Proposal for a COUNCIL REGULATION amending Regulation (EU) No 389/2012 as regards the exchange of information maintained in the electronic registers concerning economic operators who move excise goods between Member States for commercial purposes
Date: 2022-10-24
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: European tax cooperation, administrative cooperation, carriage of goods, data processing, exchange of information, excise duty, goods and services, information system, intra-EU transport, tax relief

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   EUROPEAN COMMISSION  Brussels, 24.10.2022  COM(2022) 539 final 2022/0331 (CNS)  Proposal for a COUNCIL REGULATION amending Regulation (EU) No 389/2012 as regards the exchange of information maintained in the electronic registers concerning economic operators who move excise goods between Member States for commercial purposes  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Intra-EU  commercial  movements  of  excise  goods  may  be  performed  under  suspension  of 
excise duty (hereinafter, ‘Duty Suspension’) or after they are 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  (hereinafter,  ‘Duty  Paid’).  Currently  only 
movements under Duty Suspension are monitored by the computerised system referred to in 
Article  1  of  Decision  (EU)  2020/263  of  the  European  Parliament  and  of  the  Council1.  For 
these  movements,  economic  operator  types  are  created  and  defined  in  Council  Directive 
2008/118/EC2. 

Under  Chapter  V  of  Council  Directive  2020/2623,  as  from  13  February  2023  Duty  Paid  
movements shall be monitored by the computerised system. Specific economic operator types 
for Duty Paid movements were created and defined in Council Directive 2020/262. 

Council  Regulation  (EU)  No  389/20124  lays  down  the  legal  basis  for  administrative 
cooperation  between  Member  States.  Each  Member  State  maintains  an  electronic  database 
containing  registers  with  the  data  of  the  economic  operators  engaged  in  the  movement  of 
excise goods. Within the context of administrative cooperation, the Member States exchange 
the data included in these registers with a central register operated by the Commission only as 
regards the economic operators moving goods under Duty Suspension. 

On  the  basis  of  Article  19  of  Council  Regulation  (EU)  No  389/2012,  as  from  13/2/2023, 
Member  States  will  maintain  in  the  same  electronic  database  registers  the  data  of  the 
economic operators who are engaged in the Duty Paid movements. These economic operators 
are defined in Council Directive 2020/262 as certified consignors and certified consignees.  

With  this  proposal,  the  Member  States  shall  align  the  procedure  of  exchanging  the  data  of 
economic operators moving  goods under  Duty Suspension  with  the exchange of data of the 
economic operators moving goods under Duty Paid. . 

This  alignment  will  further  complete  the  digitalisation  of  the  monitoring  of  movements  of 
excise goods released for consumption in the territory of one Member State and moved to the 
territory of another Member State in order to be delivered there for commercial purposes and 
improve the fight against tax fraud. 

Also,  this  proposal,  shall  replace  references  to  a  regulation  which  will  be  repealed.  More 
specifically,  Council  Regulation  (EU)  No  389/2012  refers  to  Commission  Regulation  (EC) 

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Decision  (EU)  2020/263  of  the  European  Parliament  and  of  the  Council  of  15  January  2020  on 
computerising the movement and surveillance of excise goods (OJ L 58, 27.2.2020, p. 43–48). 
Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise 
duty and repealing Directive 92/12/EEC (OJ L 9, 14.1.2009, p. 12–30). 
Council  Directive  (EU)  2020/262  of  19  December  2019  laying  down  the  general  arrangements  for 
excise duty (OJ L 58, 27.2.2020, p. 4). 
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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No  684/20095.  That  regulation  will  be  repealed  as  from  13/2/2023  and  replaced  by 
Commission  Delegated  Regulation  (EU)  .../...[OP  please  insert  publication  number  of  the 
Regulation  mentioned  in  the  footnote]6.  With  this  proposal  the  reference  of  the  previous 
regulation will be replaced with the reference of the new one. 

