Proposal for a COUNCIL REGULATION amending Regulation (EU) No 389/2012 on administrative cooperation in the field of excise duties as regards the content of electronic register
Date: 2018-05-25
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: administrative cooperation, computer system, disclosure of information, electronic document management, exchange of information, excise duty, information storage and retrieval, tax avoidance, tax evasion

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   EUROPEAN COMMISSION  Brussels, 25.5.2018 COM(2018) 349 final 2018/0181 (CNS)  Proposal for a COUNCIL REGULATION amending Regulation (EU) No 389/2012 on administrative cooperation in the field of excise duties as regards the content of electronic register   
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
Council  Regulation  (EU)  n°  389/20121  lays  down  the  legal  basis  for  administrative 
cooperation between Member States. 

This  proposal  accompanies  the  proposal  for  a  Council  Directive  laying  down  the  general 
arrangement for excise duty with regards to Chapter V of Council Directive XXX/EC2. This 
concerns the automation of the supervision of movements of excise goods which have been 
released for consumption in one Member State and that are being moved to another Member 
State in order to be delivered for commercial purposes in that other Member State. 

The  new  arrangements  will  require  the  registration  of  economic  operators  moving  goods 
under Chapter V of Directive XXX/EC3 in the register of economic operators that is currently 
restricted to economic operators who make use of the arrangements in Chapters III and IV of 
Directive XXX/EC4. The current proposal implements this requirement into Regulation (EU) 
n° 389/2012. 

• 

Consistency with existing policy provisions in the policy area 

The proposal is linked with the recast of Council Directive 2008/118/EC. 

• 

Consistency with other Union policies 

Not applicable.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Article 113 of the Treaty on the Functioning of the European Union 
(TFEU).  This  article  provides  for  the  Council,  acting  unanimously  in  accordance  with  the 
special legislative procedure and after consulting the European Parliament and the Economic 
and Social Committee, to adopt provisions for the harmonisation of Member States' rules in 
the area of indirect taxation.  

• 

Subsidiarity (for non-exclusive competence)  

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the European Union. 

The objectives of the proposal cannot be sufficiently achieved by the Member States and can 
be  better  achieved  at  European  Union  level.  Existing  national  registration  procedures  vary 
widely and are not suitable as a basis for automation of these procedures. 

• 

Proportionality 

The proposed amendment does not go beyond what is necessary to address the issues at stake 
and, in that way, to achieve the Treaty's objectives of a proper and effective functioning of the 
Internal Market.  

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OJ L 121, 2.5.2012, p. 1 
COM(2018) 346 
COM(2018) 346 
COM(2018) 346 

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This proposal complies with the principles of proportionality as set out in Article 5, paragraph 
4 of the Treaty on the European Union.  

The  objective  of  the  proposal  is  to  introduce  the  obligation  of  registration  of  economic 
operators moving goods under Chapter V, section 2 of Directive XXX/EC5. In the absence of 
that proposal the full automation of movements of goods released for consumption will not be 
possible.  

• 

Choice of the instrument 

Council Regulation. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Directive 2008/118/EC was evaluated and the proposal for a Council Directive laying down 
the general arrangement for excise duty is built on this evaluation and the Commission Report 
to the Council and the European Parliament "on the implementation and evaluation of Council 
Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise 
duty"  from  21/04/2017  (COM(2017)  184  final).  The  report  stressed  the  need  for  further 
automation and this proposal only concerns a minor adaptation reflecting this policy option. 

• 

Stakeholder consultations 

Stakeholder  consultations  took  place  in  the  context  of  the  revision  of  Council  Directive 
2008/118/EC.  

• 

Impact assessment 

No  separate  impact  assessment  was  necessary  as  the  policy  choice  of  further  automation  is 
underpinned by the impact assessment for the recast of Directive 2008/118/EC. 

• 

Regulatory fitness and simplification 

The  evaluation  of  Directive  2008/118/EC  was  carried  out  within  the  framework  of  the 
Commission’s REFIT programme.  

• 

Fundamental rights 

This  proposal  respects  the  fundamental  rights,  particularly  the  right  to  privacy  though  the 
existing provision on data protection contained in Regulation (EU) No 389/2012.  

