  most  Member  States  support  the  idea  of  more  frequent  exchanges  of
pertinent  information,  the  Commission  has  found  that  such  exchanges  are  still  far
from common practice. Article 18 defines certain situations in which Member States
will  be  required  to  exchange  information  in  order  to  facilitate  detection  and
prevention of fraud in intra-Community trade:

(a) situations where fraud is suspected in another Member State;

Example:  as  copy  3  of  the  accompanying  administrative  document  has  not  been
returned, it is suspected that the excisable goods dispatched have been diverted in the
Member State of destination;

5

Council  Directive  76/308/EEC  of  15  March  1976  (OJ  L  73,  19.3.1976,  p.  18),  last  amended  by
Directive 2001/44/EC (OJ L 175, 28.6.2001, p. 17).

8

 
                                                
(b) situations where there is a serious risk of fraud in another Member State;

Example: excise duties are paid in a Member State where the rate is low and goods
are diverted to the market of the Member State where the rate is high;

(c)  situations  where  fraud  is  discovered  in  the  territory  of  a  Member  State  which
could have ramifications in another Member State;

Example:  the  Member  State  which  discovers  the  irregular  physical  presence  of
excisable products suspects that fraud might have committed in the Member State of
departure  involving  an  AAD  for  a  non-existent  trader  or  a  trader  who  has  no
knowledge of the transaction.

The  present  legal  framework  clearly  does  not  cover  any  of  these  situations.  At  the
moment  there  is  no  real  obligation  on  Member  States  to  automatically  or
spontaneously  exchange  information.  It  is  therefore  essential  that  the  categories  of
information which must be exchanged be defined in Community legislation itself.

The proposal therefore provides for two types of spontaneous information exchange:
structured  automatic  exchanges  and  automatic  exchanges.  The  difference  between
structured  automatic  exchanges  and  automatic  exchanges  lies  in  the  ability  of  the
authority responsible for sending the information to collect, at regular intervals, the
information  to  be  exchanged.  A  Member  State  where  there  is  no  obligation  on
persons liable for excise duty to provide such information will obviously be unable to
automatically  exchange  information  and  an  exchange  would  in  this  case  be  a
structured automatic exchange.

The  proposal  defines  a  framework  which  is  both  flexible  and  effective  for  the
exchange of information between Member States. All the proposal does is define the
circumstances  where  information  has  to  be  exchanged.  The  exact  categories  of
information for  each Member State, whether exchanges  are  automatic  or  structured
automatic  exchanges  and,  where  appropriate,  the  frequency  of  exchanges  will  be
decided under the procedure provided for in Article 35(2).

Decisions taken  under  the committee procedure may under no circumstances  affect
the  obligations  of  persons  liable  for  excise  duty  under  Article  24  of  Directive
92/12/EEC  and  therefore  concern  information  which  is  already  available  to  tax
authorities.

3.4.

Chapter IV – Storage and exchange of information specific to intra-Community
transactions

The  four  Articles  of  this  Chapter  lay  down  the  general  principles  governing  the
arrangements  and  time  limits  for  storage  of  information.  They  also  define  how  the
information held should be exchanged.

The  register  of  traders  and  warehouses  (SEED),  the  early  warning  system  and  the
movement  verification  system  (MVS)  introduced  by  Directive  92/12/EEC  will  be
removed from the Directive by amendment (repealing Articles 15a, 15b and 19(6) of
the  Directive)  and incorporated into this  Regulation after  a  review  of  their  content.
The objective is to make them an instrument of administrative cooperation.

9

 
Article  24  introduces the principle of  an early  warning  system.  Article  26  provides
for  the  use  of  the  computerised  system  referred  to  in  the  first  paragraph  of  this
Article,  once  it  becomes  operational,  for  exchanges  of  information  under  this
Regulation.

3.5.

Chapter V – Relations with the Commission

The  aim  of  the  proposal  is  to  put  in  place  effective  arrangements  for  mutual
assistance  and  information  exchange  which  will  prevent  fraud  in  the  intra-
Community movement of excisable products. It gives the Commission responsibility
for  overseeing  administrative  cooperation  but  does  not  in  any  way  give  the
Commission an operational role in the detection and combating of tax fraud.

However,  because  of  the  intra-Community  dimension  of  fraud  involving  excise
duties,  it  is  essential  that  it  be  tackled  at  Community  level  through  the  combined
efforts  of  the  Member  States  and  the  Commission.  Although  responsibility  for  the
measures  required  to  prevent  fraud  in  intra-Community  movements  of  excisable
products lies with the Member States, the Commission will play a coordinating and
facilitating role.

Consequently it is explicitly stated that Member States must provide all the statistical
information  needed  for  such  an  evaluation  and  the  data  to  be  provided  will  be
defined under the committee procedure.

Member States must also provide any other information concerning the methods and
practices  used  or  presumed  to  be  have  been  used  to  contravene  excise  duty
legislation so that deficiencies or weaknesses can be identified in the administrative
cooperation arrangements under this Regulation or under excise legislation.

It must also be spelt out that Member States must also provide the Commission, at its
request,  with  detailed  information  on  intra-Community  movements  of  excisable
products where these movements are covered by customs procedures.

Finally, any other information, including information on particular cases, should be
supplied to the Commission on a voluntary basis. The Commission will be required
to forward this information to the competent authorities of the other Member States
concerned which have not yet received such information.

3.6.

Chapter VI – Exchange of information with non-EU countries

The  present  legal  framework  does  not  provide  a  legal  basis  for  the  exchange  of
information  with  non-EU  countries.  Where  excise  duty  fraud  involves  import  or
export operations use may be made of customs cooperation instruments.

Information  from  non-EU  countries  may,  however,  be  useful  to  supplement
information available at national level. Consequently Article 28(1) lays down a legal
basis under which any Member State may obtain information from a non-EU country
under a bilateral agreement. Where information is of Community interest it may also
be forwarded to the Commission.

Article  28(2)  states  that  information  obtained  under  this  Regulation  may  be
communicated  to  a  non-EU  country  with  the  consent  of  the  competent  authorities
which provided such information.

10

 
3.7.

Chapter VII – Conditions governing the exchange of information

3.7.1.

Article 29: Exchanges in electronic form

Under  this  Article  information  is  provided,  as  far  as  possible,  in  electronic  form
according to the arrangements to be adopted under the committee procedure.

3.7.2.

Article 30: Translations

Requests for assistance and supporting documents will be drawn up in any language
chosen  by  common  consent  and  may  be  accompanied  by  a  translation  into  the
official  language(s)  of  the  requested  authority  but  only  in  specific  substantiated
cases.

