Administrative cooperation and combating fraud in the field of value added tax (recast) * European Parliament legislative resolution of 5 May 2010 on the proposal for a Council regulation on administrative cooperation and combating fraud in the field of value added tax (recast) (COM(2009)0427 – C7-0165/2009 – 2009/0118(CNS))
Date: 2010-05-05
Institutions: Committee on Economic and Monetary Affairs, European Parliament
Subjects: VAT, administrative cooperation, domestic market, fraud, intra-EU trade, tax evasion








CE2011081EN.01014801.xml










15.3.2011   


EN


Official Journal of the European Union


CE 81/148





Wednesday 5 May 2010Administrative cooperation and combating fraud in the field of value added tax (recast) *
P7_TA(2010)0091
European Parliament legislative resolution of 5 May 2010 on the proposal for a Council regulation on administrative cooperation and combating fraud in the field of value added tax (recast) (COM(2009)0427 – C7-0165/2009 – 2009/0118(CNS))
2011/C 81 E/26
(Special legislative procedure – consultation – recast)

The European Parliament,
having regard to the Commission proposal to the Council (COM(2009)0427),
having regard to Article 93 of the EC Treaty, pursuant to which the Council consulted Parliament (C7-0165/2009),
having regard to the communication from the Commission to the European Parliament and the Council entitled ‘Consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures’ (COM(2009)0665),
having regard to Article 113 of the Treaty on the Functioning of the European Union,
having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts (1),
having regard to the letter of 12 November 2009 from the Committee on Legal Affairs to the Committee on Economic and Monetary Affairs in accordance with Rule 87(3) of its Rules of Procedure,
having regard to Rules 87 and 55 of its Rules of Procedure,
having regard to the report of the Committee on Economic and Monetary Affairs (A7-0061/2010),






A.


whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance,










1.


Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission (and incorporating the technical amendments approved by the Committee on Legal Affairs) and as amended below;










2.


Calls on the Commission to alter its proposal accordingly, pursuant to Article 293(2) of the Treaty on the Functioning of the European Union;










3.


Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;










4.


Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;










5.


Instructs its President to forward its position to the Council, to the Commission and to the national parliaments.










TEXT PROPOSED BY THE COMMISSION


AMENDMENT





Amendment 2






Proposal for a regulation


Recital 3 a (new)





 










(3a)






The European Parliament, in its resolution of 2 September 2008 on a coordinated strategy to improve the fight against fiscal fraud (2), reiterated that the existing system for managing VAT needs a radical overhaul, and urged the Commission, therefore, to submit proposals for harmonising the registration and de-registration procedures for taxable persons and for allowing Member States automatic access to non-sensitive data on their taxpayers which is held by another Member State.











Amendment 3






Proposal for a regulation


Recital 3 b (new)





 










(3b)






In obtaining such automatic access to non-sensitive data, an appropriate level of protection, a limited storage period of the data exchanged and due accountability of the data keeper institution or body, in order to prevent mismanagement or leakage of data, should be ensured.











Amendment 4






Proposal for a regulation


Recital 5 a (new)





 










(5a)






The European Parliament, in its resolution of 4 December 2008 on the European Court of Auditors’ Special Report No 8/2007 concerning administrative cooperation in the field of value added tax (3), expressed its conviction that the introduction of Eurofisc can provide added value only if Member State participation is compulsory, in order to avoid the problems encountered by the European Carrousel Network (Eurocanet), and only if the Commission fully participates in its activities and plays a coordinating role.











Amendment 5






Proposal for a regulation


Recital 5 b (new)





 










(5b)






The European Parliament, in its resolution of 4 December 2008, also called for the introduction of Eurofisc and recalled the paramount necessity for sharing existing national best practices in the fight against cross-border VAT fraud with a view to introducing both appropriate incentives for due diligence by Member States in relation to VAT, and rewards for honest taxpayers.











Amendment 6






Proposal for a regulation


Recital 14











(14)


In view of the repetitive nature of certain requests and the linguistic diversity within the Community, it is important to spread the use of standard forms in the exchange of information so that information requests can be processed more quickly.












