Legal provisions of COM(2018)322 - Implementing measures for the system of Own Resources of the EU

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dossier COM(2018)322 - Implementing measures for the system of Own Resources of the EU.
document COM(2018)322 EN
date May  3, 2018

Contents

Chapter I - Determining Own Resources

Article 1 - Applicable call rates

1. The uniform call rate applied to a share of Value Added Tax receipts collected from the standard rated taxable supplies divided by the national Value Added Tax standard rate referred to as Own Resource in Article 2(1)(b) of Decision 20xx/xxxx/EU/Euratom shall be 1 %;

2. The uniform call rate applied to the share of taxable profits attributed to each Member State pursuant to Union rules on the Common Consolidated Corporate Tax Base referred to as Own Resource in Article 2(1)(c) of Decision 20xx/xxxx/EU/Euratom shall be 3 %;

3. The uniform call rate applied to the amount representing the revenue generated by the allowances to be auctioned referred to in Article 10(2)(a) of Directive 2003/87/EC and the market value of transitional free allowances for the modernisation of the energy sector as determined in Article 10c(3) of that Directive referred to as Own Resource in Article 2(1)(d) of Decision 20xx/xxxx/EU/Euratom shall be 20 %;

4. The uniform call rate applied to the weight of plastic packaging waste that is not recycled referred to as Own Resource in Article 2(1)(e) of Decision 20xx/xxxx/EU/Euratom shall be EUR 0.80 per kilogram.

For the purposes of the first subparagraph, ‘plastic’ shall mean a polymer within the meaning of Article 3(5) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council, to which additives or other substances may have been added; ‘packaging waste’ and ‘recycling’ shall have the meaning defined in Article 3 of Directive 94/62/EC.

The weight of plastic packaging waste that is not recycled shall be the difference between the weight of the plastic packaging waste generated in a Member State in a given year and the weight of the plastic packaging waste that is recycled in that year that is established pursuant to Directive 94/62/EC.

Article 2 - Reference Gross National Income and significant changes thereto

1. Gross National Income referred to in Article 2(1)(f) of Decision 20xx/xxxx/EU, Euratom shall mean an annual Gross National Income at market price, as provided by the Commission in application of Regulation (EU) No 549/2013.

2. Where amendments to Regulation (EU) No 549/2013 result in significant changes in the Gross National Income, the Commission shall inform the European Parliament and the Council of the results of technical adjustments to the Multiannual Financial Framework, as established in Article 5 of Council Regulation (EU, Euratom) No 20xx/xxxx 14 on the dates of application of those changes for the purposes of Decision 20xx/xxxx/EU, Euratom.

3. Where amendments to Regulation (EU) No 549/2013 result in significant changes in the level of Gross National Income, the ceilings for payments and commitments as determined in Article 3(1) and (2) of Decision 20xx/xxxx/EU, Euratom shall be recalculated by the Commission on the basis of the following formula:

GNIt-2 + GNIt-1 + GNIt ESA current

1,29 % (1,35 %) *    ________________________________


GNIt-2 + GNIt-1 + GNIt ESA modified

In that formula, ‘GNI’ is the Gross National Income, ‘t’ is the latest full year for which the data defined by Council Regulation (EC, Euratom) No 1287/2003 15 is available; and ‘ESA’ is the European system of national and regional accounts in the Union.

Article 3 - Calculation and budgeting of the balance

1. For the purposes of applying Article 5 of Decision 20xx/xxxx/EU, Euratom 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 13 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council 16 (‘the Financial Regulation’).

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 8(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 13(1) and (4) of the Financial Regulation as a result of changes 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 and relevant reporting requirements

Article 4 - Control and supervision measures

1. The Own Resources referred to in Article 2(1) of Decision 20xx/xxxx/EU, Euratom shall be inspected as specified in this Regulation, without prejudice to Council Directive on the Common Consolidated Corporate Tax Base, Commission Regulation (EU) No 1031/2010 17 , and Council Regulation (EC, Euratom) No 1287/2003 18 .

2. Member States shall take all measures that are necessary to ensure that the Own Resources referred to in Article 2(1) of Decision 20xx/xxxx/EU, Euratom are made available to the Commission. Member States shall provide the Commission with certain documents upon request.

3. Member States shall conduct the checks and enquiries concerning the calculation, establishment and the making available of the Own Resources referred to in Article 2(1) of Decision 20xx/xxxx/EU, Euratom.

4. Member States shall carry out additional inspection measures at the Commission’s request. In its request the Commission shall state the reasons for the additional inspection.

5. Member States shall, if the Commission so requests, associate it with the inspections that they carry out. Where the Commission is associated with an inspection, the Commission shall have access, in so far as the application of this Regulation so requires, to the supporting documents concerning calculating, establishing and making available Own Resources, and to any other appropriate document related to those supporting documents.

6. The Commission may itself carry out inspections on the spot. The agents authorised by the Commission for such inspections shall have access to documents as set out for the inspections referred to in paragraph 5. Member States shall facilitate those inspections.