The aim of this provision is to facilitate and speed up the exchange of information.

3.7.3.

Article 31: Limits on information exchange

to  provide 

information  where 

Under this Article the requested authority has the right to refuse to carry out enquires
or 
the  administrative  burden  would  be
disproportionate, the requesting  authority  has failed  to exhaust the usual sources of
information, the legislative or administrative practices of the Member State requested
to provide the information do not authorise its tax authorities either to carry out such
enquires  or  to  gather  or  use  this  information  for  its  own  purposes,  or  where
transmission  of  this  information  would  be  contrary  to  public  policy  or  lead  to  the
disclosure  of  a  commercial,  industrial  or  professional  secret  or  of  a  commercial
process.

Paragraph  2  has  been  added  to  align  Article  31  of  this  Regulation  on  Article 18  of
Directive 76/308/EEC which allows Member  States to  agree to reimburse the  costs
actually  incurred  where  there  are  particular  problems  or  the  costs  involved  are
excessively high or are incurred in combating organised crime.

Article  31(4)  of  this  proposal  and  Article  14  of  Directive  76/308/EEC  provide  that
the requested authority must inform the requesting authority and the Commission of
the reasons for refusing a request for mutual assistance.

3.7.4.

Article  32(1)  and  (2):  Limits  on  the  use  of  information  (Article  7(1)  and  (3)  of
Directive 77/799 EEC)

Under Article 7(1) of Directive 77/799/EEC information from the requested Member
State  may  be  used  without  restriction  in  the  requesting  Member  State  only  for
administrative  and  tax  purposes.  In  practice  this  Article  has  been  interpreted  in
different  ways  by  Member  States.  According  to  some  Member  States,  the  explicit
authorisation of the requested Member State must be obtained if such information is
to  be  disclosed  publicly  in  judicial  proceedings.  According  to  others,  tacit
authorisation is sufficient.

Article  32  indicates  that  information  communicated  in  any  form  under  this
Regulation  is  confidential.  However  some  information  may  be  used  for  judicial  or
administrative proceedings involving sanctions initiated as a result of infringements
of tax law.

11

 
It may also be used for the purposes of establishing the assessment base, collection
and control of excise duties and monitoring of movements of excisable products.

Such  information  may  also  be  used  to  determine  other  levies,  duties  or  charges
covered by Article 2 of Directive 76/308/EEC of 15 March 1976. This provision is
consistent  with  the  recommendation  of  the  High-Level  Working  Group  on
coordination between tax and customs policies that was set up to examine whether a
system  for  the  exchange  of  information  between  the  customs  and  tax  authorities
could  be  introduced.  This  provision  will  provide  the  legal  basis  for  exchanges  of
information relating to excise duties. It will also provide a legal basis for exchanges
between the excise authorities and other tax authorities in the same Member State.

Paragraph  3  also  limits  access  to  information  at  Community  level  to  persons  duly
accredited by the Security Accreditation Authority of the European Commission only
in so far is necessary for the maintenance and development of the CCN/CSI network.

3.7.5.

Article  32(3):  Need  for  the  consent  of  the  requested  authority  to  communicate
information to another Member State (Article 7(4) of Directive 77/799/EEC)

Article 7(4) of Directive 77/799/EEC defines the procedure under which the consent
of  the  Member  State  providing  the  information  must  be  obtained  for  such
information  to  be  made  available  to  another  Member  State.  These  procedures  may
prevent  or  delay  transmission  of  information  to  the  Member  States  where  it  is
needed.

Article  32(3)  no  longer  requires  such  consent.  Where  the  requesting  authority
considers  that  the  information  it  has  received  from  the  requested  authority  may  be
useful to the competent authorities of a non-EU country it may transmit it to them.

3.7.6.

Article 32(4): Obstacles to the exchange of personal data

Several  Member  States  have  problems  in  exchanging  personal  data  because  of  the
restrictions  enshrined  in  their  national  legislation.  They  have  indicated  that  data
protection rules severely restrict the possibility of information exchange. They have
also  pointed  out  that  implementation  of  Directive  95/46/EC  on  the  protection  of
individuals with regard to the processing of personal data and on the free movement
of such data 6may also be an obstacle to the exchange of personal data in some cases,
even  where  fraud  has  been  identified,  or  an  even  greater  obstacle  in  cases  where
there is evidence that fraud is very likely to have been committed.

Member  States  have  therefore  to  rely  on  Article  13  of  the  above  Directive,  which
provides for derogations from the normal rules to safeguard the financial interests of
a  Member  State  (including  tax  interests).  Consequently  Article  32(4)  provides  that
Member  States  may  restrict  the  scope  of  the  obligations  and  duties  defined  in
Articles 6(1)  to  10,  Article  11(1)  and  Articles  12  and  21  of  Directive  95/46/EC  to
ensure that their personal data protection laws do not hinder the effective operation
of this Regulation.

In some Member States the person concerned must be informed of any exchange of
information by law. If fraud is involved such notification would obviously make any

6

OJ L 281, 23.11.1995, p. 31.

12

 
                                                
action  less  effective.  The  fact  that  some  Member  States  systematically  inform  the
person concerned  of  any requests for information  discourages other Member  States
from  using  the  mutual  assistance  arrangements  when  they  suspect  fraud  has  been
committed.

3.7.7.

Article 33: Evidence

Article  33  indicates  that  reports,  statements  or  any  other  documents,  certified  true
copies  and  any  information  obtained  by  officials  of  the  requested  authority  and
communicated to the requesting authority may be used as evidence by the competent
bodies of the requesting authority on the same basis as similar national documents.

3.7.8.

Article 34

The  purposes  of  this  provision  is  to  ensure  effective  coordination  at  national  and
Community level by requiring Member States to take all measures necessary to this
end.

3.8.

Chapter VIII: Final provisions

3.8.1.

Articles 35 and 36: Consultation and committee procedures

The measures required to implement this Regulation are of a general scope and their
purpose  is  to  implement  the  core  provisions  of  the  basic  instrument.  Consequently
the  regulatory  committee  procedure  provided  for  in  Article  5  of  Council  Decision
1999/468/EC  of  28  June  1999  laying  down  the  procedures  for  the  exercise  of
implementing powers conferred on the Commission must be used.

3.8.2.

Article 37: Report by the Commission to the European Parliament and the Council

The  frequency  at  which  the  Commission  has  to  report  to  the  European  Parliament
and the Council is extended from two to five years.

3.8.3.