(14)


In view of the repetitive nature of certain requests and the linguistic diversity within the Community, it is important to spread 
and promote
 the use of standard forms in the exchange of information so that information requests can be processed more quickly.









Amendment 7






Proposal for a regulation


Recital 20











(20)


The conditions for the exchange of, and automated access of Member States to electronically stored data in each Member State should be clearly defined.












(20)


The conditions for the exchange of, and automated access of Member States to electronically stored data in each Member State 
and the means of storage of such data
 should be clearly defined.









Amendment 8






Proposal for a regulation


Recital 29











(29)


Recent practical experience of the application of Regulation (EC) No 1798/2003 in the fight against carrousel fraud has shown that in some cases it is essential to establish a much faster mechanism for the exchange of information, covering much more, and more targeted, information in order to combat fraud effectively. This mechanism should be included within the framework of the Regulation while keeping sufficient flexibility to adapt to new types of fraud. Eurocanet (European Carrousel Network), established on the initiative of Belgium and supported by the Commission, is an example of this kind of cooperation.












(29)


Recent practical experience of the application of Regulation (EC) No 1798/2003 in the fight against carrousel fraud has shown that in some cases it is essential to establish a much faster mechanism for the exchange of information, covering much more, and more targeted, information in order to combat fraud effectively. Such a mechanism should be included within the framework of the Regulation while keeping sufficient flexibility to adapt to new types of fraud. 
With a view to ensuring the proper functioning of such a mechanism, a Union approach should be adopted.
 Eurocanet, established on the initiative of Belgium and supported by the Commission, is an example of this kind of cooperation.









Amendment 9






Proposal for a regulation


Recital 35











(35)


For the purposes of this Regulation, it is appropriate to consider limitations of 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 processing of personal data and on the free movement of such data in order to safeguard the interests referred to in Article 13(1)(e) of that Directive. 
Such limitations are necessary and proportionate in view of the potential loss of revenue for Member States and the crucial importance of this information to effectively combating fraud
.












(35)


For the purposes of this Regulation, it is appropriate to consider limitations of 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 processing of personal data and on the free movement of such data in order to safeguard the interests referred to in Article 13(1)(e) of that Directive, 
as well as those laid down by Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data

 (4).









Amendment 10






Proposal for a regulation


Recital 36 a (new)





 










(36a)






The European Data Protection Supervisor has been consulted,











Amendment 12






Proposal for a regulation


Article 1 a (new)





 



Article 1a



Within the framework of application of this Regulation, the Member States and the Commission shall ensure respect for the rights and obligations laid down in Directive 95/46/EC and Regulation (EC) No 45/2001.







Amendment 13






Proposal for a regulation


Article 15





The competent authorities of the Member States shall spontaneously forward to the competent authorities of the other Member States any information referred to in Article 1 of which they are aware and which 
may be useful to the competent authorities of the other Member States
.


The competent authorities of the Member States shall spontaneously forward to the competent authorities of the other Member States any information referred to in Article 1 of which they are aware and which 
is necessary in order to assess VAT accurately, ensure the proper application of VAT legislation, in particular as regards intra-Union transactions, and fight VAT-related fraud
.





Amendment 14






Proposal for a regulation


Article 18 – paragraph 1 – subparagraph 1 a (new)





 




The persons referred to in point (b) shall be invited to give their opinion on the quality of the information held.







Amendment 15






Proposal for a regulation


Article 18 – paragraph 3






3.   The list and details of the data referred to in paragraph 1(b), (c) 
and
 (d) and paragraph 2 of this Article shall be adopted in accordance with the procedure referred to in Article 60(2).



4.   
Without imposing a disproportionate administrative burden on the requested authority,
 the list and details of the data referred to in paragraph 1(b), (c), (d) 
and (e)
 and paragraph 2 of this Article shall be adopted in accordance with the procedure referred to in Article 60(2).