• 

Consistency with existing policy provisions in the policy area 

The proposal is linked to Council Directive (EU) 2020/262, which defines the movements of 
excise  goods  that  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  there  for 
commercial purposes. 

The  objective  of  this  proposal  is  to  widen  the  scope  of  Articles  15,  19  and  20  of  Council 
Regulation  EU  (No)  389/2012  in  order  for  Member  States  to  exchange  information 
concerning  all economic operators and not only those who are engaged in the movement of 
excise goods under duty suspension arrangements.  

This proposal is further linked to Council Directive (EU) 2020/262 as Delegated Regulation 
(EU) .../...[OP please insert publication number], which will replace Commission Regulation 
(EC) No 684/2009, is pursuant to Council Directive (EU) 2020/262. 

• 

Consistency with other Union policies 

This amendment is very technical and subsequently has no impact on other Union policies. 

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  achieved  by  the  Member  States  and  can  be  better 
achieved  at  European  Union  level.  Council  Regulation  EU  (No)  389/2012  provides 
harmonised rules as regards the exchange of data for the smooth operation of the movements 
of  excise  goods  between  the  Member  States,    in  the  absence  of  which  the  Member  States 
would possible set  them bilaterally  with  variations from  one Member State to  another. This 
proposal extends the application of the existing procedures of data exchange to the  economic 
operators  engaged  in  the  movement  of  excise  goods  which  have  been  released  for 

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Commission  Regulation  (EC)  No  684/2009  of  24  July  2009  implementing  Council  Directive 
2008/118/EC  as  regards  the  computerised  procedures  for  the  movement  of  excise  goods  under 
suspension of excise duty (OJ L 197, 29.7.2009, p. 24–64). 
Commission Delegated Regulation (EU) …/... of  … supplementing  Council  Directive  (EU) 2020/262 
by  establishing  the  structure  and  content  of  the  documents  exchanged  in  the  context  of  movement  of 
excise  goods,  and  establishing  thresholds  for  the  losses  due  to  the  nature  of  the  goods  (OJ  L  …)[OP 
please insert number and OJ reference]. 

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consumption in  the territory of one Member State and are moved to  the territory of another 
Member State in order to be delivered there for commercial purposes. 

• 

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.  

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 obligations of Member States regarding the 
exchange  of  the  data  of  economic  operators  moving  goods  under  Chapter  V,  section  2  of 
Directive (EU) 2020/262 maintained in the national registers with the central register. In the 
absence  of  this  proposal  the  full  exchange  of  information  will  not  be  possible,  negatively 
impacting  the  administrative  burden  on  economic  operators,  the  risk  of  fraud  and  the 
administrative cooperation between the competent authorities of the Member States. 

• 

Choice of the instrument 

Council Regulation  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Impact assessment 

The  impact  assessment  was  prepared  for  the  recast  of  Directive  2008/118/EC.  Council 
Directive  2008/118/EC  setting  out  general  arrangements  for  goods  subject  to  excise  duty, 
after  being  substantially  amended  several  times,  in  the  interests  of  clarity,  was  repealed  by 
Council Directive (EU) 2020/262. The proposal for the recast was accompanied by an impact 
assessment  on  Council  Directive  2008/118/EC  focusing  on  certain  areas,  one  of  which  was 
the  automation  of  intra-EU  movements  of  excise  goods  released  for  consumption.  Council 
Directive  (EU)  2020/262  addresses  the  computerisation  of  movements  of  excise  goods 
released for consumption, not provided for in 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 

No additional resources will be required from the EU budget. 

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5. 

• 

OTHER ELEMENTS 

Detailed explanation of the specific provisions of the proposal 

The proposal extends the scope of Article 15(1)(d) of Regulation (EU) No 389/2012  setting 
out  the  obligation  of  Member  States  to  exchange  necessary  information  where  the  total 
destruction  or  irretrievable  loss  in  movements  excise  goods  under  a  duty  suspension 
arrangement has occurred to the movements of excise goods 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 there for commercial purposes. 