Article  38:  Applicability  of  wider  provisions  on  mutual  assistance
(Article 11 of Directive 77/799/EEC)

Paragraph  1  of  this  Article  corresponds  to  Article  11  of  Directive  77/799/EEC  and
paragraph 2 to Article 9(3). The wording has been slightly changed.

4.

EXPLANATION OF THE PROPOSED DIRECTIVE

Since all parts of Directive 77/799/EEC concerning excise duties have be replaced these will
now be excluded from the scope of the Directive.

Directive 92/12/EEC must also be amended to remove from its scope Articles 15a, 15b and
19(6)  which  will  be  incorporated,  after  being  amended,  in  the  proposed  Regulation  on
administrative cooperation in the field of excise duties.

5.

CONCLUSION

The purpose of this proposal is to strengthen cooperation between tax authorities by providing
them with a simple and effective legal framework to combat fraudsters on equal terms.

13

 
The Commission is submitting this proposal under Article 95 of the Treaty as it considers that
the measures proposed are not tax harmonisation measures, their aim being simply to ensure
the proper functioning of the internal market as regards the exchange of information between
Member States in the excise field.

The proposal does not seek to change the obligations of persons liable for excise duties or to
change  the  rules  governing  the  implementation  of  legislation  in  this  field.  Its  objective  is
simply  to  adapt  administrative  cooperation  arrangements  to  the  challenges  of  the  internal
market.

Article 95 forms the legal basis for the approximations of laws, regulations and administrative
provisions  of  Member  States  that  directly  affect  the  establishment  or  functioning  of  the
common market.

In accordance with paragraph 2 of Article 95, paragraph 1 of that Article does not apply to tax
provisions which are governed by Article 93.

The Commission considers  the  derogation  provided  for  in  paragraph  2  of  Article  95  cannot
exclude the application of the general rule laid down in paragraph 1 of this Article since tax
provisions are not the principle objective of the measure proposed.

The aim of this Regulation is simply to facilitate administrative cooperation between Member
States  by  laying  down  common  rules  for  the  exchange  of  information  and  access  to  such
information.  The  fact  that  the  content  of  this  information  may  be  useful  for  the  correct
assessment  and  collection  of  excise  duties  does  not  mean  that  taxation  is  its  principal
objective. It is simply a consequence of it.

14

 
2003/0309 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on administrative cooperation in the field of excise duties

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,7

Having regard to the opinion of the European Economic and Social Committee,8

Acting in accordance with the procedure laid down in Article 251 of the Treaty,9

Whereas:

(1)

(2)

(3)

(4)

(5)

7

8

9

10

Cross-border  fraud  in  the  European  Union  has  serious  consequences  for  national
budgets  and  may  lead  to  distortions  of  competition  in  movements  of  excisable
products. It therefore has an impact on the operation of the internal market.

Close cooperation is required between the administrative authorities of each Member
State  responsible  for  implementing  the  measures  adopted  in  this  field  in  order  to
combat excise fraud.

It is therefore essential to define the rules under which the administrative authorities of
the  Member  States  must  afford  each  other  mutual  assistance  and  cooperate  with  the
Commission  to  ensure  that  the  rules  relating  to  the  movement  of  excisable  products
and the collection of excise duties are correctly applied.

Mutual  assistance  and  administrative  cooperation  in  the  field  of  excise  duties  are
governed by Council Directive 77/799/EEC of 19 December 1977 concerning mutual
assistance  by  the  competent  authorities  of  the  Member  States  in  the  field  of  direct
taxation, certain excise duties and taxation of insurance premiums.10

Although this legal instrument has proved to be effective, it will not  be able to cope
with  new administrative  cooperation  imperatives  resulting  from  increasing  economic
integration within the internal market.

OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ  L  336,  27.12.1977,  p.  15.  Directive 
(OJ L 264, 15.10.2003, p. 23).

15

last 

amended  by  Directive  2003/93/EC

 
                                                
(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

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
products11  also  introduced  a  number  of  information  exchange  instruments.  Their
procedures will have to be defined within a general legal framework for administrative
cooperation in the field of excise duties.

There  is  also  a  need  for  clearer  and  more  binding  rules  on  cooperation  between
Member  States  as  the  rights  and  obligations  of  all  the  parties  concerned  are  not
sufficiently defined.

There are not sufficient direct contacts between local or national anti-fraud agencies as
standard  practice  is  for  information  to  be  communicated  between  central  liaison
offices.  This  leads  to  inefficiencies,  under-use  of  the  administrative  cooperation
arrangements and excessive delays in communication of information. Provision must
therefore  be  made  for  more  direct  contacts  between  administrative  departments  to
improve and speed up cooperation.

There  is,  finally,  a  need  for  closer  cooperation  as,  with  the  exception  of  movement
verification  under  Article  15b  of  Directive  92/12/EEC,  there  are  few  automatic  or
spontaneous  exchanges  of  information  between  Member  States.  The  exchange  of
information  between  national  authorities  and  between  those  authorities  and  the
Commission  must  be  more  intensive  and  speedier  if  fraud  is  to  be  effectively
combated.

There is consequently a need for a specific instrument in the field of excise duties to
incorporate the provisions of Directive 77/799/EEC in this field. This instrument must
also  focus  on  the  areas  where  cooperation  between  Member  States  can  be  improved
through  the  introduction  and  improvement  of  systems  for  the  transmission  of
information on the movement of excisable products.

It was not the objective of Directive 77/799/EEC to harmonise tax provisions. Its aim
was  to  ensure  the  proper  functioning  of  the  internal  market  by  facilitating
administrative  cooperation  between  national  authorities  in  the  field  of  indirect
taxation. This Regulation has the same aim.

This Regulation must not hamper other Community  measures to combat fraud in the
field of excise duties.

This  Regulation  incorporates,  and  defines,  the  arrangements  contained  in  Directive
92/12/EEC  to  facilitate  administrative  cooperation  between  Member  States  (these
include the register of traders concerned and premises and the movement verification
system).  This  Regulation  also  introduces  an  early  warning  system  between  Member
States.

(14)

For  the  purposes  of  this  Regulation  it  is  appropriate  to  limit  certain  rights  and
obligations  laid  down  by  Directive  95/46/EC  of  the  European  Parliament  and  of  the
Council  of  24  October  1995  on  the  protection  of  individuals  with  regard  to  the

11

OJ  L  76,  23.3.1992,  p.  1.  Directive  last  amended  by  Regulation  (EC)  No  807/2003  (OJ  L  122,
16.5.2003, p. 36).

16

 
                                                
(15)

(16)

processing of personal data and on the free movement of data,12 in order to safeguard
the interests referred to in Article 13(1)(e) of that Directive.

