CELEX: 52011PC0740
Language: en
Date: 2011-11-09
Title: Amended proposal for a COUNCIL REGULATION laying down implementing measures for the system of own resources of the European Union

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		52011PC0740
		
			Amended proposal for a COUNCIL REGULATION laying down implementing measures for the system of own resources of the European Union /* COM/2011/0740 final - 2011/0184 (APP) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
On 29 June
2011 the Commission adopted a proposal for a Regulation laying down implementing measures for the system of own resources of the
European Union pursuant to Article 311(4) of the Treaty on the Functioning
of the European Union (hereinafter "TFEU")[1].
It also announced that relevant amendments would be presented by the end of
2011.
The purpose of this amended
proposal is to refine the proposal made on 29 June. It
ensures coherence with the proposed Council Directive on a common system of
financial transaction tax (hereinafter "the FTT Directive")[2]
adopted on 28 September 2011, and the proposals for Council Regulations on
making the own resource based on the FTT available to the EU budget[3]
and on calculating and making available the own resource based on value added
tax (VAT)[4] adopted together with
this proposal. 
2.           CONTENT OF THE PROPOSAL
Three main changes are included in this amended
proposal[5] compared to the proposal
made on 29 June 2011. 
Firstly, making explicit reference to the
various types of financial transactions would be redundant given the provisions
laid down in the FTT Directive and the amended proposal for the ORD. It is
proposed to specify the share of the minimum rates defined in the FTT Directive
that should be used for the FTT-based own resource. Consequently, this share of
the receipts resulting from the application of the minimum rates defined in the
FTT Directive will accrue to the EU budget and the rest will accrue to the
Member States budgets.
Furthermore, the original proposal provided
for the possibility that the FTT would be collected by economic operators
rather than by the Member States. In line with the FTT Directive, the Member
States' administrations will be responsible for collecting the FTT. Therefore,
reference to economic operators is no longer necessary.
Last, regarding the new VAT own resource,
the text now refers explictly to the calculation method (set out in the
proposal on the making available of the new VAT resource) which determines the
basis on which to apply the share of the resource.
2011/0184 (APP)
Amended proposal for a
COUNCIL REGULATION
laying down implementing measures for the
system of own resources of the European Union
THE COUNCIL OF
THE EUROPEAN UNION,
Having regard to the
Treaty on the Functioning of the European Union, and in particular the fourth
paragraph of Article 311, in conjunction with the Treaty establishing the
European Atomic Energy Community, and in particular Article 106a thereof,
Having regard to
Council Decision … of … on the system of own resources of the European Union [6],
and in particular Article 9 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
consent of the European Parliament[7],
Having regard to the
opinion of the Court of Auditors[8],
Having regard to the
opinion of the European Economic and Social Committee[9],
Acting in accordance with a special
legislative procedure,
Whereas:
(1)              
Parliamentary oversight is particularly
important for provisions of a general nature applicable to all types of own
resources and covering control and supervision of revenues including supplementary reporting requirements.
(2)              
In order to maintain
unchanged the amount of financial resources put at the disposal of the Union, it
is appropriate to adapt the ceilings of the Union's own resources for payments
and commitments as determined, respectively, in Article 3(1) and (2) of Decision … expressed in per cent of
Gross National Income (GNI) in case of amendments to Regulation (EU) No … of
[…] on the European system of national and regional accounts in the European
Union[10] which entail
a significant change in the level of GNI.
(3)              
The transparency of the Union's
own resources system should be ensured with adequate information supplied to
the budgetary authority. Therefore, the Member States should keep at the
disposal of the Commission and, where necessary, forward to it the documents
and information needed to allow it to exercise the power conferred upon it as
regards the Union's own resources.
(4)              
The arrangements whereby the
Member States or economic operators responsible for collecting own resources report
to the Commission, should make it possible for the Commission to monitor their
action to recover own resources, in particular in cases of fraud and
irregularities.
