Administrative cooperation in the field of excise duties * European Parliament legislative resolution of 29 March 2012 on the proposal for a Council regulation on Administrative Cooperation in the field of excise duties (COM(2011)0730 – C7-0447/2011 – 2011/0330(CNS))
Date: 2012-03-29
Institutions: Committee on Economic and Monetary Affairs, Committee on the Internal Market and Consumer Protection, European Parliament
Subjects: administrative cooperation, disclosure of information, electronic document management, exchange of information, excise duty, fraud, information technology applications, tax avoidance, tax evasion








CE2013257EN.01009802.xml










6.9.2013   


EN


Official Journal of the European Union


CE 257/98





Thursday 29 March 2012Administrative cooperation in the field of excise duties *
P7_TA(2012)0108
European Parliament legislative resolution of 29 March 2012 on the proposal for a Council regulation on Administrative Cooperation in the field of excise duties (COM(2011)0730 – C7-0447/2011 – 2011/0330(CNS))
2013/C 257 E/21
(Special legislative procedure – consultation)

The European Parliament,






—


having regard to the Commission proposal to the Council (COM(2011)0730),










—


having regard to Article 113 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C7-0447/2011),










—


having regard to Rule 55 of its Rules of Procedure,










—


having regard to the report of the Committee on Economic and Monetary Affairs (A7-0044/2012),










1.


Approves the Commission proposal as amended;










2.


Calls on the Commission to alter its proposal accordingly, in accordance with 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 substantially amend the Commission proposal;










5.


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










TEXT PROPOSED BY THE COMMISSION


AMENDMENT





Amendment 1






Proposal for a regulation


Recital 2 a (new)





 










(2a)






The creation of a European fiscal union should include an extended, rapid, efficient, user friendly and, as far as possible, automatic exchange of information among Member States in order to improve the fight against tax evasion.











Amendment 2






Proposal for a regulation


Recital 11











(11)


Feedback is an appropriate means to ensure continual improvement of the quality of the information exchanged. A framework for the provision of feedback should therefore be put in place.












(11)


Feedback is an appropriate means to ensure continual improvement of the quality of the information exchanged 
and to simplify bureaucratic procedures
. A framework for the provision of feedback should therefore be put in place.









Amendment 3






Proposal for a regulation


Recital 14 a (new)





 










(14a)






Personal data processed in accordance with this Regulation should be kept for no longer than necessary, in compliance with the applicable national and Union law.











Amendment 4






Proposal for a regulation


Recital 19











(19)


For the purposes of an effective application of this Regulation, it may be necessary to limit the scope of certain rights and obligations laid down by Directive 95/46/EC, specifically the rights defined in Articles 10, 11(1), 12 and 21 thereof, in order to safeguard the interests referred to in Article 13(1)(e) of that Directive, , bearing in mind the potential loss of revenue for Member States and the crucial importance of information covered by this Regulation for the effectiveness of the fight against fraud. Member States should be obliged to apply such limitations, to the extent they are necessary and proportionate.












(19)


For the purposes of an effective application of this Regulation, it may be necessary to limit the scope of certain rights and obligations laid down by Directive 95/46/EC, specifically the rights defined in Article 10, Article 11(1) and Articles 12 and 21 thereof, in order to safeguard the interests referred to in Article 13(1)(e) of that Directive, bearing in mind the potential loss of revenue for Member States and the crucial importance of information covered by this Regulation for the effectiveness of the fight against fraud. Member States should be obliged to apply such limitations to the extent they are necessary and proportionate. 
Given the need to preserve evidence in cases of suspected fiscal irregularities or fraud and to prevent interference with the correct assessment of compliance with excise legislation, it should be possible, where necessary, to restrict the obligations of the data controller and the rights of the data subject relating to the provision of information, access to data and publicising of processing operations, in the course of the exchange of personal data under this Regulation.











Amendment 5






Proposal for a regulation


Recital 20











(20)


In order to ensure uniform conditions for the implementation of Articles 8, 16, 19, 20, 21 and 34 of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers.












(20)


In order to ensure uniform conditions for the implementation of this Regulation, 
and to describe the main categories of data that can be exchanged by Member States under this Regulation,
 implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers.









Amendment 6






Proposal for a regulation


Recital 20 a (new)





 










(20a)






Processing of personal data relating to offences, criminal convictions or security measures is to be carried out in accordance with Article 8(5) of Directive 95/46/EC or Article 10(5) of Regulation (EC) No 45/2001.