4. 

BUDGETARY IMPLICATIONS 

Any financial impact relating to the introduction of Phase 4 of EMCS results from Decision 
XXX/EC6.  The  budgetary  impact  of  the  central  development  and  operation  of  an  extended 
new  service  will  be  covered  by  the  FISCALIS  budget  within  the  appropriations  already 
foreseen in the official financial programming. No additional resources will be required from 
the  EU  budget.  Moreover,  this  initiative  does  not  intend  to  prejudge  the  Commission's 
proposal on the next Multiannual Financial Framework. 

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COM(2018) 346 
COM(2018) 341 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable.  

• 

Explanatory documents (for directives) 

No  explanatory  documents  on  the  transposition  of  the  provisions  of  this  proposal  are 
considered necessary.  

• 

Detailed explanation of the specific provisions of the proposal 

The proposal amends the scope of Article 19 of the Regulation to include two new categories 
of economic operators: certified consignors, who are registered as consignors for excise goods 
that have already been released for consumption and certified consignees who are registered 
as  consignees  for  excise  goods  that  have  already  been  released  for  consumption.  An 
authorised warehousekeepers and registered consignors will have possibility to act as certified 
consignors,  and  authorised  warehousekeepers  and  registered  consignees  as  certified 
consignees.  The  competent  authorities  of  the  Member  State  will  have  to  be  informed  about 
that fact and this information should as well be included in the register.  

Additionally,  according  to  the  proposal,  the  electronic  register  will  include  information 
concerning  the  registered  consignor's  right  to  leave  empty  the  destination  fields  in  the  draft 
electronic  administrative  document  when  moving  energy  products  under  duty  suspension 
arrangement  by  sea  or  inland  waterways.  Under  Article  23  of  Directive  XXX/EC7  the 
authorised  warehouse  keeper  and  the  registered  consignor  may  omit  the  destination  field.  
Currently,  in  Regulation  (EU)  n°  389/2012  the  central  register  includes  such  information 
concerning the empty destination field only in case of an authorised warehouse keeper.  

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COM(2018) 346 

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2018/0181 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EU) No 389/2012 on administrative cooperation in the field of 
excise duties as regards the content of electronic register  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 113 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Parliament8,  
Having regard to the opinion of the European Economic and Social Committee9, 

Acting in accordance with a special legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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Article  19  of  Council  Regulation  (EU)  No  389/201210  sets  down  an  obligation  for 
Member States to maintain electronic registers of authorisations of economic operators 
and  warehouses  that  are  engaged  in  moving  excise  goods  under  duty  suspension 
arrangements.  

Directive  XXX/EC  extends  the  use  of  the  computerised  system,  which  is  currently 
used  to  supervise  movements  of  excise  goods  under  duty  suspension,  to  the 
supervision of excise goods released for consumption in the territory of one Member 
State and then moved to the territory of another Member State in order to be delivered 
for commercial purposes.  

In  order  to  allow  for  the  proper  functioning  of  the  computerised  system  by  ensuring 
storage of complete, up to date and accurate data, it is necessary to amend the scope of 
Article  19  of  Regulation  (EU)  No  389/2012  to  include  two  new  categories  of 
economic operators: certified consignors, who are registered as consignors for excise 
goods that have already been released for consumption and certified consignees who 
are  registered  as  consignees  for  excise  goods  that  have  already  been  released  for 
consumption.  

In  accordance  with  Article  23  of  Directive  XXX/EC,  in  the  case  of  movement  of 
energy products under a duty suspension arrangement by sea or inland waterways, the 
competent authorities of the Member State of dispatch may authorise the consignor to 
omit  the  details  of  the  consignee  at  the  time  of  dispatch  in  the  draft  electronic 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
Council  Regulation  (EU)  No  389/2012  of  2  May  2012  on  administrative  cooperation  in  the  field  of 
excise duties and repealing Regulation (EC) No 2073/2004 (OJ L 121, 8.5.2012, p. 1). 