(5)              
In order to ensure a balanced budget, any surplus of the Union's revenue over total
actual expenditure during a financial year should be carried over to the
following financial year. Therefore,
the balance to be carried over should be defined.
(6)              
Member States and economic operators responsible for
collecting own resources
should conduct checks and enquiries relating to establishing, and making available
and paying the Union's own resources. In order to
facilitate application of the financial rules relating to own resources it is
necessary to ensure collaboration between Member States or economic operators responsible for collecting
own resources and the
Commission.
(7)              
For the sake of consistency
and clarity, provisions should be laid down covering the powers and obligations
of agents authorised by the Commission to carry out inspections in relation to
the Union's own resources, taking into account the specific nature of each own
resource. The conditions under which authorised agents carry out their tasks
should be set out, and in particular the rules which all Union officials, other
servants and seconded national experts must observe with regard to professional
confidentiality and the protection of personal data should be laid down. It is
necessary to establish the status of seconded national experts and the
possibility for the Member State concerned to object to the presence, at an
inspection, of officials of other Member States. 
(8)              
For reasons of coherence,
certain provisions of Council
Decision (EC, Euratom) No 2007/436 of 7 June 2007 on the system
of the European Communities’ own resources[11] and Council Regulation (EC, Euratom) No 1150/2000
implementing Decision 94/728/EC, Euratom on the system of the Communities' own
resources[12] should be included in this Regulation. Those provisions concern the
reference GNI and significant changes thereto, the rate of call of the own
resource referred to in Article 2(1)(d) of Decision […/…], the calculation and budgeting of the balance, control and
supervision of own resources and supplementary reporting requirements, as well
as the Advisory Committee on Own Resources(ACOR). 
(9)              
In order to ensure uniform
conditions for the implementation 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 Member States of the Commission’s exercise
of implementing powers[13].
(10)          
The advisory procedure should be used for the
adoption of implementing acts in order to establish detailed
rules on reporting fraud and irregularities affecting
entitlements to traditional own resources, and measures for examining estimates of own resources and Member States' annual reports on their inspections given
the technical nature of those acts required for reporting purposes.
(11)          
Council Regulation (EC,
Euratom) No 1026/1999 of 10 May 1999 determining the powers and obligations of
agents authorised by the Commission to carry out controls and inspections of
the Communities' own resources[14] should be
repealed.
(12)          
For reasons of consistency,
this Regulation should apply on the same day as Decision … ,
HAS ADOPTED THIS
REGULATION:
Chapter
I
Determining own resources
Article 1 
Applicable shares
and rates
1. The share in the financial transaction tax rates applicable[15] referred to as the own resource referred to in Article 2(1)(b) of Decision … shall be two-thirds of the minimum rates set out in Council
Directive (EU) No […/…][16].:
(a)                   
…% for transactions
on bonds, stocks and similar securities;
(b)                   
…% for other
transactions.
2. The share in VAT
referred to as tax rate applicable to the own resource referred
to in Article 2(1)(c) of Decision shall be 1.0% of the net value of
supplies of goods and services, intra-Community acquisitions of goods and
importation of goods subject to a standard rate of VAT in every Member State
determined according to Union rules.
3. The uniform rate
referred to in Article 2(1)(d) of Decision …shall be set within the
budgetary procedure and shall be calculated as a percentage of the sum of the
forecast of the Gross National Income (GNI) of the Member States in such a
manner that it fully covers that part of the budget not financed from the
revenue referred to in Article 2(1)(a), (b) and (c) of Decision …, from financial contributions
to supplementary research and technological development programmes and other
revenue. 
That rate shall be
expressed in the budget by a figure containing as many decimal places as is
necessary to fully divide the GNI-based resource among the Member States.
Article 2 
Reference GNI and
significant changes thereto
1. GNI referred to in
Article 2(1)(d) of Decision
… shall mean an annual GNI at market price, as
provided by the Commission in application of Regulation … .
2. Where amendments to
Regulation … result in significant changes in the GNI, the Commission shall
inform the European Parliament and Council on the dates of applicaton of those
changes for the purposes of Decision ….