The measures necessary for the implementation of this Regulation in compliance with
Council  Decision  1999/468/EC  of  28 June  1999  laying  down  the  procedures  for  the
exercise of implementing powers conferred on the Commission13 must be adopted.

The  objectives  of  these  measures  to  simplify  and  strengthen  administrative
cooperation between Member States cannot be achieved by the Member States alone,
and  a  harmonised  approach  is  required,  and  can  be  better  undertaken  at  Community
level  in  view  of  the  uniformity  and  effectiveness  desired.  The  Commission  may
therefore take measures in accordance with the principle of subsidiarity laid down in
Article 5 of the Treaty. In accordance with this principle this Regulation does not go
beyond that which is required to attain these objectives.

(17)

This Regulation respects the fundamental rights and observes the principles which are
recognised by the Charter of Fundamental Rights of the European Union,

HAVE ADOPTED THIS REGULATION:

Chapter I

General provisions

Article 1

1.

This Regulation lays down the conditions under which the administrative authorities
responsible in the Member States for implementing legislation on excise duties are to
cooperate  in  exchanging  any  useful  information  with  each  other,  and  with  the
Commission, in order to ensure compliance with that legislation.

To that end, it lays down rules and procedures enabling the competent authorities of
the  Member  States  to  cooperate  and  to  exchange  with  each  other,  and  with  the
Commission, any information that may help them to correctly assess excise duties.

The  Regulation  also  lays  down  rules  and  procedures  governing  the  exchange  of
certain  types  of  information  by  electronic  means,  and  in  particular  that  concerning
intra-Community trade in excisable products.

2.

This Regulation shall not affect the application in the Member States of the rules on
mutual judicial assistance in criminal matters.

12

13

OJ L 281, 23.11.1995, p. 31.
OJ L 184, 17.7.1999, p. 23.

17

 
                                                
For the purposes of this Regulation:

Article 2

1)

2)

3)

4)

5)

6)

"competent  authority"  means 
Article 3(1);

the  authority  designated 

in  accordance  with

"requesting  authority"  means  the  central  liaison  office  of  a  Member  State  or  any
liaison department or competent official of that Member State requesting assistance
on behalf of the competent authority;

"requested  authority"  means  the  central  liaison  office  of  a  Member  State  or  any
liaison department or competent official of that Member State receiving a request for
assistance on behalf of the competent authority;

"structured automatic exchange" means the systematic communication of predefined
information,  without  prior  request,  to  another  Member  State  as  and  when  that
information becomes available;

"automatic  exchange"  means 
the  systematic  communication  of  predefined
information,  without  prior  request,  to  another  Member  State  at  pre-established
regular intervals;

"computerised system" means the computerised system for monitoring the movement
of  excisable  products  set  up  by  Decision  No  1152/2003/EC  of  the  European
Parliament and of the Council of 16 June 2003;14

7)

"person" means:

a)

b)

c)

a natural person;

a legal person;

where the legislation in force so provides, an association of persons recognised
as  having  the  capacity  to  perform  legal  acts  but  lacking  the  legal  status  of  a
legal person;

8)

9)

10)

11)

"to grant access" means to authorise access to the relevant electronic database and to
obtain data by electronic means;

"by  electronic  means"  means  using  electronic  equipment  for  the  processing
(including  digital  compression)  and  storage  of  data,  and  employing  wires,  radio
transmission, optical technologies or other electromagnetic means;

"SEED identification number" means the number provided for in Article 24(2)(a) of
this Regulation;

"VAT identification number" means the number provided for in Article 22(1)(c), (d)
and (e) of Council Directive 77/388/EEC;15

14

15

OJ L 162, 1.7.2003, p. 5.
OJ L 145, 13.6.1977, p. 1.

18

 
                                                
12)

13)

14)

1.

2.

3.

4.

"intra-Community  movement  of  excisable  products"  means  the  movement  between
two or more Member States of excisable products under the suspension arrangements
for  excise  duties  within  the  meaning  of  Title  III  of  Directive  92/12/EEC  or  of
excisable products released for consumption within the meaning of Articles 7 to 10
of Directive 92/12/EEC;

"administrative  enquiry"  means  all  the  controls,  checks  and  other  action  taken  by
officials or the competent authorities in the performance of their duties with a view
to ensuring the proper application of excise legislation;

"CCN/CSI  network"  means 
the  common
communication  network  (CCN)  and  common  system  interface  (CSI),  developed  by
the  Community  to  ensure  all  transmissions  by  electronic  means  between  the
competent authorities in the area of customs and taxation.

the  common  platform  based  on 

Article 3

Each Member State shall inform the other Member States and the Commission of the
single  competent  authority  it  has  designated  as  the  authority  in  whose  name  this
Regulation is to be applied, whether directly or by delegation.

Each  Member  State  shall  designate  a  central  liaison  office  to  which  principal
responsibility shall be delegated:

(a) for contacts with other Member States in the field of administrative cooperation;

(b) management and surveillance of the procedures and systems for the movement of
excisable  products  provided  for  by  Community  legislation,  and  in  particular  the
electronic register of data provided for in Article 23;

(c) the early warning system provided for in Article 24;

(d) verification request to or from other Member States provided for in Article 25;

(e) any exchange of information on movements of excisable products.

It shall inform the  Commission and the competent authorities  of  the  other  Member
States thereof.

The  competent  authority  of  each  Member  State  may  also  designate  liaison
departments  other  than  the  central  liaison  office  to  directly  exchange  information
under  this  Regulation.  These  liaison  departments  shall  consist  of  any  office  with
specific territorial responsibility or specialised operational responsibility. The central
liaison office shall be responsible for keeping the list of these departments up to date
and making it available to central liaison offices.

The  competent  authority  of  each  Member  State  may  also  designate  under  the
conditions laid down by it competent officials to directly exchange information under
this  Regulation.  When  it  does  so,  it  may  limit  the  scope  of  such  delegation.  The
central liaison office shall be responsible for keeping the list of those officials up to
date and making it available to the central liaison offices of the other Member States
concerned.

19

 
5.

6.

7.

The officials exchanging information under Articles 11 and 14 shall be deemed to be
competent officials for this purpose, in accordance with the conditions laid down by
the competent authorities.

Where  liaison  departments  or  competent  officials  send  or  receive  requests  for
assistance or responses to such requests for assistance, they shall inform the liaison
office of their Member State under the conditions laid down by the latter.

