Report from the Commission to the Council and the European Parliament on the use of the provisions on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures in 2005-2008
Date: 2009-09-04
Institutions: European Commission
Subjects: administrative cooperation, application of EU law, claim, disclosure of information, distribution of EU funding, exchange of information, redemption

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.9.2009 
COM(2009) 451 final 

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

on the use of the provisions on mutual assistance for the recovery of claims relating to 
certain levies, duties, taxes and other measures in 2005-2008 

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REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

on the use of the provisions on mutual assistance for the recovery of claims relating to 
certain levies, duties, taxes and other measures in 2005-2008 

1. 

INTRODUCTION 

EC Member States provide mutual assistance to each other for the recovery of claims relating 
to  certain  levies,  duties,  taxes  and  other  measures.  The  legislation  concerned  was  originally 
laid  down  in  Council  Directive  76/308/EEC  of  15  March  19761.  This  Directive  has  been 
replaced by Directive 2008/55/EC of 26 May 20082. Under this legislation the Commission is 
required  to  produce  a  regular  report  on  the  use  of  the  mutual  assistance  arrangements.  The 
first  report  (document  COM(2006)43)  was  published  on  8  February  2006.  It  provided  an 
overview  of  the  mutual  recovery  assistance  provided  in  2003  and  2004.  The  present  report 
relates to recovery assistance granted in 2005-2008. It also deals with the current Commission 
initiatives in this field. 

2. 

ANALYSIS OF THE USE OF MUTUAL ASSISTANCE MEASURES IN 2005-2007 

2.1. 

Introductory remark 

In its previous report the Commission indicated that the statistics of various Member States 
contained  certain  inconsistencies.  The  statistics  relating  to  the  numbers  of  requests  made  in 
the  period  2005-2007  in  general  show  an  important  decrease  in  these  inconsistencies,  even 
though the number of requests has increased enormously.  

This  demonstrates  that  Member  States  have  paid  more  attention  to  establishing  correct 
statistics. The adoption of precise instructions concerning the statistical reporting obligations 
on  5  December  2005  will  undoubtedly  have  contributed  to  the  improved  accuracy  of  the 
statistics.  Moreover,  Member  States'  questions  on  this  issue  were  carefully  examined  in  the 
Recovery  Committee,  which  enabled  the  national  authorities  to  reduce  possible  divergent 
views that may lead to inconsistencies in the statistics reported. 

2.2. 

Increasing use of EC mutual assistance requests 

Statistics provided by Member States show an increasing number of requests for assistance on 
the basis of the EC Directive (first column in the graphics below).  

It  also  appears  that  the  EC  legislative  framework  is  much  more  widely  used  between  EC 
Member States than any other mutual recovery assistance agreement or arrangement. The use 
of  other  mutual  assistance  arrangements  between  the  Member  States  (second  column  in  the 
graphics  below)  has  diminished  in  the  period  2005-2008.  (Data  on  the  use  of  other  mutual 
assistance arrangements are only available for the period from 2005 to 2008)3. 

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OJ L 73, 19.3.1976, p. 18. 
OJ L 150, 10.6.2008, p. 28. 
Information according to the statistics communicated by requested Member States. 

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2.2.1.  Evolution of the requests for information 

2.2.2. Evolution of the requests for notification 

2.2.3. Evolution of the requests for recovery 

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2.2.4. Nature of the claims for which recovery assistance was requested 

The nature of the claims, in percentage of the total amounts of all claims, is illustrated by the 
following graphics4:  

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  requests  concerning  VAT  claims  (referred  to  in  Art.  2(e)  of  Directive 
2008/55/EC) represent a major part of the requests for recovery measures: their part 
has raised from 43 % in 2005 to 57 % in 2007; in 2008 it diminished to 34 %. 

  requests  relating  to  taxes  on  income  and  capital  (referred  to  in  Art.  2(g)  of  the 
Directive) represent the other major part of the requests. This part diminished from 
37  %  of  all  requests  in  2005  to  26  %  of  all  requests  in  2007;  in  2008,  50  %  of  all 
requests related to claims of this category. 