3. Where amendments to
Regulation … result in significant changes in the level of GNI, the ceilings
for payments and commitments as determined in Article 3(1) and (2) of Decision … shall be recalculated by the Commission on the basis of the
following formula:
 1.23%(1.29%)* || GNIt-2 + GNIt-1 + GNIt ESA current 
 GNIt-2 + GNIt-1 + GNIt ESA modified 
In that formula,
"t" is the latest full year for which the data defined by Council
Regulation (EC, Euratom) No 1287/2003[17]
is available.
Article 3 
Calculation and
budgeting of balance
1. For the purpose of
applying Article 7 of Decision … the balance of a given financial year shall
consist of the difference between all the revenue
collected in respect of that financial year and the amount of payments made
against appropriations for that financial year increased by the amount of the
appropriations for the same financial year carried over pursuant to
Article 9 of Regulation … (hereinafter "the Financial
Regulation")[18].
That difference shall be increased or
decreased by the net amount of appropriations carried over from previous
financial years which have been cancelled. By way of derogation from
Article 5(1) of the Financial Regulation, the difference shall also be
increased or decreased by the following:
(a) payments made in excess of
non-differentiated appropriations carried over from the previous financial year
under Article 9(1) and (4) of the Financial Regulation as a result of
change in euro rates;
(b) the balance resulting from exchange
gains and losses during the financial year.
2. The Commission
shall, before the end of October in each financial year, make an estimate of
the own resources collected for the entire year, on the basis of the data at
its disposal at that time. Any appreciable differences in relation to original
estimates may give rise to a letter of amendment to the draft budget for the
following financial year or an amending budget for the current financial year.
Chapter
II
Provisions concerning control and
supervision,
including
supplementary reporting requirements
Article 4 
Reporting fraud and
irregularities affecting entitlements
1. In the two months
following the end of each quarter, Member States shall send the Commission a
description of cases of fraud and irregularities detected involving
entitlements of over EUR 10 000 concerning the own resource referred
to Article 2(1)(a) of Decision ….
Within the period referred
to in the first subparagraph, each Member State shall give details of the
position concerning cases of fraud and irregularities already reported to the
Commission whose recovery, cancellation or non-recovery was not indicated
earlier.
2. For the own resource
referred to in Article 2(1)(c) of Decision … every six month Member States
shall send to the Commission a description of cases of fraud and irregularities
detected involving entitlements of over EUR 10 000 during the
preceding six months.
3. ForThe economic operators responsible for collecting the own resource referred to in Article 2(1)(b)
of Decision … Member States shall notify the Commission, within one month
of the circumstances coming to their attention of any instances of fraud or
irregularity involving entitlements of over EUR 10 000.
4. The Commission shall
adopt implementing acts establishing details of the descriptions mentioned in
paragraphs 1, 2 and 3 of this Article as well as measures for examining
estimates of own resources. Those implementing acts shall be adopted in
accordance with the advisory procedure referred to in Article 9(2).
5. A summary of the
notifications referred to in paragraphs 1, 2 and 3 of this Article shall be
included in the Commission report referred to in Article 325(5) of the
Treaty. 
Article 5 
Control and
supervision measures
1. Member States or economic operators responsible for collecting
own resources shall take all
measures that are necessary to ensure that the amount corresponding to the
entitlements established under Article 2(1) of Decision … are made
available or paid to the Commission.
2. Member States shall
conduct the checks and enquiries concerning the establishment and the making
available of the own resources, referred to in Article 2(1)(a), (b) and (c) of Decision ….
Economic operators
responsible for collecting own resources shall conduct checks and enquiries
concerning the collection of the own resources referred to in
Article 2(1)(b) of Decision …, together with the processes for paying them
to the Commission.
3. Member States or economic operators responsible for collecting
own resources shall carry out additional inspection measures at the Commission's
request. In its request the Commission shall state the reasons for the
additional inspection. Member States or economic operators,
shall, if the Commission so requests, associate it with the inspections,
which they carry out. The Commission may,
instead, request that certain documents be forwarded to it. 