Where  liaison  departments  or  competent  officials  receive  requests  for  assistance
requiring  action  outside  their  territorial  or  operational  jurisdiction,  they  shall
immediately  forward  them  to  the  central  liaison  office  of  their  Member  State  and
inform the requesting authority. In such cases, the time limits laid down in Article 8
shall  begin  on  the  day  following  that  on  which  the  request  for  assistance  was
forwarded to the central liaison office.

Article 4

The  obligation  to  provide  assistance  under  this  Regulation  shall  not  cover  the  provision  of
information or  documents  obtained  by  the  administrative  authorities  referred  to  in  Article  1
acting with the authorisation or at the request of the judicial authority.

However,  where  a  competent  authority  has  the  powers  in  accordance  with  national  law  to
communicate  the  information  referred  to  in  the  first  paragraph,  this  may  be  communicated
under the administrative cooperation arrangements provided for in this Regulation. Any such
communication must have the prior authorisation of the judicial authority if such authorisation
is required under national law.

Chapter II

Cooperation on request

SECTION 1

REQUEST FOR INFORMATION AND FOR ADMINISTRATIVE ENQUIRIES

Article 5

1.

2.

At the request of the requesting authority, the requested authority shall communicate
the  information  referred  to  in  Article  1,  including  any  information  relating  to  a
specific case or cases.

For  the  purposes  of  forwarding  the  information  referred  to  in  paragraph  1,  the
requested  authority  shall  arrange  for  the  conduct  of  any  administrative  enquiries
necessary to obtain such information.

20

 
3.

4.

The request referred to in paragraph 1 may include a reasoned request for a specific
administrative enquiry. If the Member State decides that no administrative enquiry is
necessary, it shall immediately inform the requesting authority of the reasons for its
decision.

In order to obtain the information requested or to conduct the administrative enquiry
requested,  the  requested  authority  or  the  administrative  authority  to  which  it  has
recourse  shall  proceed  as  though  acting  on  its  own  account  or  at  the  request  of
another authority in its own Member State.

Article 6

Requests for information and for administrative enquiries pursuant to Article 5 shall be sent
using a standard form adopted in accordance with the procedure referred to in Article 35(2).
However,  under  the  circumstances  referred  to  in  Article  25,  the  standard  movement
verification document for excisable products provided for in Article 25(3) of this Regulation
shall be a simplified form of information request.

Article 7

1.

2.

At the request of the requesting authority, the requested authority shall communicate
to it any pertinent information in its possession in the form of reports, statements and
any  other  documents,  or  certified  true  copies  or  extracts  thereof  and  the  results  of
administrative enquiries.

Original  documents  shall  be  provided  only  where  this  is  not  contrary  to  the
provisions  in  force  in  the  Member  State  in  which  the  requested  authority  is
established.

SECTION 2

TIME LIMIT FOR PROVIDING INFORMATION

The requested authority shall provide the information referred to in Articles 5 and 7 without
delay, and no later than three months following the date of receipt of the request.

Article 8

In certain special cases, limits different from those provided for in Article 8 may  be agreed
between the requested and the requesting authorities.

Article 9

21

 
Article 10

Where the requested  authority  is  unable to  respond  to  the  request  by  the  time  limit,  it  shall
inform the requesting authority forthwith  of  the reasons for  its  failure  to  do  so  and  indicate
when it will be able to respond.

SECTION 3

PRESENCE IN ADMINISTRATIVE OFFICES AND PARTICIPATION IN
ADMINISTRATIVE ENQUIRIES

1.

2.

3.

Article 11

By  agreement  between  the  requesting  authority  and  the  requested  authority  and  in
accordance with the arrangements laid down by the latter, officials authorised by the
requesting  authority  may  be  present  in  the  offices  where  the  administrative
departments  of  the  Member  State  in  which  the  requested  authority  is  established
carry  out  their  duties,  with  a  view  to  exchanging  the  information  referred  to  in
Article  1.  Where  the  requested  information  is  contained  in  the  documentation  to
which  the  officials  of  the  requested  authority  have  access,  the  officials  of  the
requesting authority shall be given copies of the documents containing the requested
information.

By  agreement  between  the  requesting  authority  and  the  requested  authority  and  in
accordance with the arrangements laid down by the latter, officials designated by the
requesting authority may be present during the administrative enquiries with a view
to  exchanging  the  information  provided  for  in  Article  1.  Administrative  enquiries
shall be conducted solely by the officials of the requested authority. The requesting
authority's officials shall not exercise the powers of inspection conferred on officials
of the requested authority. They may, however, have access to the same premises and
documents  as  the  latter,  through  their  intermediary  and  for  the  sole  purpose  of  the
administrative enquiry being carried out.

The  officials  of  the  requesting  authority  present  in  another  Member  State  in
accordance  with  paragraphs  1  and  2  must  at  all  times  be  able  to  produce  a  written
authority indicating their identity and their official capacity.

Article 12

Where  national  provisions  on  criminal  proceedings  reserve  certain  duties  to  officials
specifically designated by national law, the requesting authority's officials shall not take part
in such duties.

They shall not participate in searches of premises or the formal questioning of persons under
criminal law. They shall, however, have access to the information thus obtained subject to the
conditions laid down in Article 4.

22

 
SECTION 4

SIMULTANEOUS CONTROLS

Article 13

With  a  view  to  exchanging  the  information  referred  to  in  Article  1,  two  or  more  Member
States may agree to conduct simultaneous controls, in their own territory, of the  excise duty
situation  of  one  or  more  persons  who  are  of  common  or  complementary  interest,  whenever
such controls would appear to be more effective than controls by only one Member State.

Article 14

1.

2.

3.

4.

A Member State shall identify independently the persons whom it intends to propose
for  a  simultaneous  control.  The  competent  authority  of  that  Member  State  shall
notify  the  competent  authority  in  the  other  Member  States  concerned  of  the  cases
proposed  for  simultaneous  controls.  It  shall  give  reasons  for  its  choice,  as  far  as
possible, by providing the information which led to its decision. It shall indicate the
period of time during which such controls should be carried out.

The Member States concerned shall then decide whether they wish to participate in
the  simultaneous  controls.  On  receipt  of  a  proposal  for  a  simultaneous  control,  the
competent  authority  shall  confirm  its  agreement  or  its  refusal  to  its  counterpart
authority.

Each competent authority shall appoint a representative to supervise and  coordinate
the control operation.

The  competent  authorities  shall  notify  the  Commission  without  delay  when  a
simultaneous  control  is  conducted  and  shall  inform  it  of  the  fraud  techniques
identified during such a control and described in the control reports and evaluations
drawn up. The Commission shall inform the Committee referred to in Article 35(1).