Amendment 7






Proposal for a regulation


Recital 22











(22)


It is necessary to monitor and evaluate the functioning of this Regulation. Provision should thus be made for collection of statistics and other information by Member States and for the preparation of regular reports by the Commission.












(22)


It is necessary to monitor and evaluate the functioning of this Regulation. Provision should thus be made for collection of statistics and other information by Member States and for the preparation of regular reports by the Commission. 
The data collected by the Member States and the Commission reports should be submitted annually and made available to the European Parliament and to the Council.











Amendment 8






Proposal for a regulation


Recital 25 a (new)





 










(25a)






The Commission should establish a new VAT and excise duties forum, similar to the Joint Transfer Pricing Forum (JTPF), within which companies can address issues relating to corporate VAT and disputes between Member States.











Amendment 9






Proposal for a regulation


Article 8 – paragraph 3





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




3.   The request referred to in paragraph 1 may include a reasoned request for a specific administrative enquiry.





Amendment 10






Proposal for a regulation


Article 8 – paragraph 5





5.   The requested authority may request the requesting authority to provide a report on the follow-up action taken by the requesting Member State on the basis of the provided information. If such a request is made, the requesting authority shall, without prejudice to rules on secrecy and data protection applicable in its Member State, send such report as soon as possible
, provided that it does not impose a disproportionate burden on it
.


5.   The requested authority may request the requesting authority to provide a report on the follow-up action taken by the requesting Member State on the basis of the provided information. If such a request is made, the requesting authority shall, without prejudice to rules on secrecy and data protection applicable in its Member State, send such report as soon as possible.





Amendment 11






Proposal for a regulation


Article 9 – paragraph 4





4.   Where the use of the mutual administrative assistance document is impractical, the exchange of messages may be carried out in whole or in part by other means. In such exceptional cases the message shall be accompanied by an explanation of why the use of the mutual administrative assistance document was impractical.


4.   Where the use of the mutual administrative assistance document is impractical, the exchange of messages may be carried out in whole or in part by other means. In such exceptional cases
, where the requested authority considers this to be necessary,
 the message shall be accompanied by an explanation of why the use of the mutual administrative assistance document was impractical.





Amendment 13






Proposal for a regulation


Article 13 – paragraph 1





1.   
With a view to exchanging the information necessary
 to assure the correct application of excise legislation, two or more Member States may agree, on the basis of a risk analysis, to conduct simultaneous controls, in their own territory, of the excise duty situation of one or more economic operators or other persons, that are of common or complementary interest, whenever such controls would appear to be more effective than controls carried out by only one Member State.


1.   
In order
 to assure the correct application of excise legislation, two or more Member States may agree, on the basis of a risk analysis
, and where appropriate
, to conduct simultaneous controls, in their own territory, of the excise duty situation of one or more economic operators or other persons, that are of common or complementary interest, whenever such controls would appear to be more effective than controls carried out by only one Member State.





Amendment 15






Proposal for a regulation


Article 15 – paragraph 4 – subparagraph 1 – point a











(a)


the exact categories of information that shall be exchanged under Article 15(1);












(a)


the exact categories of information that are to be exchanged under Article 15(1)
, with the objective of creating a comprehensive list of information, which will be updated twice a year in order to align it to new exchange needs
;









Amendment 16






Proposal for a regulation


Article 16 – paragraph 1 – subparagraph 2





To that end, 
they may
 use the computerised system where the system is capable of processing such information.


To that end, 
it is desirable that they
 use the computerised system where the system is capable of processing such information.





Amendment 17






Proposal for a regulation


Article 16 – paragraph 2





2.   The authority having forwarded information to another authority under paragraph 1 may request that other authority to provide a report on the follow-up action taken by the requesting Member State on the basis of the provided information. If such a request is made, the other authority shall, without prejudice to rules on secrecy and data protection applicable in its Member State, send such report as soon as possible, provided that it does not impose a disproportionate administrative burden on it.


2.   The authority having forwarded information to another authority under paragraph 1 may request that other authority to provide a report on the follow-up action taken by the requesting Member State on the basis of the provided information. 
Where the authority has forwarded the information following discovery of an unusual but economically significant irregularity, it shall request such a report on follow-up action.
 If such a request is made, the other authority shall, without prejudice to rules on secrecy and data protection applicable in its Member State, send such report as soon as possible, provided that it does not impose a disproportionate administrative burden on it.