4. Economic operators
responsible for collecting own resources shall make available to the Commission
any internal or external audit report or consultancy report available to them,
which includes analysis of the systems that they use to collect own resources,
or to pay those resources to the Commission.
5.4. The Commission may itself carry out inspections on the spot. The agents
authorised by the Commission for such inspections shall have access, in so far
as the application of this Regulation so requires, to the supporting documents
concerning establishing, and making available or paying own
resources, and to any other appropriate document related to those supporting
documents. Member States shall facilitate those inspections.
The Commission may
request the Member States to forward to it certain documents or reports including
internal audit or consultancy reports which contain analysis of the systems
used to collect own resources or to make them available to the Commission. 
6. Member States or economic
operators responsible for collecting own resources shall facilitate the inspection measures referred to in
paragraph 5. 
75. Where the Commission is associated with an inspection,
the Commission shall have the same access to supporting and related documents
as is set out for the inspections in the first subparagraph of paragraph
54. 
86. Where the inspection concern GNI-based own resources the
Commission shall also have access to the documents relating to the statistical
procedures and basic statistics referred to in Article 3 of Regulation
(EC, Euratom) No 1287/2003.
97. The inspections referred to in paragraph 2 shall be
without prejudice to the following:
(a) the inspections
carried out by Member States in accordance with their national laws,
regulations or administrative provisions;
(b) the measures provided for in
Articles 287 and 319 of the Treaty;
(c) the inspection
arrangements made pursuant to Article 322(1)(b) of the Treaty.
108. Together with the Member State concerned, the Commission
shall each year inspect the aggregates provided for errors in compilation,
especially in cases notified by the GNI committee established by Regulation
(EC, Euratom) No 1287/2003. In doing so it may, in individual cases, also
examine calculations and statistical bases, except the information about
individual companies or persons, where no proper assessment would otherwise be
possible. The Commission shall respect national rules on the confidentiality of
statistics.
Article 6 
Reporting by Member
States of their inspections
Member States shall
submit detailed annual reports to the Commission on their inspections relating
to the correct collection of own resources and the results of those
inspections, the overall data and any questions of principle concerning the
most important problems arising out of the application of the regulations
implementing Decision […/…] and, in
particular, matters in dispute. The
reports shall be sent to the Commission by 1 March of the year following
the financial year concerned. On the basis of those reports, the Commission
shall prepare a summary report, which shall be brought to the attention of all
Member States.
The Commission shall
adopt implementing acts establishing a form for the Member States' annual
reports mentioned in the first paragraph 1 of this Article. Those implementing acts shall be adopted in accordance
with the advisory procedure referred to in Article 9(2).
The Commission shall
report every three years to the European Parliament and to the Council on the
functioning of the inspection arrangements referred to in Article 5.
Article 7 
Powers and
obligations of the authorised agents of the Commission
1. The Commission shall
specifically appoint for the purpose of making the inspections referred to in
Article 5 certain of its officials or other servants (hereinafter
"authorised agents").
For each inspection,
the Commission shall provide the authorised agents with written terms of
reference stating their identity and official capacity. 
Persons placed at the
disposal of the Commission by the Member States as national experts on
secondment may participate at the inspections.
With the explicit and
prior agreement of the Member State or economic operator responsible for collecting own resources concerned, the Commission may seek the
assistance of officials from other Member States as observers. The Commission
shall ensure that those officials comply with paragraph 3.
2. During the
on-the-spot and associated inspections the authorised agents shall act in a
manner compatible with the rules applicable to the officials of the Member State
concerned. They shall be bound by professional secrecy, under the conditions
laid down in paragraph 3. 
The authorised agent may, if necessary,
contact debtors, but only in the context of the inspections referred to in
Article 5, and only through the competent authorities whose own resources
collection procedures are the subject of the inspection.
3. Information
communicated or obtained under paragraphs 1 and 2, in whatever form, shall be
subject to professional secrecy and receive the protection granted to similar
information under the national law of the Member State in which it was gathered
and under the corresponding provisions applicable to the institutions of the
Union.