SECTION 5

REQUEST FOR ADMINISTRATIVE NOTIFICATION

Article 15

At the request of the requesting authority, the requested authority shall, in accordance with the
rules  governing  the  notification  of  similar  instruments  in  the  Member  State  in  which  it  is
established,  notify  the  addressee  of  all  instruments  and  decisions  which  emanate  from  the
administrative  authorities  and  concern  the  application  of  legislation  on  excise  duties  in  the
territory of the Member State in which the requesting authority is established.

23

 
Article 16

Requests for notification, mentioning the subject of the instrument or decision to be notified,
shall  indicate  the  name,  address  and  any  other  relevant  information  for  identifying  the
addressee.

The standard form for the notification request shall be adopted according to the procedure laid
down in Article 35(2).

Article 17

The requested authority shall immediately inform the requesting  authority  of  its  response to
the  request  for  notification  and  notify  it,  in  particular,  of  the  date  of  transmission  of  the
decision or instrument to the addressee.

Chapter III

Exchange of information without prior request

Article 18

Without prejudice to the provisions of Chapter IV, the competent authority of each Member
State shall, by structured automatic or automatic exchange, forward the information referred
to  in  Article 1  to  the  competent  authority  of  any  other  Member  State  concerned,  in  the
following cases:

1)

2)

3)

where  excise  duty  legislation  has  been  infringed  or  is  suspected  of  having  been
infringed in the other Member State;

where there is a risk of fraud in the other Member State;

where  an  infringement  or  suspected  infringement  of  excise  duty  legislation  in  the
territory of one Member State may have repercussions in another Member State.

Article 19

The  following  shall  be  determined  in  accordance  with  the  procedure  referred  to  in
Article 35(2):

1)

2)

3)

the exact categories of information;

for  each  Member  State,  whether  exchanges  are  structured  or  automatic  and,  in  the
latter case, the frequency of such exchanges;

the practical arrangements for the exchange of information.

24

 
Article 20

The competent authorities of the Member States may always forward to each other, without
prior request, and by means of spontaneous exchange, the information referred to in Article 1
of which they are aware.

Member  States  shall  take  the  necessary  administrative  and  organisational  measures  to
facilitate the exchanges provided for in this Chapter.

Article 21

Article 22

A Member State cannot be obliged, for the purposes of implementing the provisions  of this
Chapter,  to  impose  new  obligations  on  persons  liable  for  payment  of  excise  duties  for  the
purposes of collecting information.

Chapter IV

Storage and exchange of information specific to intra-Community
transactions

1.

2.

Article 23

The competent authority of each Member State shall maintain an electronic database
containing the following registers:

a)

a register of persons who are authorised warehousekeepers or registered traders
for  excise  purposes  within  the  meaning  of  Article  4(a)  and  (d)  of  Directive
92/12/EEC;

b)

a register of premises authorised as tax warehouses.

The register shall contain the following information made available to other Member
States:

a)

b)

c)

d)

the  identification  number  issued  by  the  competent  authority  in  respect  of  the
person or premises;

the name and address of the person or premises;

the category and nomenclature of the products which may be held or received
by the person or which may be held or received at these premises;

identification of  the competent  authority  from  which  further  information  may
be obtained;

25

 
e)

f)

g)

h)

i)

the  date  of  issue,  amendment  and,  where  applicable,  the  date  of  cessation  of
validity of the identification number;

the  information  required  to  identify  authorised  warehousekeepers,  registered
traders and premises authorised as tax warehouses;

the information required to identify persons who have assumed the obligations
within the meaning of Article 15(3) of Directive 92/12/EEC;

the information required to identify persons involved on an occasional basis in
the movement of excisable products;

the information concerning the compulsory movement guarantee referred to in
Article 13(a) of Directive 92/12/EEC.

Each national register shall be made available to other Member States.

The  information  to  be  entered  in  the  registers  defined  in  paragraph  2,  the  detailed
arrangements  for  introducing  and  updating  registers,  the  harmonised  standards  for
recording excise numbers and collecting the information needed to identify persons
and  premises  referred  to  in paragraph 2 and the  arrangements for  making  available
the registers to all Member States as set out in paragraph 3 shall be defined according
to the procedure provided for in Article 35(2).

Where  a  trader  can  be  identified  only  by  means  of  a  VAT  identification  number,
Article 27 of Regulation (EC) No 1798/2003 of the European Parliament and of the
Council on administrative cooperation in the field of value added tax shall apply.16

Article 24

Member  States  shall  introduce  an  electronic  early  warning  system  under  which  the
central liaison office or a liaison department referred to in Article 3(2) and (3) in the
Member  State  of  departure  of  the  excisable  products  can  send  an  information  or
warning message to the liaison office in the Member State of destination before the
products are dispatched. As part of  this exchange of information the central liaison
offices shall carry out a risk analysis before sending and receiving messages.

The information to be exchanged and the relevant arrangements shall be determined
according to the procedure referred to in Article 35(2).

Article 25

In accordance with Article 5, during or after the movement of excisable products, the
central  liaison  office  of  a  Member  State  may  request  information  from  the  central
liaison  office  of  another  Member  State.  As  part  of  this  exchange  of  information
central  liaison  offices  shall  carry  out  a  risk  analysis  when  sending  and  receiving
requests.

3.

4.

5.

1.

2.

1.

16

OJ L 264, 15.10.2003, p. 1.

26

 
                                                
2.

3.

4.

1.

2.

1.

2.

3.

Member  States  shall  also  cooperate  for  the  purposes  of  carrying  out  spot  checks
which may be carried out by means of computerised procedures.

The exchange of information referred to in paragraphs 1 and 2 shall be carried out on
the  basis  of  a  standard  verification  document  of  the  movements  in  question.  The
form and content of this document and the arrangements for exchange of information
shall be laid down according to the procedure provided for in Article 35(2).

Where a consignor of excisable products fails to receive copy 3 of the accompanying
administrative document (AAD) and has exhausted all the means available to provide
proof  that  the  movement  of  products  under  the  suspension  arrangements  has  been
cleared, the trader in question may request the central liaison office of the Member
State in which he is established to use the document provided for in paragraph 3. The
central liaison office shall decide whether to comply with this request. If it does so,
this is in no way releases the consignor from his tax obligations.

Article 26

Where  monitoring  of  the  movement  of  and  surveillance  of  excisable  products  are
carried  out  by  means  of  a  computerised  system,  the  competent  authority  of  each
Member State shall keep and process the information in this system.

The  information  shall  be  kept  for  at  least  three  years  from  the  end  of  the  calendar
year in which access to the information is to  be  granted  so  that information  can be
used for the procedures provided for in this Regulation.