7. Where control and supervision measures concern the Own Resource based on Value Added Tax referred to in Article 2(1)(b) of Decision 20xx/xxxx/EU, Euratom, the Commission’s inspections shall be carried out together with the competent authorities in the Member States. During these inspections, the Commission shall ensure, in particular, that the operations to centralise the assessment base and the total net Value Added Tax collected have been performed correctly. It shall also ascertain that the data used where appropriate, and that the calculations made to determine the amount of standard rated Own Resource based on Value Added Tax resulting from the transactions referred to in Article 3(1) of Council Regulation (EEC, Euratom) No 1553/89, comply with that Regulation.

8. Where the inspections concern the Own Resource based on Plastic packaging waste which is not recycled referred to in Article 2(1)(e) of Decision 20xx/xxxx/EU, Euratom, the Commission shall also have access to the documents relating to the procedures and to the data referred to in Directive 94/62/EC.

9. Where control and supervision measures concern the Own Resource based on Gross National Income referred to in Article 2(1)(f) of Decision 20xx/xxxx/EU, Euratom:

(a)the Commission shall each year inspect, together with the Member State concerned, the aggregates provided for errors in compilation, especially in cases notified by the Gross National Income 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;

(b)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.

10. The checks and enquiries referred to in this Article 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 on the Functioning of the European Union;

(c)the inspection arrangements made pursuant to Article 322(1)(b) of the Treaty on the Functioning of the European Union.

11. For the purposes of the control and supervision measures referred to in this Article, the Commission may request the Member States to forward to it relevant documents or reports or to make them available to the Commission.

Article 5 - 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 4 certain of its officials or other servants (‘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 in the inspections.

With the explicit and prior agreement of the Member State 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 of this Article.

2. During the inspections of Own Resources referred to in Article 4 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 of this Article.

The Commission shall respect the principle of statistical confidentiality as established in Regulation (EC) No 223/2009 of the European Parliament and of the Council 19 .

An authorised agent may, if necessary, contact debtors, but only in the context of the inspections of Traditional Own Resources, and only through the competent authorities whose Own Resources collection procedures are the subject of the inspection.

3. Information communicated or obtained under this Regulation, 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.

The information referred to in the first subparagraph shall not be communicated to persons, within the institutions of the Union or the Member States, other than those whose duty is to know that information, nor shall it be used for purposes other than those laid down in this Regulation without the prior consent of the Member State in which it was gathered.

The first and second subparagraphs 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 Regulation (EU) 2016/679 of the European Parliament and of the Council 20 and Regulation (EC) No 45/2001 of the European Parliament and of the Council 21 and other Union and national rules concerning the protection of personal data.

Article 6 - 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 in which the inspection is to take place. Agents of the Member State concerned may participate in such inspection.

2. Inspections of Own Resources 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.

3. For the inspections of Own Resources to which the Commission is associated, 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 concerned.

4. On-the-spot inspections of Own Resources 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 concerned. For this type of inspection, the terms of reference shall be established by a document indicating the aim and purpose of the inspection.

5. The Member States shall ensure that the departments or agencies responsible for calculating, 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 of Own Resources Member States 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 controls and inspections referred to in Article 4, except the inspections carried out by the Member States, shall be brought to the attention of the Member State concerned through the appropriate channels within a period of three months. The Member State 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 concerned to submit observations on specific points within a period of one month following receipt of the report. The Member State 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 referred to in the first subparagraph, together with the summary report prepared in connection with controls on the Own Resources referred to in Article 2(1)(b), (c), (d) and (e) of Decision 20xx/xxxx/EU, Euratom, shall be brought to the attention of all Member States.

Where the on-the-spot or associated inspections of Traditional Own Resources 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.

Article 7 - Reporting fraud and irregularities affecting entitlements to Traditional Own Resources

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 Traditional Own Resources referred to Article 2(1)(a) of Decision 20xx/xxxx/EU, Euratom.

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. The Commission shall adopt implementing acts establishing details of the descriptions referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 9(2).

3. A summary of the notifications referred to in paragraph 1 of this Article shall be included in the Commission report referred to in Article 325(5) Treaty on the Functioning of the European Union.

Article 8 - Reporting by Member States of their inspections of Traditional Own Resources

1. Member States shall submit detailed annual reports to the Commission on their inspections relating to Traditional Own Resources and the results of these inspections, the overall data and any questions of principle concerning the most important problems arising out of the application of the relevant regulations implementing Decision 20xx/xxxx/EU, Euratom 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.

2. The Commission shall adopt implementing acts establishing a form for the Member States' annual reports mentioned in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 9(2).

3. The Commission shall report every three years to the European Parliament and to the Council on the functioning of the inspection arrangements for Traditional Own Resources.

Chapter III - Committee and final provisions

Article 9 - Committee procedure

1. The Commission shall be assisted by an Advisory Committee. 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 (EU, Euratom) No 608/2014 is repealed.

References to the repealed Regulation and to the provisions of Regulation (EC, Euratom) No 1026/1999 and of Regulation (EC, Euratom) No 1150/2000 shall be construed as references to this Regulation.

Article 11 - Entry into force

This Regulation shall enter into force on the day of entry into force of Decision 20xx/xxxx/EU, Euratom.

It shall apply from 1 January 2021.

The provisions of this Regulation shall apply to the Own Resource based on the Common Consolidated Corporate Tax Base as from 1 January of the second year following the date of application of national provisions transposing the Council Directive on a Common Consolidated Corporate Tax Base.

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