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 2009-2010
Date: 2012-02-15
Institutions: European Commission
Subjects: EU Member State, EU statistics, European tax cooperation, exchange of information, mutual assistance, tax collection

EUROPEAN COMMISSION 

Brussels, 15.2.2012  
COM(2012) 58 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 2009-2010 

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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 2009-2010 

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, in accordance with Directive 2008/55/EC 
of 26 May 20081. Under this directive the Commission is required to produce a regular report 
on  the  use  of  the  mutual  assistance  arrangements.  The  present  report  relates  to  recovery 
assistance granted in 2009-2010.2 It also deals with the current changes and initiatives in this 
field. 

2. 

ANALYSIS OF THE USE OF MUTUAL ASSISTANCE MEASURES IN 2009-2010 

Effective  collection  and  recovery  of  taxes  is  a  cornerstone  of  an  efficient  and  fair  taxation 
system.  Especially  in  times  where  all  Member  States  face  budgetary  challenges,  authorities 
have  to  strive  for  improving  tax  collection  and  recovery.  In  this  regard,  mutual  recovery 
assistance between the tax authorities of different Member States constitutes an essential tool, 
helping to protect the financial interests of the Member States and of the European Union as a 
whole. This is confirmed by the ever increasing use of the EU legislative framework for tax 
recovery assistance. 

2.1. 

Increasing use of EU mutual assistance requests 

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

It  also  appears  that  the  EU  legislative  framework  is  much  more  widely  used  between  EU 
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) shows a diminishing trend in the period 2005-2010. (Data on the use of other 
mutual assistance arrangements are only available for the period from 2005 to 2010)3. 

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OJ L 150, 10.6.2008, p. 28. 
The first report (document COM(2006)43, published on 8.2.2006) provided an overview of the mutual 
recovery  assistance  provided  in  2003  and  2004.  The  second  report  (document  COM(2009)451, 
published on 4.9.2009) provided an overview of the mutual recovery assistance provided in 2005-2008. 
Information according to the statistics communicated by requested Member States. 

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2.1.1.  Evolution of the requests for information 

3000

2500

2000

1500

1000

500

0

2003

2004

2005

2006

2007

2008

2009

2010

2.1.2. Evolution of the requests for notification 

2000

1500

1000

500

0

2003

2004

2005

2006

2007

2008

2009

2010

2.1.3. Evolution of the requests for recovery 

9000

8000
7000

6000

5000

4000

3000
2000

1000

0

2003

2004

2005

2006

2007

2008

2009

2010

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

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

– 

– 

– 

– 

requests relating to customs duties (and other amounts referred to in Art. 2(a)-
(d) of Directive 2008/55/EC) represent a minor part of all requests (5 % in 2009 and 
9 % in 2010); 

requests  concerning  VAT  claims  (referred  to  in  Art.  2(e)  of  Directive 
2008/55/EC)  no  longer  represent  the  biggest  part  of  the  requests  for  recovery 
measures. Nevertheless, their part remains considerable (41 % in 2009 and 26 % in 
2010); 

requests  relating  to  excise  duties  (referred  to  in  Art.  2(f)  of  Directive 
2008/55/EC) also represent a fluctuating part of all requests (7 % in 2009 and 21 % 
in 2010); 

requests  relating  to  taxes  on  income  and  capital  (referred  to  in  Art.  2(g)  of 
Directive 2008/55/EC) represent a major part of the requests (47 % in 2009 and 44 % 
in 2010). 

100%

80%

60%

40%

20%

0%

Art. 2, g

Art. 2, f
Art. 2, e

Art. 2, a-d

2005

2006

2007

2008

2009

2010

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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; for 2008 on data reported by 25 Member States; for 2009 and 2010 on 
data reported by 26 Member States. 
Requests  relating  to  taxes  on  insurance  premiums  (referred  to  in  Art.  2(h)  of  Directive  2008/55/EC) 
represent such a small part of all requests that they do not appear in this table. 

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2.2. 

Increasing amounts recovered 

2.2.1. Global evolution of the amounts for which recovery assistance was requested 

The  amounts  for  which  recovery  assistance  was  requested  in  2009  and  2010  dropped 
considerably, compared to the preceding years (2003 = 100 %). This evolution is in line with 
the  temporary  drop  of  the  number  of  recovery  requests  in  2009;  but  in  contrast  with  the 
increase of the number of recovery requests in 2010. 

300

250

200

150

100

50

0

2003

2004

2005

2006

2007

2008

2009

2010

2.2.2. Global evolution of the amounts recovered 

The  evolution  of  the  amounts  that  are  effectively  recovered  shows  an  increasing  tendency. 
Compared  to  the  amounts  recovered  in  2003  (100  %),  the  recovered  amounts  have  risen  to 
almost 840 % in 2009 and almost 880 % in 20105. 