Member  States  shall  ensure  that  the  information  stored  in  the  system  is  kept  up  to
date, and is complete and accurate.

Chapter V

Relations with the Commission

Article 27

Member  States  and  the  Commission  shall  examine  and  evaluate  how  the
arrangements  for  administrative  cooperation  provided  for  in  this  Regulation  are
working. The Commission shall pool the Member States' experience with the aim of
improving the operation of those arrangements.

Member  States  shall  communicate  to  the  Commission  any  information  relating  to
their implementation of this Regulation, including any statistical data needed for the
evaluation of its implementation. The relevant statistical data shall be determined in
accordance with the procedure referred to in Article 35(2).

Member  States  shall  communicate  to  the  Commission  any  information  on  the
methods  or  practices  used  or  suspected  of  having  been  used  to  contravene  excise
duty legislation which has revealed shortcomings or lacunae in the operation of the

27

 
4.

5.

6.

1.

2.

administrative  cooperation  arrangements  provided  for  in  this  Regulation  or  in  the
provisions governing excise duties.

At  the  request  of  the  Commission,  Member  States  shall  provide  all  the  relevant
information  relating  to  the  release  for  consumption,  export  or  placing  under
duty-suspension  arrangements  or  arrangements  with  economic  impact  within  the
meaning of Council Regulation (EEC) No 2913/9217 of excisable products.

With  a  view  to  evaluating  the  effectiveness  of  this  system  of  administrative
cooperation  in  combating  tax  evasion  and  tax  fraud,  Member  States  may
communicate to the Commission any other information referred to in Article 1.

The Commission shall forward the information referred to in paragraphs 2, 3 and 5 to
the other Member States concerned.

Chapter VI

Relations with third countries

Article 28

When the competent authority of a Member State receives information from a third
country, that authority  may pass the information  on to  the  competent  authorities  of
any Member States which might be interested in it and, under all circumstances, to
all those which request it, where the assistance arrangements in force in this country
allow.

Such  information  may  also  be  passed  on  to  the  Commission  whenever  it  is  of
Community interest.

Provided  the  third  country  concerned  has  given  a  legal  undertaking  to  provide  the
assistance  required  to  gather  evidence  of  the  irregular  nature  of  transactions  which
appear  to  contravene  excise  duty  legislation,  information  obtained  under  this
Regulation  may  be  communicated  to  that  third  country,  with  the  consent  of  the
competent  authorities  which  supplied  the  information,  in  accordance  with  their
domestic  provisions  applying  to  the  communication  of  personal  data  to  third
countries.

17

OJ L 302,19.10.1992, p 1.

28

 
                                                
Chapter VII

Conditions governing the exchange of information

Article 29

Information communicated pursuant to this Regulation shall, as far  as possible,  be provided
by electronic means under the arrangements to be adopted in accordance with the procedure
referred to in Article 35(2).

Article 30

Requests  for  assistance,  including  requests  for  notifications,  and  any  supporting  documents
may be made in any language agreed between the requested and requesting authority. These
requests shall be accompanied by a translation into the official language or one of the official
languages of the Member State in which the requested authority is established only in special
cases where the requested authority gives the grounds for doing so.

1.

The requested authority in one Member State shall provide the requesting authority
in another Member State with the information referred to in Article 1 provided that:

Article 31

a)

b)

the  number  and  the  nature  of  the  request  for  information  made  by  the
requesting authority within a specific period do not impose a disproportionate
administrative burden on the requested authority;

the requesting authority has exhausted the usual sources of information which
it  could  have  used  in  the  circumstances  to  obtain  the  information  requested,
without running the risk of jeopardising the achievement of the desired end.

Where mutual  assistance involves particular problems leading to excessive costs or
involves  measures  to  combat  organised  crime,  the  requesting  and  requested
authorities  may  agree  on  special  reimbursement  arrangements  in  the  cases  in
question.

This  Regulation  shall  impose  no  obligation  to  have  enquiries  carried  out  or  to
provide  information  if  the  laws  or  administrative  practices  of  the  Member  State
which  would  have  to  provide  the  information  do  not  authorise  the  competent
authority  to  carry  out  those  enquiries  or  to  collect  or  use  that  information  for  that
Member State's own purposes.

The competent authority of a Member State may refuse to forward information if the
requesting Member State cannot, for legal reasons, provide similar information. The
Commission shall be informed of a refusal by the requested Member State to provide
such information.

2.

3.

4.

29

 
5.

6.

7.

1.

2.

3.

The provision of information may be refused where it would lead to the disclosure of
a commercial, industrial or professional secret or of a commercial process, or where
its disclosure would be contrary to public policy.

The  requested  authority  shall  inform  the  requesting  authority  of  the  grounds  for
refusing  a  request  for  assistance.  The  Commission  shall  also  be  informed  of  the
grounds for the refusal.

A  minimum  threshold  triggering  a  request  for  assistance  may  be  adopted  in
accordance with the procedure referred to in Article 35(2).

Article 32

Information communicated pursuant to this Regulation shall be confidential. It shall
be  covered  by  the  obligation  of  professional  secrecy  and  shall  enjoy  the  protection
extended  to  similar  information  under  both  the  national  law  of  the  Member  State
which  received  it  and  the  corresponding  provisions  applicable  to  Community
authorities.

Such information may  be  used  for  the  purpose  of  establishing  the  assessment  base,
for  collection  or  administrative  control  of  excise  duties,  the  monitoring  of
movements of excisable products and for enquiries.

It  may  be  used  in  connection  with  judicial  or  administrative  proceedings  that  may
involve penalties initiated as a result of infringements of tax law, without prejudice
to  the  general  rules  and  legal  provisions  governing  the  right  of  the  accused  and
witnesses in such proceedings.

It may also be used to establish other taxes, duties and charges covered by Article 2
of Council Directive 76/308/EEC.18

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

By  way  of  derogation  from  paragraph  1,  the  competent  authority  of  the  Member
State providing the information shall permit its use for other purposes in the Member
State  of  the  requesting  authority,  if  the  legislation  of  the  Member  State  of  the
requested authority allows the information to be used for similar purposes.

Where  the  requesting  authority  considers  that  information  it  has  received  from  the
requested  authority  may  be  useful  to  the  competent  authority  of  a  third  Member
State, it may forward it to the latter authority. It shall inform the requested authority
that  it  has  done  so.  The  requested  authority  may  make  the  communication  of
information to a third Member State subject to its prior consent.

18

OJ L 73, 19.3.1976, p. 18.