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(5) 

(6) 

(7) 

(8) 

administrative  document  referred to  in  Article  21(2)  of  that Directive. In  accordance 
with Regulation (EU) No 389/2012 only an authorised warehouse keeper is to include 
that  information  in  the  electronic  register.  It  is  essential  that  also  the  registered 
consignor  is  able  to  introduce  into  the  electronic  register  the  information  concerning 
his right to omit the details of the consignee at the time of dispatch.  

Since the objective of this Regulation, namely the extension of the electronic register 
to include economic operators moving excise goods released for consumption, cannot 
be  sufficiently  achieved  by  the  Member  States  but  can  rather,  by  reason  of  ensuring 
the  harmonised  functioning  of  the  computerised  system  and  facilitating  the  fight 
against  fraud,  be  better  achieved  at  Union  level,  the  Union  may  adopt  measures,  in 
accordance  with  the  principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on 
European Union. In accordance with the principle of proportionality, as set out in that 
Article, this Regulation does not go beyond what is necessary in order to achieve that 
objective.  

This Regulation respects the fundamental rights and observes the principles which are 
recognised by the Charter of Fundamental Rights of the European Union, in particular 
the right to the protection of personal data. In the view of the limits set by the present 
Regulation,  the  processing  of  such  data  carried  out  within  the  framework  of  this 
Regulation does not go beyond what is necessary and proportionate for the purpose of 
the protecting the legitimate fiscal interest of the Member States. 

The  European  Data  Protection  Supervisor  was  consulted  in  accordance  with  Article 
28(2)  of  Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the 
Council11. 

In order to align the application date of this Regulation with the application date of the 
provisions of Directive XXX/EC on automation of movements of excise goods which 
have  been  released  for  consumption  in  the  territory  of  one  Member  State  and  are 
moved  to  the  territory  of  another  Member  State  in  order  to  be  delivered  for 
commercial  purposes  in  the  territory  of  that  other  Member  State  and  to  allow  the 
Member  States  adequate  time  to  prepare  for  the  changes  resulting  from  this 
Regulation, it should apply from 14 February 2022. 

(9) 

Regulation (EU) No 389/2012 should therefore be amended accordingly, 

HAS ADOPTED THIS REGULATION: 

Article 19 of Regulation (EU) No 389/2012 is amended as follows:  

Article 1 

(1) 

in paragraph 1(a), the following points (iv) and (v) are added: 

"(iv) certified consignors within the meaning of point (11) of Article 4 of Directive XXX/EC; 

(v) certified consignees within the meaning of point (12) of Article 4 of Directive XXX/EC;"; 

(2) 

paragraph 2 is amended as follows:  

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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 (OJ L 8, 12.1.2001, p.1).  

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(a)  points (f) and (g) are replaced by the following:  

"(f) for authorised warehousekeepers, the tax warehouse or the list of tax warehouses to which 
his authorisation applies and, if applicable under national legislation, an indication that he is 
authorised  to  omit  the  details  of  the  consignee  at  the  time  of  dispatch  in  accordance  with 
Article 23 of Directive XXX/EC, that he is authorised to split a movement in accordance with 
Article  24  of  Directive XXX/EC  or  is  authorised  to  have  excise  goods  moved  to  a  place  of 
direct  delivery  in  accordance  with  Article  17(4)  of  that  Directive,  an  indication  that  he  is 
acting as a certified consignor or a certified consignee in accordance with Article 36 (6) and 
(7) of Directive XXXEC;  

(g) for registered consignees, if applicable under national legislation, an indication that he is 
authorised to have excise goods moved to a place of direct delivery in accordance with Article 
17(4)  of  Directive  XXX/EC,  an  indication  that  he  is  acting  as  a  certified  consignee  in 
accordance with Article 36 (7) of Directive XXX/EC;"; 

(b) 

the following point (k) is added:  

"(k)  for  registered  consignors,  an  indication  that  he  is  authorised  to  omit  the  details  of  the 
consignee  at  the  time  of  dispatch  in  accordance  with  Article  23  of  Directive  XXX/EC,  an 
indication  that  he  is  acting  as  a  certified  consignor  in  accordance  with  Article  36  (6)  of 
Directive XXX/EC.". 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 2 

It shall apply from 14 February 2022.  

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the Council 
The President 

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