900

800
700

600
500

400
300

200
100

0

2003

2004

2005

2006

2007

2008

2009

2010

2.2.3.  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 

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

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previous  years.  The  following  graphics  show,  with  regard  to  the  amounts  effectively 
recovered in the years 2005-2010, to which year the requests concerned relate. It appears from 
these  statistics  that  about  90  %  of  the  amounts  recovered  in  these  years  relates  to  requests 
made  in  the  same  year  (indicated  by  "="  in  the  graphics  below)  or  in  the  three  previous 
calendar years (indicated as "-1" to "-3" in the graphics below). 

100%

80%

60%

40%

20%

0%

-5…

-4

-3

-2

-1

=

2005

2006

2007

2008

2009

2010

2.2.4. Global recovery ratio 

The  statistics  show  that  in  the  period  2009-2010,  the  recovered  amounts  have  continued  to 
increase  considerably,  while  the  amounts  for  which  recovery  assistance  is  requested  have 
decreased.  However,  this  does  not  allow  to  conclude  that  the  global  recovery  ratio  has 
increased  a  lot,  compared  to  the  situation  described  in  the  previous  report  (where  it  was 
observed that the global recovery ratio for the recovery requests between EU Member States 
could  then  be  expected  to  be  around  5  %).  It  must  indeed  be  taken  into  account  that  the 
recovery  measures  taken  in  the  execution  of  a  request  received  in  a  certain  year  do  not 
produce all their effects in the same year (see point 2.2.3.). The higher amounts recovered in 
2009  and  2010  largely  relate  to  requests  sent  in  the  years  2006-2008,  where  recovery 
assistance was requested for higher amounts too. 

Anyhow,  the  decrease  of  the  amounts  for  which  recovery  assistance  was  requested  in  the 
period 2009-2010 may in the coming years lead to an increase of the recovery rate for these 
requests. It can be expected that this rate will even end higher than the recovery rate of 6 % 
which has been obtained so far for the recovery requests received in 2004.6 Nevertheless, it 
remains important to further improve the global recovery ratio.  

6 

It should also 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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3. STRENGTHENING THE MUTUAL RECOVERY ASSISTANCE 

In  its  previous  report  (document  COM(2009)451  of  4.9.2009),  the  Commission  emphasized 
that  special  efforts  were  needed  to  increase  the  efficiency  of  the  recovery  assistance  and  to 
reinforce: 

– 

– 

the possibilities for providing recovery assistance under the EU legislation, and 

the  recovery  instruments  available  to  the  tax  authorities  under  their  domestic 
legislation. 

3.1. New EU legislation 

On 16 March 2010, the Council adopted Directive 2010/24/EU concerning mutual assistance 
for the recovery of claims relating to taxes, duties and other measures.7 The Member States 
have  to  apply  this  new  directive  from  1  January  2012.  The  implementing  Commission 
provisions, which got the unanimous support of the Recovery Committee at its meeting of 3 
and 4 October 2011, will be adopted before the end of 2011. 

This  new  directive  is  a  milestone  towards  a  more  efficient  recovery  assistance.  The  major 
improvements relate to: 

– 

the  introduction  of  a  uniform  instrument  permitting  enforcement  in  the  requested 
Member State and a uniform notification form 

The adoption of these uniform instruments allows to avoid the current problems and 
costs of translation and recognition of foreign enforcement titles. A first  attempt to 
reduce these problems was made in 2001, when Council Directive 2001/44/EC was 
adopted.8 At that moment, the idea was already to permit more efficient and effective 
recovery  of  claims,  by  providing  that  the  instrument  permitting  enforcement  of  the 
claim should, in principle, be treated as an instrument of the requested Member State. 
This  approach  was  in  line  with  the  objectives  in  civil,  commercial  and  criminal 
matters, following the  guidelines set out by  the  European  Council  at  its  meeting  in 
Tampere on 15 and 16 October 1999, which held that enhanced mutual recognition 
of judicial decisions and judgments would facilitate cooperation between authorities 
and  contribute  to  legal  certainty  in  the  European  Union.9  At  that  time,  it  appeared 
however that this principle could not yet be fully applied and Directive 2001/44/EC 
still provided that, where appropriate and in accordance with the provisions in force 
in  the  requested  Member  State,  the  instrument  permitting  enforcement  may  still  be 
accepted  as,  recognised  as,  supplemented  with,  or  replaced  by  an  instrument 
authorising  enforcement  in  the  territory  of  the  requested  Member  State.  Under  the 
new  directive,  the  adoption  of  a  uniform  instrument  to  be  used  for  enforcement 
measures  in  the  requested  Member  State,  as  well  as  the  adoption  of  a  uniform 
standard  form  for  notification  of  instruments  and  decisions  relating  to  the  claim, 
should resolve the problems of recognition and translation of instruments emanating 

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OJ L 84 of 31.3.2010, p. 1. 
Council Directive 2001/44/EC of 15 June 2001, OJ L 175 of 28.6.2001, p. 17. 
See Council draft programme of measures for implementation of the principle of mutual recognition of 
decisions  in  civil  and  commercial  measures  (OJ  C  12  of  15.1.2001,  p.  1)  and  Council  Programme  of 
measures to implement the principle of mutual recognition of decisions in criminal matters (OJ C 12 of 
15.1.2001, p. 10). 