That information may not be communicated to
persons other than those within the organisations
inspected, the institutions of the Union or the Member States whose duty
it is to know, neither may it be used for purposes other than those laid down
in this Regulation without the prior consent of the Member State or economic operator responsible for collecting own resources
in which from whom it was
gathered. 
The first and second
subparagraph shall apply to the officials and other servants of the Union, and
national experts on secondment.
4. The Commission shall
ensure that authorised agents and other persons acting under its authority
comply with Directive 95/46/EC of the European Parliament and of the Council[19]
and Regulation (EC) No 45/2001 of the European Parliament and of the Council[20]
and other Union and national rules concerning the protection of personal data
Article 8 
Preparation and management of inspections
1. In a duly
substantiated communication, the Commission shall give notice of an inspection
in good time to the Member State or
economic operator responsible for collecting own resources whose
procedures are being examined. Where the inspection concerns an economic
operator responsible for collecting own resources, the Member State in which the inspection is to take place shall also be notified. Agents of the Member State concerned may
participate in such inspection.
2. For inspections
where the Commission is associated under Article 5(3) the organisation of the
work and relations with the departments involved in the inspection shall be
ensured by the department designated by the Member State or by the economic operator responsible for
collecting the own resources concerned.
3. On-the-spot
inspections referred to in the first subparagraph of Article 5(54) shall be
carried out by the authorised agents. For the purposes of the organisation of
the work and relations with the departments, and where appropriate the debtors
involved in the inspection, those agents shall, prior to any on-the-spot
inspections, establish the necessary contacts with the officials designated by
the Member State or with the
economic operator responsible for collecting the own resources concerned. For this type of inspection the terms
of reference shall be accompanied by a document indicating the aim and purpose
of the inspection.
4. Inspections
concerning the GNI-based own resource referred to in Article 5(86)
shall be carried out by the authorised agents. For the purposes of the
organisation of the work, those agents shall establish the necessary contacts
with the competent administrations in the Member States.
5. The Member States or economic operators concerned shall ensure that the departments or agencies
responsible for establishing, collecting and making available the own
resources, and the authorities which they have instructed to carry out the
inspections thereon, provide the authorised agents with the assistance
necessary for carrying out their duties.
For the purposes of
on-the-spot inspections referred to in the first subparagraph of Article
5(54), Member States
or the economic operators concerned shall inform the Commission in good time of the identity
and capacity of the persons appointed to take part in these inspections and to
afford the authorised agents every assistance necessary for carrying out their
duties.
6. The results of the
on-the-spot inspections carried out and those with which the Commission is
associated shall be brought to the attention of the Member State or of the economic operator concerned through the appropriate channels
within a period of three months. The Member
State recipient of the
report shall submit its
observations within the three months following receipt of the report. However,
for duly substantiated reasons, the Commission may request the Member State recipient
concerned to submit observations on specific points within a period of one
month following receipt of the report. The Member State or the economic operator concerned may decline to respond by means of a
communication stating the reasons which prevent it from responding to the
Commission's request.
Thereafter the results
and observations arising from the on-the-spot and associated inspections of
Member States shall be brought to the attention of all Member States. 
Where the on-the-spot or associated
inspections identify the need for amendment or correction of data in the
statements or declarations sent to the Commission regarding own resources and
the resultant corrections are to be made via a current statement or declaration
then the relevant changes shall be identified, in the statement or declaration
so used, by means of appropriate notes.
Chapter III
Committee and final provisions
Article 9 
Committee procedure– Advisory Committee on Own Resources (ACOR)
1. The
Commission shall be assisted by a committee, the
Advisory Committee on Own Resources (ACOR). That committee shall
be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where
reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011
shall apply.
Article 10
Final provisions
Regulation (EC,
Euratom) No 1026/1999 is repealed. 