Commission  Regulation  (EC)  No  684/2009  will  be  repealed  and  replaced  by  Delegated 
Regulation  (EU)  .../....[OP  please  insert  publication  number].  The  proposal  replaces  the 
reference  to  Annex II, code list  11 of Commission Regulation  (EC) No 684/2009  in  Article 
19(2)(c)  of  this  regulation  with  the  reference  to  Annex  II,  code  list  10  of  Delegated 
Regulation (EU) .../....[OP please insert publication number]. 

The proposal extends the scope of the first paragraph of Article 19 (4) of Regulation (EU) No 
389/2012,  as  regards the obligation of Member  States to  exchange via a central  register the 
information  contained  in  the  respective  national  registers  concerning  economic  operators 
engaged  in  moving  excise  goods  under  duty  suspension  arrangements  between  Member 
States,  to  the  movements  of  excise  goods  released  for  consumption  in  the  territory  of  one 
Member  State  and  moved  to  the  territory  of  another  Member  State  in  order  to  be  delivered 
there for commercial purposes.  

The first sentence of Article 20 (1) of Regulation (EU) No 389/2012 refers to the possibility 
to  validate  electronically  the  excise  registration  numbers  of  economic  operators  engaged  in 
the movement of excise goods under duty suspension arrangement.  The proposal extends its 
scope  so  that  this  option  applies  to  the  excise  registration  numbers  of  economic  operators 
moving  excise  goods  released  for  consumption  in  the  territory  of  one  Member  State  and 
moved to the territory of another Member State in order to be delivered there for commercial 
purposes. 

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2022/0331 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EU) No 389/2012 as regards the exchange of information 
maintained in the electronic registers concerning economic operators who move excise 
goods between Member States for commercial purposes 

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 Parliament1,  
Having regard to the opinion of the European Economic and Social Committee2,  

Acting in accordance with a special legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

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Article 36 of Council Directive (EU) 2020/2623 provides that the movement 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 there 
for  commercial  purposes,  is  to  take  place  under  cover  of  an  electronic  simplified 
administrative document. That Article thus extends the use of the computerised system 
under  Decision  (EU)  2020/263  of  the  European  Parliament  and  of  the  Council4  for 
monitoring  the  movement  of  excise  goods,  which  is  used  to  monitor  movements  of 
excise goods under duty suspension arrangements, to the monitoring 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. 
That  extension  of  the  use  of  the  computerised  system  will  start  to  apply  as  of  13 
February 2023.  

In order to reflect that extension of the use of the computerised system, it is necessary 
to  extend the scope of  Article 15(1), point  (d),  Article 19(4), first  subparagraph,  and 
Article  20(1)  of  Regulation  (EU)  No 389/2012  to  all  excise  goods  concerned, 
irrespective of whether a duty suspension arrangement has occurred. 

Article 19(2), point  (c),  of Regulation  (EU) No  389/2012 requires  Member States to 
maintain  in  the  electronic  registers  the  excise  product  category  (CAT)  and/or  the 
excise product code (EPC) of the products covered by the authorisation referred to in 

OJ C […], […], p. […] 
OJ C […], […], p. […]. 
Council  Directive  (EU)  2020/262  of  19  December  2019  laying  down  the  general  arrangements  for 
excise duty (OJ L 58, 27.2.2020, p. 4). 
Decision  (EU)  2020/263  of  the  European  Parliament  and  of  the  Council  of  15  January  2020  on 
computerising the movement and surveillance of excise goods (OJ L 58, 27.2.2020, p. 43). 

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code list 11 of Annex II to Commission Regulation (EC) No 684/20095. However, as 
from 13 February 2023,  Commission Regulation (EC) No 684/2009  will be replaced 
by  Commission  Delegated  Regulation  (EU)…/…[OJ  Please  insert  the  publication 
number  of  the  Regulation  mentioned  in  the  footnote]6.  For  reasons  of  clarity,  it  is 
appropriate to reflect that replacement in Article 19(2), point (c), of Regulation (EU) 
No 389/2012. 