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from another Member State. This will increase the efficiency of the mutual recovery 
assistance; 

– 

the extension of the scope 

The extension of the scope to all taxes and duties levied in the Member States will 
considerably simplify the work of the tax authorities: the same set of rules can now 
be applied to all tax recovery requests. This allows them to avoid the difficulties that 
result  from  the  application  of  several  agreements  and  arrangements,  each  with 
different  possibilities,  conditions,  modalities  and  communication  methods.  This 
extension  is  also  logic,  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 reinforcement of possibilities to request recovery assistance 

Under the existing rules, the applicant authority may not make a request for recovery 
unless  it  has  applied  appropriate  recovery  procedures  available  to  it  in  its  own 
Member  State,  and  the  measures  taken  will  not  result  in  the  payment  in  full  of  the 
claim  (Art.  7(2)(b)  of  Directive  2008/55/EC).  Under  the  new  directive,  the 
possibilities  to  request  recovery  assistance  have  been  enlarged.  Although  the 
applicant  authority  is  in  principle  still  expected  to  apply  appropriate  recovery 
procedures  available  in  its  own  Member  State  before  requesting  assistance,  an 
explicit  exception  is  provided  for  situations  "where  recourse  to  such  procedures  in 
the  applicant  Member  State  would  give  rise  to  disproportionate  difficulty"  (Art. 
11(2)(b)  of  Directive  2010/24/EU).  In  this  regard,  it  is  important  to  note  that  the 
Council has decided to use an identical wording as in Art. 19 of the Joint Council of 
Europe – OECD agreement on administrative assistance in tax matters. This allows 
to  conclude  that  this  new  provision  can  be  understood  in  the  same  way,  which 
implies  that  recovery assistance  can be  requested if  recovery  can  be  obtained more 
easily  in  the  requested  State.10  The  new  directive  thus  makes  it  possible  to  send 
recovery requests at an early stage. Experience indeed shows that the older the claim, 
the slimmer the recovery chances. Having the possibility to make requests at an early 
stage is  particularly  important in situations  of fraudulent debtors trying to dislocate 
assets and to escape from their payment obligations.  

The  use  of  new  standard  electronic  request  forms,  integrating  the  new  uniform  instruments 
and  allowing  an  automatic  translation,  will  further  facilitate  the  handling  of  assistance 
requests.  

3.2. 

Reinforcement of the collection and recovery systems within the Member States 

The success of the recovery assistance depends also on the strength of the national recovery 
actions. Member States are in a continuous quest for more effective collection and recovery 

10 

See Explanatory report to the Joint Council of Europe – OECD Agreement on administrative assistance 
in  tax  matters,  point  204:  "(…)  For  instance,  (…)  in  the  case  of  assistance  in  recovery,  some  assets 
might only be seized through lengthy proceedings in the applicant State, while there are other assets in 
the requested State that can be seized more easily." 

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processes. Improving these processes is primarily a matter for the Member States. However, 
in accordance with the recommendation of the Recovery Committee, the Commission will set 
up a project group to assist the Member States by developing best practices in this field. 

4. 

CONCLUSIONS AND FURTHER INITIATIVES 

The  statistics  show  that  the  mutual  recovery  assistance  arrangements  have  been  intensively 
used in the period 2009-2010. The increase of the recovered amounts proves the usefulness of 
this cooperation between the Member States.  

The  application  of  the  new  EU  legislation  from  1  January  2012  should  further  improve  the 
efficiency  of  the  recovery  assistance.  In  addition,  Member  States  have  to  examine  to  what 
extent their national tax collection and recovery legislation, processes and instruments can be 
improved.  To  this  end,  the  Commission  shall  set  up  Fiscalis  project  groups  to  develop  best 
practices recommendations in this field. The Commission shall also assist the Member States 
in  the  development  of  spontaneous  and  automatic  information  exchange  for  recovery 
purposes. On the basis of the Member States' experiences with the new legislative framework, 
the Commission shall also examine whether further EU initiatives should be taken to improve 
the  mutual  recovery  assistance,  in  particular  with  regard  to  precautionary  measures  and 
insolvency situations.  

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