Amendment 16






Proposal for a regulation


Article 22 – paragraph 1 – introductory part





Every Member State shall grant the competent authorities of any other Member State automated access to the information contained in the databases referred to in Article 18. In the case of the information referred to in Article 18(1)(a), at least the following details shall be accessible:




With the aim of ensuring that there is no breach of the VAT legislation and where it is deemed necessary in order to monitor intra-Union purchases of goods or provisions of services which are subject to taxation in the Member State concerned,
 every Member State shall grant the competent authorities of any other Member State automated access to the information contained in the databases referred to in Article 18. In the case of the information referred to in Article 18(1)(a), at least the following details shall be accessible:





Amendment 17






Proposal for a regulation


Article 22 – paragraph 2 a (new)





 




2a.
   
Where the information referred to in Article 18(1)(a) includes personal data, automatic access thereto shall be limited to the categories of data mentioned in this Article.







Amendment 18






Proposal for a regulation


Article 34 – paragraph 1 – introductory part





1.   A 
common
 structure for combating VAT evasion and avoidance shall be established under this Regulation. It shall perform the following tasks:


1.   A 
Union-level
 structure for combating VAT evasion and avoidance shall be established under this Regulation. It shall perform the following tasks:





Amendment 19






Proposal for a regulation


Article 34 – paragraph 2





2.   
The competent authorities of the Member States shall determine the fields of investigation to be covered by
 the structure referred to in paragraph 1.


2.   The 
Union-level
 structure referred to in paragraph 1 
shall be made up of officials appointed by the competent authorities of the Member States
.





Amendment 20






Proposal for a regulation


Article 34 – paragraph 3





3.   
For each field of investigation the competent authorities of the Member States shall designate one or more Member States within the structure to supervise and guide performance of the tasks
 referred to in paragraph 1.


3.   
The Union-level structure
 referred to in paragraph 1 
shall determine the fields of investigation in which it will carry out its tasks
.





Amendment 21






Proposal for a regulation


Article 34 – paragraph 3 a (new)





 




3a.
   
In order to investigate VAT fraud with more efficiency in the Union, an incentive mechanism shall be designed for the recovery of cross-border tax claims by distributing a fair proportion of the collected unpaid VAT between the Member State recovering the tax claims and the requesting Member State.







Amendment 22






Proposal for a regulation


Article 35







The structure established under Article 34 shall be made up of competent officials designated by
 the competent authorities of the Member States. 
It shall be provided with technical, administrative and operational support by the Commission.






The Commission shall coordinate, guide and supervise the performance of the tasks referred to in Article 34(1), and shall provide technical, administrative and operational support to
 the competent authorities of the Member States.





Amendment 23






Proposal for a regulation


Article 39





The structure established under Article 34 shall submit an annual account of its activities to the Committee referred to in Article 60.


The structure established under Article 34 shall submit an annual account of its activities to 
the Member States, the European Parliament and
 the Committee referred to in Article 60.





Amendment 24






Proposal for a regulation


Article 51 – paragraph 1





1.   The Member States 
and
 the Commission shall examine and evaluate how the arrangements for administrative cooperation provided for in this Regulation are working. In particular, the Member States shall conduct audits of the operation of those arrangements. The Commission shall pool the Member States’ experience with the aim of improving the operation of those arrangements.


1.   The Member States, 
the European Parliament and
 the Commission shall examine and evaluate how the arrangements for administrative cooperation provided for in this Regulation are working. In particular, the Member States shall conduct audits of the operation of those arrangements. The Commission shall pool the Member States’ experience with the aim of improving the operation of those arrangements 
and shall regularly report to the Member States and the European Parliament on the results
.





Amendment 25






Proposal for a regulation


Article 51 – paragraph 2





2.   The Member States shall communicate to the Commission any available information relevant to their application of this Regulation.


2.   The Member States shall communicate to the 
European Parliament and the
 Commission any available information relevant to their application of this Regulation.





Amendment 26






Proposal for a regulation


Article 51 – paragraph 9





9.   The Commission 
may
 provide expert opinions, technical or logistical assistance, information campaigns or any other operational support for the Member States with a view to attaining the objectives of this Regulation.