Amendment 18






Proposal for a regulation


Article 19 – paragraph 2 – point b











(b)


the name and address of the economic operator or premises;












(b)


the name and address of the economic operator or premises 
or, for registered consignees referred to in point (a)(ii) of paragraph 1, the address for service approved by the competent authorities of the Member State of registration
;









Amendments 19 and 20






Proposal for a regulation


Article 23





Requests for assistance, including requests for notifications, and attached documents may be made in any language agreed between the requested and requesting authority. The requests shall only require an accompanying translation, into the official language or one of the official languages of the Member State in which the requested authority is established, if the requested authority provides a justification explaining the need for translation.


Requests for assistance, including requests for notifications, and attached documents may be made in any language agreed 
in advance
 between the requested and requesting authority. The requests shall only require an accompanying translation, into the official language or one of the official languages of the Member State in which the requested authority is established, if the requested authority provides a 
reasonable
 justification explaining the need for translation.





Amendment 21






Proposal for a regulation


Article 25 – paragraph 3







3.
   
The competent authority of a Member State may refuse to forward information if the requesting Member State cannot, for legal reasons, provide similar information.






deleted







Amendment 22






Proposal for a regulation


Article 25 – paragraph 4





4.   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. Member States may not refuse to supply information on a economic operator on the sole grounds that this information is held by a bank or other financial institution, by a nominee or a person acting as agent or fiduciary or because it relates to the ownership interests in a legal person.


4.   The provision of information may be refused where it would 
demonstrably
 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. Member States may not refuse to supply information on a economic operator on the sole grounds that this information is held by a bank or other financial institution, by a nominee or a person acting as agent or fiduciary or because it relates to the ownership interests in a legal person.





Amendment 23






Proposal for a regulation


Article 28 – paragraph 2 – subparagraph 2





However, 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 in that Member State.


However, the competent authority of the Member State providing the information 
may
 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 in that Member State.





Amendment 24






Proposal for a regulation


Article 28 – paragraph 4 – subparagraph 1





4.   
All storage or exchange
 of 
information
 by Member States referred to in this Regulation shall be subject to the national provisions implementing Directive 95/46/EC.


4.   
Processing
 of 
personal data
 by Member States referred to in this Regulation shall be subject to the national provisions implementing Directive 95/46/EC.





Amendment 25






Proposal for a regulation


Article 32 – paragraph 2





2.   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 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 national law, for the same purposes for which this information has been supplied and in compliance with Directive 95/46/EC, 
in particular
 provisions on transfers of personal data to third countries, and the national legal measures implementing the Directive.


2.   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 legislation, information obtained under this Regulation may be communicated 
by a competent authority of a Member State
 to that third country, with the consent of the competent authorities which supplied the information, in accordance with their national law, for the same purposes for which this information has been supplied and in compliance with Directive 95/46/EC, 
including the
 provisions on transfers of personal data to third countries, and the national legal measures implementing the Directive.





Amendment 26






Proposal for a regulation


Article 34 – paragraph 1





1.   The Member States and the Commission shall examine and evaluate the application of this Regulation. To that end, the Commission shall regularly 
summarise
 the experience of the Member States with the aim of improving the operation of the system established by this Regulation.


1.   The Member States and the Commission shall examine and evaluate the application of this Regulation. To that end, the Commission shall regularly 
compare and analyse
 the experience of the Member States with the aim of improving the operation of the system established by this Regulation.





Amendment 27






Proposal for a regulation


Article 34 – paragraph 1 a (new)





 




1a.
   
The Commission shall present to the European Parliament and to the Council a report on fraud in the field of excise duties by 31 December 2012, together with amendments to this Regulation, if appropriate.







Amendment 28






Proposal for a regulation


Article 34 – paragraph 2 – subparagraph 2





With a view to evaluating the effectiveness of this system of administrative cooperation in enforcing the application of the excise legislation and combating evasion and fraud concerning excise duties, Member States 
may
 communicate to the Commission any available information other than information referred to in the first subparagraph.


With a view to evaluating the effectiveness of this system of administrative cooperation in enforcing the application of the excise legislation and combating evasion and fraud concerning excise duties, Member States 
shall
 communicate to the Commission any available information other than information referred to in the first subparagraph.





Amendment 29






Proposal for a regulation


Article 37





Every 
five
 years from the date of entry into force of this Regulation and based in particular on the information provided by the Member States, the Commission shall report to the European Parliament and to the Council on the application of this Regulation.


Every 
three
 years from the date of entry into force of this Regulation and based in particular on the information provided by the Member States, the Commission shall report to the European Parliament and to the Council on the application of this Regulation.