Council Directive 2004/56/EC of 21 April 2004 amending 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
Date: 2004-04-21
Institutions: Council of the European Union
Subjects: VAT, direct tax, mutual recognition principle, tax evasion, tax harmonisation

L 127/70

EN

Official Journal of the European Union

29.4.2004

COUNCIL DIRECTIVE 2004/56/EC

of 21 April 2004

amending 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

THE COUNCIL OF THE EUROPEAN UNION,

(6)

Having regard to the Treaty establishing the European Com-
munity, and in particular Articles 93 and 94 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

(7)

Whereas:

(1)

duties

Council Directive 77/799/EEC of 19 December 1977
concerning mutual assistance by the competent authori-
ties of the Member States in the field of direct taxation,
insurance
and
certain excise
premiums (3) established the ground rules for administra-
tive cooperation and the exchange of
information
between Member States in order to detect and prevent
tax evasion and tax fraud and to enable Member States
to carry out a correct tax assessment. It is essential to
improve, expand and modernise those rules.

taxation of

(2) When a Member State conducts enquiries in order to
obtain the information necessary to respond to a request
for assistance, that State should be regarded as acting on
its own account; in that way, there will only be one set
of rules applying to the information-gathering process
and the investigation will not be undermined by delays.

(3)

(4)

(5)

It is inappropriate, if the fight against tax fraud is to be
effective, that a Member State which has received infor-
mation from another Member State should subsequently
have to request permission to disclose the information
in public hearings or judgements.

It should be made clear that a Member State is not
under any obligation to carry out enquiries in order to
obtain the information necessary to respond to a request
for assistance where either its legislation or administra-
tive practices do not permit its competent authority to
conduct enquiries or to collect such information.

It should be possible for the competent authority of a
Member State to refuse information or assistance when
the requesting Member State is not in a position to
supply the same type of
for
reasons of fact or of law.

information, whether

(1) Opinion delivered on 15 January 2004 (not yet published in the

Official Journal).

(2) OJ C 32, 5.2.2004, p. 94.
(3) OJ L 336, 27.12.1977, p. 15. Directive as last amended by Directive

2003/93/EC (OJ L 264, 15.10.2003, p. 23).

In view of the legal requirement
in certain Member
States that a taxpayer be notified of decisions and instru-
ments concerning his tax liability and of the ensuing
difficulties for the tax authorities, including cases where
the taxpayer has relocated to another Member State, it is
desirable that, in such circumstances, the tax authorities
should be able to call upon the assistance of the compe-
tent authorities of
the Member State to which the
taxpayer has relocated.

Since the tax situation of one or more persons liable to
tax established in several Member States often is of
common or complementary interest, it should be made
possible for simultaneous controls to be carried out to
such persons by two or more Member States, by mutual
agreement and on a voluntary basis, whenever such
controls appear
to be more effective than controls
carried out by only one Member State.

(8)

The Commission submitted its proposal for a Directive
on the basis of Article 95 of the Treaty. The Council,
taking the view that the proposal for a Directive related
to the harmonisation of legislation in the field of both
the act should
direct and indirect
therefore be adopted on the basis of Articles 93 and 94
of the Treaty, consulted the European Parliament by
letter dated 12 November 2003 informing it of
the
Council's intention of changing the legal basis.

taxation and that

(9)

Directive 77/799/EEC should therefore be amended
accordingly,

HAS ADOPTED THIS DIRECTIVE:

Article 1

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

1. Article 1(5) shall be amended as follows:

(a) the wording under ‘in Italy’ shall be replaced by the

following:

‘il Capo del Dipartimento per le Politiche Fiscali or his
authorised representatives’

(b) the wording under ‘in Sweden’ shall be replaced by the

following:

‘Chefen för Finansdepartementet or his authorised repre-
sentative’

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Official Journal of the European Union

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2.

in Article 2(2), the following subparagraph shall be added:

5. the following Articles shall be inserted:

‘In order to obtain the information sought, 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 8a

Notification

3. Article 7(1) shall be replaced by the following:

All

‘1.
information made known to a Member State
under this Directive shall be kept secret in that State in the
same manner as information received under its national
legislation. In any case, such information:

— may be made available only to the persons directly
involved in the assessment of the tax or in the adminis-
trative control of this assessment,

— may be made known only in connection with judicial
proceedings or administrative proceedings
involving
sanctions undertaken with a view to, or relating to, the
making or reviewing the tax assessment and only to
persons who are directly involved in such proceedings;
such information may, however, be disclosed during
public hearings or
the competent
authority of the Member State supplying the information
raises no objection at the time when it first supplies the
information,

in judgements if

— shall in no circumstances be used other than for taxation
purposes or in connection with judicial proceedings or
administrative proceedings involving sanctions under-
taken with a view to, or in relation to, the making or
reviewing of the tax assessment.

In addition, Member States may provide for the information
referred to in the first subparagraph to be used for assess-
ment of other levies, duties and taxes covered by Article 2
of Directive 76/308/EEC (*).

(*) OJ L 73, 19.3.1976, p. 18.’

4. Article 8 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

This Directive does not

‘1.
impose any obligation
upon a Member State from which information is
requested to carry out
inquiries or to communicate
information, if it would be contrary to its legislation or
administrative practices for the competent authority of
that State to conduct such inquiries or to collect the
information sought.’

(b) paragraph 3 shall be replaced by the following:

‘3.
The competent authority of a Member State may
decline transmission of information when the Member
State requesting it is unable, for reasons of fact or law,
to provide the same type of information.’

At

the request of

1.
the competent authority of a
Member State, the competent authority of another Member
State shall, in accordance with the rules governing the noti-
fication of similar instruments in the requested Member
State, notify the addressee of all instruments and decisions
which emanate from the administrative authorities of the
requesting Member State and concern the application in its
territory of legislation on taxes covered by this Directive.

2.
Requests for notification shall indicate the subject of
the instrument or decision to be notified and shall specify
the name and address of the addressee, together with any
other information which may facilitate identification of the
addressee.

The requested authority shall

3.
inform the requesting
authority immediately of its response to the request for noti-
fication and shall notify it, in particular, of the date of notifi-
cation of the decision or instrument to the addressee.

Article 8b

Simultaneous controls

1. Where the tax situation of one or more persons liable
to tax is of common or complementary interest to two or
more Member States, those States may agree to conduct
simultaneous controls, in their own territory, with a view to
exchanging the information thus obtained, whenever they
would appear to be more effective than controls conducted
by one Member State alone.

2.
The competent authority in each Member State shall
identify independently the persons liable to tax whom it
intends to propose for simultaneous control. It shall notify
the respective competent authorities in the other Member
States concerned of the cases which, in its view, should be
subject to simultaneous control. It shall give reasons for its
choice, as far as possible, by providing the information
which led to its decision. It shall specify the period of time
during which such controls should be conducted.

3.
The competent authority of each Member State
concerned shall decide whether it wishes to take part in the
simultaneous control. On receipt of a proposal for a simul-
taneous control, the competent authority shall confirm its
agreement or communicate its reasoned refusal to its coun-
terpart authority.

Each competent authority of

4.
the Member States
concerned shall appoint a representative with responsibility
for supervising and coordinating the control operation.’

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Official Journal of the European Union

29.4.2004

Article 2

Article 3

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Direc-
tive before 1 January 2005. They shall forthwith communicate
to the Commission the text of those provisions and a correla-
tion table between those provisions and this Directive.

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

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Union.

This Directive is addressed to the Member States.

Article 4

Done at Luxembourg, 21 April 2004.

For the Council

The President

J. WALSH