Since  the  objective  of  this  Regulation  is  to  provide  for  the  exchange  of  the 
information, which each Member State maintains in the electronic register concerning 
the economic operators moving 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  there  for  commercial  purposes,  it  cannot  be  sufficiently  achieved  by  the 
Member States but can rather, by reason of the scale of the action, namely ensuring the 
harmonised  functioning  of  the  computerised  system  across  Member  States,  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.  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 42(1)  of  Regulation  (EU)  2018/1725  of  the  European  Parliament  and  of  the 
Council7. 

In order to align the date of application of this Regulation with the date of application 
of Chapter V, Section 2, of Directive (EU) 2020/262, and to allow the Member States 
adequate  time  to  prepare  for  the  changes  resulting  from  this  Regulation,  it  should 
apply from 13 February 2023. 

(4) 

(5) 

(6) 

(7) 

(8) 

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

HAS ADOPTED THIS REGULATION: 

Article 1 

Amendments to Regulation (EU) No 389/2012 

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

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Commission  Regulation  (EC)  No  684/2009  of  24  July  2009  implementing  Council  Directive 
2008/118/EC as regards the computerised procedures for the movement of excise goods under suspension 
of excise duty (OJ L 197, 29.7.2009, p. 24). 

Commission Delegated Regulation (EU) …/... of  … supplementing  Council  Directive (EU) 2020/262 
by  establishing  the  structure  and  content  of  the  documents  exchanged  in  the  context  of  movement  of 
excise goods, and establishing thresholds for the losses due  to the nature of the goods (OJ L …) [OP 
please insert number and OJ reference]. 

Regulation  (EU)  2018/1725  of  the  European  Parliament  and  the  Council  of  23  October  2018  on  the 
protection  of  natural  persons  with  regard  to  the  processing  of  personal  data  by  the  Union  institutions, 
bodies,  offices  and  agencies  and  on  the  free  movement  of  such  data,  and  repealing  Regulation  (EC) 
No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 

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(1) 

in Article 15(1), point (d) is replaced by the following: 

‘(d)  where the total destruction or irretrievable loss of excise goods has occurred;’; 

(2) 

(a) 

Article 19 is amended as follows: 

in paragraph 2, point (c) is replaced by the following: 

‘(c) 
the  excise  product  category  (CAT)  and/or  the  excise  product  code 
(EPC) of the products covered by the authorisation referred to in code list 10 of 
Annex  II  to  Delegated  Regulation  (EU)  …/…[OP  please  insert  publication 
number]*; 

____________________________________________________________ 

*  Commission Delegated Regulation (EU) …/... of … supplementing Council Directive (EU) 
2020/262  by  establishing  the  structure  and  content  of  the  documents  exchanged  in  the 
context of movement of excise goods, and establishing thresholds for the losses due to the 
nature of the goods (OJ L …)[OP please insert number and OJ reference].’; 

(b) 

in paragraph 4, the first subparagraph is replaced by the following: 

‘The information contained in the respective national registers as referred to in 
paragraph  2  of  this  Article  concerning  economic  operators  engaged  in 
movements of excise goods  referred to in Chapter IV and Chapter V, Section 
2, of Council Directive (EU) 2020/262* shall be automatically exchanged via a 
central register.' 

__________________________________________________________________ 

* 

Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for 
excise duty (OJ L 58, 27.2.2020, p. 4).’; 

(3) 

in Article 20(1), the first sentence is replaced by the following: 

‘The Commission shall ensure that persons involved in the movement of excise goods 
referred  to  in  Chapter  IV  and  Chapter  V,  Section  2,  of  Directive  (EU)  2020/262,  can 
obtain  confirmation  by  electronic  means  of  the  validity  of  excise  numbers  held  in  the 
central register referred to in Article 19(4) of this Regulation.’. 

Article 2 

Entry into force 

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

It shall apply from 13 February 2023. 

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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