References to the
repealed Regulation and to the provisions of Decision
(EC, Euratom) No 2007/436, repealed by Decision …, and of Regulation (EC,
Euratom) No 1150/2000 repealed by Council Regulation …[21],
which are referred to in the correlation table set out in the Annex to this
Regulation shall be construed as references to this
Regulation and shall be read in accordance with that correlation table.
Article 11 
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
1 January 2014.
This Regulation shall be binding in its
entirety and directly applicable in all Member States.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
ANNEX
Correlation
table
 Decision (EC, Euratom) No 2007/436 || Regulation (EC, Euratom) No 1026/1999 || Regulation (EC, Euratom) No 1150/2000 || This Regulation 
   ||   ||   || Article 1(1) 
   ||   ||   || Article 1(2) 
   ||   || Article 5 || Article 1(3) 
 Article 2(7) first subparagraph ||   ||   || Article 2(1) 
 Article 2(7) second subparagraph ||   ||   || Article 2(2) 
 Article 3(3) ||   ||   || Article 2(3) 
   ||   || Article 15 || Article 3(1) 
   ||   || Article 16 || Article 3(2) 
   ||   || Article 6(5) || Article 4 
   ||   || Article 17(1) || Article 5(1) 
   ||   || Article 18(1) || Article 5(2) 
   ||   || Article 18(2) first subparagraph and third subparagraph, point a) || Article 5(3) 
   ||   || Article 18(3) || Article 5(54) first subparagraph 
   ||   ||   || Article 5(4) second subparagraph 
   ||   || Article 18(2) second subparagraph, first sentence || Article 5(64) first subparagraph 
   ||   || Article 18(2) second subparagraph, second sentence and (3) || Article 5(75) 
   ||   ||   || Article 5(86) 
   ||   || Article 18(4) || Article 5(97) 
   ||   || Article 19 || Article 5(108) 
   ||   || Article 17(5) and 18(5) || Article 6 
   || Article 1 ||   || Article 7(1) 
   || Article 3(1) ||   || Article 7(2) 
   || Article 5 ||   || Article 7(3)& and (4) 
   || Article 2(1)& and (2) ||   || Article 8(1) 
   || Article 3(2) ||   || Article 8(2),(3)& and (4) 
   || Article 4 ||   || Article 8(5) 
   || Article 6 || Article 18(2) || Article 8(6) 
   ||   || Articles 20 and 21 || Article 9 
   ||   ||   || Article 10 
   ||   ||   || Article 11 
[1]               COM(2011)511 of 29 June 2011.
[2]               Proposal for a Council Directive on a common system
of financial transaction tax and amending Directive 2008/7/EC, COM(2011)594 of
28.9.2011.
[3]               Proposal for a Council Regulation on the methods and
procedure for making available the own resource based on the financial
transaction tax, COM(2011)738 of 9.11.2011. 
[4]               Proposal for a Council Regulation on the methods and
procedure for making available the own resource based on the value added tax, COM(2011)737
of 9.11.2011.
[5]               Additions to the original proposal are
highlighted in bold and are underlined. Provisions to be eliminated are
identified using strikethrough.
[6]               OJ L […], […], p. […].
[7]               OJ C […], […], p. […].
[8]               OJ C […], […], p. […].
[9]               OJ C […], […], p. […].
[10]             OJ L […], […], p. […], as last amended by […]
[11]             OJ L 163, 23.6.2007, p. 17.
[12]             OJ L 130, 31.5.2000, p. 1.
[13]             OJ L 55, 28.2.2011, p. 13.
[14]             OJ L 126, 20.5.1999, p. 1.
[15]             Should the legislative act referred
to in article 2(1)(b) of Decision … provide for differentiated rates for
transactions executed in regulated markets and outside regulated markets, the
tax rates applicable to the own resources will be adjusted on this basis.
[16]             OJ L […], […], p. 1.
[17]             OJ L 181, 19.7.2003, p. 1.
[18]             OJ L […], […], p. […]
[19]             OJ L 281, 23.11.1995, p. 31.
[20]             OJ L 8, 12.1.2001, p. 1.
[21]             OJ L […], […], p. […].