9.   The Commission 
shall
 provide expert opinions, technical or logistical assistance, information campaigns or any other operational support for the Member States with a view to attaining the objectives of this Regulation.





Amendment 27






Proposal for a regulation


Article 52 – paragraph 2





2.   Provided the third country concerned has given an undertaking to provide the assistance required to gather evidence of the irregular nature of transactions which appear to contravene VAT 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.


2.   Provided the third country concerned has given an undertaking to provide the assistance required to gather evidence of the irregular nature of transactions which appear to contravene VAT 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 
and subject to Directive 95/46/EC and its implementing provisions and subject to Regulation (EC) No 45/2001 and its implementing rules
.





Amendment 28






Proposal for a regulation


Article 57 – paragraph 1 – subparagraph 1





1.   Information communicated or collected in any form pursuant to this Regulation, including any information to which an official has had access in the circumstances set out in Chapters VII, VIII and X, and in the cases referred to in paragraph 2 of this Article, shall be covered by the obligation of official secrecy and 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. They shall be used only in the circumstances provided for in this Regulation.


1.   Information communicated or collected in any form pursuant to this Regulation, including any information to which an official has had access in the circumstances set out in Chapters VII, VIII and X, and in the cases referred to in paragraph 2 of this Article, shall be covered by the obligation of official secrecy and 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 is also protected under Directive 95/46/EC and Regulation (EC) No 45/2001.
 It shall be used only in the circumstances provided for in this Regulation.





Amendment 29






Proposal for a regulation


Article 57 – paragraph 5





5.   All storage or exchange of information referred to in this Regulation is subject to 
the provisions implementing
 Directive 95/46/EC. However, Member States 
shall
, for the purpose of the correct application of this Regulation, 
restrict
 the scope of the obligations and rights provided for in Article 10, Article 11(1), Articles 12 and 21 of Directive 95/46/EC to the extent required in order to safeguard the interests referred to in Article 13(e) of that Directive.


5.   All storage or exchange of information referred to in this Regulation is subject to Directive 95/46/EC 
and its implementing provisions and subject to Regulation (EC) No 45/2001 and its implementing rules
. However, Member States 
may
, for the purpose of the correct application of this Regulation, 
adopt legislative measures restricting
 the scope of the obligations and rights provided for in Article 10, Article 11(1), Articles 12 and 21 of Directive 95/46/EC to the extent required in order to safeguard the interests referred to in Article 13(e) of that Directive.





Amendment 30






Proposal for a regulation


Article 57 – paragraph 5 a (new)





 




5a.
   
The Member States and the Commission shall ensure respect for the obligations relating to transparency and information with regard to the interested parties in cases involving retrieval of the personal data referred to in Directive 95/46/EC and Regulation (EC) No 45/2001.







Amendment 31






Proposal for a regulation


Article 59 – paragraph 1 – point c a (new)





 










(ca)






ensure the highest standard of quality of the data exchanged, with the highest degree of transparency, where appropriate.











Amendment 32






Proposal for a regulation


Article 59 – paragraph 2 a (new)





 




2a.
   
Member States shall inform the Commission annually any cases in which other Member States have refused to provide the requesting Member State with information or have prevented the requesting Member State from carrying out an administrative inquiry where a request was introduced in due form. Those requested Member States shall inform the Commission of the grounds on which they refused to give the information or facilitate the inquiry. The Commission shall examine the information provided and shall make appropriate recommendations. Those recommendations shall be forwarded to the European Parliament and the Council.







Amendment 33






Proposal for a regulation


Article 60 – paragraph 2 a (new)





 




2a.
   
Where the measures adopted under the procedure referred to in paragraph 2 refer to or imply the processing of personal data, the European Data Protection Supervisor shall be consulted.








(1)  OJ C 77, 28.3.2002, p. 1.

(2)  

OJ C 295 E, 4.12.2009, p. 13.



(3)  

OJ C 21 E, 28.1.2010, p. 3.



(4)  

OJ L 8, 12.1.2001, p. 1.