 requests relating to refunds, interventions ad other measures forming part of the 
system of financing of the European Agricultural Guarantee Fund and the European 
Agricultural Fund for Rural Development, levies and other duties provided for under 
the common organisation of the market for the sugar sector, import and export duties 
(referred  to  in  Art.  2(a)-(d)  of  the  Directive)  represent  approximately  10  %  of  all 
requests; 

  requests  relating  to  excise  duties  (referred  to  in  Art.  2(f)  of  the  Directive)  also 
represent about 10 % of all requests (except in 2007, where this part diminished to 4 
%); 

 requests relating to taxes on insurance premiums (referred to in Art. 2(h) of the 
Directive) only represent a very small part of all requests. In 2008, there were even 
no requests relating to such taxes. 

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Statistics based on the average of requests received and sent. For 2005, these statistics are based on data 
reported  by  17  Member  States;  for  2006  on  data  reported  by  20  Member  States;  for  2007  on  data 
reported by 24 Member States; and for 2008 on data reported by 25 Member States. 

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2.3. 

Increasing amounts recovered 

2.3.1. Global evolution of the amounts recovered 

The  evolution  of  the  amounts  that  are  effectively  recovered  also  shows  an  increasing 
tendency. Compared to the amounts recovered in 2003 (100 %), the recovered amounts have 
risen to over 600 % in 2006 and 20085. 

2.3.2. Distribution of the amounts recovered for other Member States, according to the years 
to which the requests concerned relate 

It takes some time before recovery measures are taken and before they produce their effect. 
For  instance,  amounts  recovered  by  a  requested  Member  State  in  2008  will  only  partially 
relate  to  requests  received  in  2008;  these  amounts  will  also  relate  to  requests  received  in 
previous  years.  The  following  graphics  show,  with  regard  to  the  amounts  effectively 
recovered in the years 2005-2008, to which year the requests concerned relate. It appears from 
these  statistics  that  (more  than)  80  %  of  the  amounts  recovered  in  these  years  relates  to 
requests made in the same year (indicated by "=" in the graphics below) or in the two previous 
calendar years (indicated as "-1" and "-2" in the graphics below). 

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Statistics reported by the requested Member States as recovered at the request of other Member States. 

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2.4. Lack of efficiency 

Statistics on mutual assistance for recovery relating to 2005 - 2008 show that the recovered 
amounts have increased considerably. However, the number of requests and the amounts for 
which recovery assistance is requested, are also growing. Consequently, there remains a large 
gap  between  the  amounts  for  which  assistance  is  requested  and  amounts  actually  recovered 
through mutual assistance. 

As already indicated under point 2.3.2., recovery measures taken in the execution of a request 
received  in  a  certain  year  do  not  lead  to  an  immediate  recovery  within  that  same  year. 
Statistics about this postponed effect of the recovery measures were not available for the years 
preceding 2005. Therefore, it is not possible now to have a precise idea of the percentage of 
the  amounts  that  are  effectively  recovered,  compared  to  the  amounts  for  which  recovery 
assistance  was  requested  in  a  given  year.  However,  the  partial  information  now  available 
makes  it  clear  that  the  global  recovery  ratio  for  the  recovery  requests  between  EC  Member 
States can be expected to be now around 5 %.6 

Faced  with  the  increase  in  requests  and  the  increase  of  the  amounts  for  which  recovery 
assistance is requested, special efforts are needed to improve the efficiency of this assistance. 
These efforts have to be made on national level and on Community level: 

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the individual Member States have to strengthen the recovery instruments available 
in their domestic legislation; and 

the  European  Community  has  to  reinforce  and  facilitate  the  mutual  recovery 
assistance between the Member States. 

3. NEW COMMUNITY INITIATIVES TO STRENGTHEN THE MUTUAL RECOVERY ASSISTANCE 

3.1. New Council Directive 

The  original  Directive  on  mutual  assistance  for  the  recovery  of  claims  relating  to  certain 
levies, duties, taxes and other measures – Directive 76/308/EEC – has been amended several 
times. In the interests of clarity and rationality the said Directive has been codified. The new 
Council  Directive  2008/55/EC  was  adopted  on  26  May  2008  and  entered  into  force  on  30 
June 2008. 