30

 
                                                
4.

Member  States  shall restrict  the scope  of the obligations  and  rights  provided  for  in
Article 6(1), Article 10, Article 11(1) and Articles 12 and 21 of Directive 95/46/EC
where that is necessary to safeguard the interests referred to in Article 13(e) of that
Directive.

Article 33

Reports,  statements,  and  any  other  documents  or  certified  true  copies  or  extracts  thereof
obtained  by  the  officials  of  the  requested  authority  and  communicated  to  the  requesting
authority under the assistance provided for by this Regulation may be invoked as evidence by
the  competent  bodies  of  the  Member  State  of  the  requesting  authority  on  the  same  basis  as
similar documents provided by another authority of that country.

Article 34

1.

For the purposes of applying this Regulation, a Member State shall take all necessary
measures to:

a)

b)

c)

ensure  effective  internal  coordination  between  the  competent  authorities
referred to in Article 3;

establish direct cooperation between the authorities authorised for the purposes
of such coordination;

ensure the smooth operation of the information exchange system provided for
in this Regulation.

2.

The  Commission  shall  communicate  without  delay  to  the  competent  authority  of
each Member State any information which it receives and which it is able to provide.

Chapter VIII

General and final provisions

Article 35

1.

2.

The Commission shall be assisted by the Excise Committee, hereinafter referred to as
the Committee.

Where reference is made to this paragraph, the regulatory procedure provided for in
Article 5 of Decision 1999/468/EC shall apply in compliance with Articles 7 and 8
thereof.

The  period  provided  for  in  Article  5(6)  of  Decision  1999/468/EC  shall  be  three
months.

3.

The Committee shall adopt its internal rules of procedure.

31

 
Article 36

The  Committee  may  examine  all  matters  relating  to  the  implementation  of  this  Regulation
raised  by  the  chair,  either  on  its  own  initiative  or  at  the  request  of  the  representative  of  a
Member State.

1.

2.

1.

2.

Article 37

Every five years from the date of entry into force of this Regulation, the Commission
shall report to the European Parliament and to the Council on the implementation of
this Regulation.

Member  States  shall  communicate  to  the  Commission  the  text  of  the  provisions  of
national law which they adopt in the field covered by this Regulation.

Article 38

The provisions of this Regulation shall be without prejudice to the fulfilment of any
wider  obligations  in  relation  to  mutual  assistance  ensuing  from  other  legal
instruments, including bilateral or multilateral agreements.

Where the competent authorities conclude arrangements on bilateral matters covered
by  this  Regulation  other  than  to  deal  with  individual  cases,  they  shall  inform  the
Commission  without  delay.  The  Commission  shall  in  turn  inform  the  competent
authorities of the other Member States.

This Regulation shall enter into force on 1 January 2005.

Article 39

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

32

 
2003/0310 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 77/799/EEC concerning mutual assistance by the competent
authorities of the Member States in the field of direct taxation, certain excise duties and
taxation of insurance premiums and Council Directive 92/12/EEC on the general
arrangements for products subject to excise duty and on the holding, movement and
monitoring of such products

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95
thereof,

Having regard to the proposal from the Commission,19

Having regard to the opinion of the European Economic and Social Committee,20

Acting in accordance with the procedure laid down in Article 251 of the Treaty,21

Whereas:

(1)

(2)

Closer  cooperation  between  Community  tax  authorities  and  between  the  latter  and  the
Commission  based  on  common  principles  is  required  to  effectively  combat  excise  duty
fraud.

Regulation (EC) No .../2004 of the European Parliament  and of the Council of .... 2003
on administrative cooperation in the field of excise duties22 incorporates all the provisions
designed to facilitate administrative cooperation in the field of excise duties contained in
Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the
competent authorities of the Member States in the field of direct taxation, certain excise
duties  and  taxation  of  insurance  premiums23  and  Council  Directive  92/12/EEC  on  the
general arrangements for products subject to excise duty and on the holding, movement
and monitoring of such products,24 with the exception of mutual assistance provided for
by Council Directive 76/308/EEC of 15 March 1976 concerning mutual assistance for the
recovery of claims relating to levies, duties, charges and other measures.25

(3)

Directives 77/799/EEC and 92/12/EEC should therefore be amended accordingly,

19

20

21

22

23

24

25

OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ L […], […], p. […].
OJ L 336, 27.12.1977, p. 5. Directive last amended by Directive 2003/93/EC (OJ L 264, 15.10.2003, p. 23).
OJ L 76, 23.3.1992. Directive last amended by Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).
OJ L 73, 19.3.1976, p. 18. Directive last amended by the Act of Accession of 2003.

33

 
                                                
HAVE ADOPTED THIS DIRECTIVE:

Article1

Directive 77/799/EEC is hereby amended as follows:

1)

The title is replaced by the following title:

"Council  Directive  77/799/EEC  of  19  December  1977  concerning  mutual  assistance  by  the
competent  authorities  of  the  Member  States  in  the  field  of  direct  taxation  and  taxation  of
insurance premiums".

2)

Paragraph 1 of Article 1 is replaced by the following:

"1.
In  accordance  with  the  provisions  of  this  Directive  the  competent  authorities  of  the
Member  States  shall  exchange  any  information  that  may  enable  them  to  effect  a  correct
assessment of taxes on income and on capital, and any information relating to the establishment
of taxes on insurance premiums referred to in the sixth indent of Article 3 of Council Directive
76/308/EEC."

Directive 92/12/EEC is hereby amended as follows:

Article 2

1)

2)

3)

Article 15a is deleted.

Article 15b is deleted.

Article 19(6) is deleted.

Article 3

References to Directive 77/799/EEC in respect of excise duties shall be construed as references
to Regulation (EC) No [.../....].

References to Directive 92/12/EEC in respect of administrative cooperation in the field of excise
duties shall be construed as references to Regulation (EC) No [.../...].

Article 4

1.

2.

Member States shall bring into force the laws, regulations and administrative provisions
necessary  to  comply  with  this  Directive  by  1  January  2005  at  the  latest.  They  shall
forthwith inform the Commission thereof.

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

Member States shall transmit the provisions of national law that they adopt in the field
covered by this Directive to the Commission.

34

 
This Directive shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.

Article 5

Article 6

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

35

 
FINANCIAL STATEMENT

Once  it  has  been  adopted  the  proposed  Regulation  will  not  have  any  financial  consequence
either  positive  or  negative  for  Community  own  resources.  Excise  duties  are  exclusively
national  resources.  The  Commission's  role  is  solely  to  improve  the  operation  of  the  internal
market.

36