3.2. New Commission Regulation facilitating the exchange of assistance requests 

On  28  November  2008,  the  Commission  adopted  Regulation  (EC)  No  1179/2008,  which 
replaced  Commission  Directive  2002/94/EC  as  of  1  January  2009.  This  new  legislation, 
which  lays  down  detailed  rules  to  implement  the  Council  Directive,  facilitates  mutual 
assistance  in  practice,  in  particular  communication  between  the  competent  authorities  of 
different  Member  States.  This  is  indeed  indispensable,  given  the  continuous  increase  of 
requests. 

According  to  the  new  rules  the  electronic  communication  of  requests  and  replies  is  in 
principle applied to all types of mutual assistance requests. New standard request forms also 
contribute to a faster communication between the applicant and the requested authority. 

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It should however be kept in mind that the total sum of the amounts mentioned in the recovery requests 
does not necessarily correspond to the amounts really due; e.g. the same claim  may be the subject of 
several requests to different Member States; or requests may be withdrawn at a later stage, because the 
claims are paid voluntarily or contested successfully. At present, the statistics available do not allow to 
take account of all these situations. 

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An electronic version of these new request forms, allowing an automatic translation, is now 
being developed. A test phase for the use of these electronic request forms started on 1 June 
2008. It involves authorities from 6 Member States. It is expected that all Member States will 
be able to use the new electronic forms in the course of 2010. 

3.3. 

Proposal for new Council legislation 

On 2 February 2009, the Commission presented a proposal COM(2009)28 to replace Council 
Directive 2008/55/EC by new provisions, to reinforce the recovery assistance. 

The main objectives and elements of this proposal relate to: 

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an  extension  of  the  scope  to  levies  that  are  not  yet  covered  by  the  present  EC 
legislation, since the competitiveness and the fiscal neutrality of the internal market 
is not only affected by the non-payment of the taxes now falling within the scope of 
Directive  2008/55/EC.  Distorsions  of  the  internal  market  conditions,  as  well  as  the 
threat to financial interests of the Community and the Member States may also result 
from fraud concerning other taxes; 

the  preferential  use  of  EC  legislation  for  all  mutual  recovery  assistance  requests 
between  EC  Member  States.  This  should  enable  officials  concerned  to  avoid  the 
difficulties that result from the application of several agreements and arrangements, 
each with different possibilities, conditions, modalities and communication methods; 

the  reinforcement  of  possibilities  to  request  mutual  assistance  and  to  speed  up  the 
treatment  of  mutual  assistance  requests.  This  appears  essential,  as  the  chances  to 
recover  claims  are  clearly  related  to  the  age  of  the  claim.  In  order  to  improve  the 
recovery chances, the Commission proposes measures such as:  

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the  possibility  to  request  recovery  measures,  even  when  not  all  appropriate 
recovery actions have been taken in the applicant Member State; 

the spontaneous exchange of certain categories of information; 

the possibility for recovery officials to be present in administrative offices and 
to participate in administrative enquiries in another Member State; 

the simplification of the procedures to notify documents by the introduction of 
a uniform notification method, using a standard form;  

the development of uniform Community instruments permitting enforcement or 
precautionary  measures,  allowing  to  avoid  problems  of  translation  and 
recognition of foreign instruments. 

4. 

CONCLUSIONS AND RECOMMANDATIONS 

4.1. 

Conclusions 

The increase in the  number of assistance requests demonstrates that Member States feel the 
need to work closely together in the fight against tax fraud.  

Although  the  recovered  amounts  have  increased  over  the  period  2005-2008,  a  further 
reinforcement  of  the  existing  legislation  in  this  field  is  needed,  in  order  to  cope  with  the 
increasing  number  of  requests  for  assistance  and  to  improve  the  efficiency  of  the  recovery 
assistance. 

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4.2. 

Recommendations 

The  Member  States  are  urged  to  strengthen  the  recovery  instruments  available  in  their 
domestic legislation. 

The Council and the Parliament are invited to adopt quickly the proposal that the Commission 
has presented on 2 February 2009 to reinforce mutual recovery assistance. 

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