Explanatory Memorandum to COM(2011)730 - Proposal for a COUNCIL REGULATION Administrative Cooperation in the field of excise duties - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)730 - Proposal for a COUNCIL REGULATION Administrative Cooperation in the field of excise duties. |
|---|---|
| source | COM(2011)730  |
| date | 14-11-2011 |
The provisions of Regulation (EC) No. 2073/2004 lay down a legal framework for administrative cooperation in the field of excise duties. These provisions need to be revised to take into account the introduction of the computerised Excise Movement and Control System (hereafter referred to as EMCS). EMCS has been put into place based on Decision No. 1152/2003/EC of the European Parliament and of the Council of 16 June 2003 on computerising the movement and surveillance of excisable products. EMCS supports a faster, more integrated approach for Member State Authorities to control the movement of excise goods, based on automated risk analysis (cf. third recital of Decision 1152/2003/EC).
The existing Council Regulation provided a legal basis for an earlier Phase of the EMCS project, to support computer assisted manual procedures (Phase 0 of EMCS), pending the automation of support for administrative cooperation that is contained in Phase 2 and Phase 3 of EMCS. Articles concerning the use of the economic operator registration system SEED (System of Exchange of Excise Data), EWSE (Early Warning System for Excise) and MVS (Movement Verification System) provided a legal base for the use of these tools, alongside more general articles on Requests for Information, Automatic Exchange and Spontaneous Exchange. These were derived from earlier legislation in the area of Administrative Cooperation, Council Directive 77/799/EEC, and certain provisions of Council Directive 92/12/EEC.
EWSE and MVS are now being phased out; EMCS Phase 2 is operational and EMCS Phase 3 is due for start of operation in 2012. EMCS Phase 3 will be able to generate electronic messages to replace EWSE and in the first instance to partially replace MVS, with complete replacement subsequently.
The existing description of SEED in Regulation (EC) No. 2073/2004 is out of date, being based on the Phase 0 version of the system and so requires updating. In addition, a clear legal basis for the service provided on the Europa portal for checking the validity of economic operator authorisations (SEED-on-Europa) is required.
Phase 3 will include the automatic exchange of messages between economic operators and Member State Administrations for the reporting of exceptional situations, such as the results of road controls, reports of exceptions made by economic operators and definitive interruptions of movements. These exchanges are currently handled manually on a best effort basis. The automation of these message flows will play a role in improving control and administrative cooperation.
A statistics and reporting service is to be provided as part of the EMCS project (CS/MISE – Central Services / Management Information System Excise). This is intended to improve the quality and frequency of reporting on the operation of EMCS. This service will partially remove the need for manual collection of operational statistics by Member States and the Commission. A legal base will be required to allow the collection of data from individual movement records.
Decision 1152/2003/EC has required the Commission and Member States to fund the development, testing and putting into place of EMCS. The new Regulation also proposes a similar continuing obligation on Member States and the Commission for the maintenance of EMCS and associated services now that EMCS is operational.
Apart from these specific changes, other changes to the content of Regulation (EC) No. 2073/2004 are considered necessary:
- To update the language in the Regulation, to take account of new legislative standards;
- To generally revise the text, taking out provisions which are no longer relevant and to make the structure of the text more logical;
- To take account of new administrative cooperation procedures in the field of excise and elsewhere, in order to provide a regulatory framework, which is more efficient and less burdensome for both excise authorities and economic operators.
In order to provide a legal basis for the administrative cooperation functions of EMCS, to generally tidy up and create an easier to read and more consistent document, and given the scope of the changes it is proposed to totally replace the text of the existing Regulation.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- Use of expertise
- Assessment of impact on services of the Commission and of the Member States
- Assessment of impact on fundamental rights
- Summary of the proposed action
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instruments
- 5. ADDITIONAL INFORMATION
- Simplification
- Detailed explanation of the proposal
- Article 8 - General duties of the requested authority
- Article 13 - Simultaneous controls
- Article 14 - Requests for notification of administrative decisions and measures
- Article 19 - Storage and exchange of information contained in electronic databases
- Article 24 - Quality of Service
- Article 25 - General limits to the duties of the requested authorities
- Article 26 - Expenses
- Article 27 - Minimum Amount
- Article 28 - Official Secrecy, Data Protection and Use of the information communicated under this Regulation
- Article 29 Access to information under Commission authorisation
- Article 30 - Evidential Value of Information Obtained
- Article 31 - Obligation to Cooperate
- Article 34 - Evaluation of Arrangements, Collection of Operational Statistics and Reporting
- Article 35 - Committee on Excise Duty
- Article 37 - Reporting to European Parliament and Council
The proposal was developed in close cooperation with a specialists working group under the auspices of the Committee on Excise Duty (established under Directive 2008/118/EC). The Commission's services undertook a number of bilateral and multilateral discussions with interested Member States to further discuss the proposal.
Among the new elements contained in this proposal, the core is constituted by the legal rules ensuring application of the EMCS system. The ensuing impact has to be attributed in essence not to the text proposed here but to Decision No 1152/2003/EC, through which creation of the EMCS was decided. As explained above, the new system, in particular, simplifies movements under suspension of excise duty and facilitates appropriate controls by Member States. This proposal imposes no new additional burden on excise economic operators in comparison with the existing situation, since it is largely confined to the modernisation of existing tools and practices. The addition of new statistical and reporting facilities should reduce the current administrative burden on Member State Administrations, whilst improving the quality of reporting.
The proposal assumes that Member States will make necessary and proportionate use of Article 13 of Directive 95/46/EC, which allows Members States to exempt administrative bodies from the requirement to act according to all of the rights of a data subject under Article 8 of the Charter of Fundamental Rights. The Regulation permits Member States to make use of the exemptions in Article 13 of Directive 95/46/EC for storage or exchange of information, where such a restriction is necessary to safeguard the important economic or financial interests of a Member State or of the European Union, including monetary, budget and taxation matters. The exact use of the exemption is covered by national legislation and administrative practice, subject to the national transposition of Directive 95/46EC and subject to the general legal principles of necessity and proportionality of measures taken and the foreseeable relevance of information collected, stored or exchanged. In this, there is no change in the rights and obligations of Member States from the rights and obligations defined in the existing Regulation on Administrative Cooperation in the field of excise.
The processing of data by the Commission is limited to the following areas:
1. Providing a secure communication channel (CCN/CSI) between Member State Administrations. This channel is used for the forwarding of structured messages involving the exchange of information on request, automatic exchange of information and spontaneous forwarding of information, which can aid in the correct application of excise legislation.
2. Providing a mechanism for the copying of excise economic operator registration data between Member States.
3. The extraction of data for statistical purposes.
Area No. 1 (The secure communication channel) may convey information obtained by Member States that have made use of the exemptions allowed in Article 13 of Directive 95/46/EC, where a Member State needs to exchange data with another Member State in order to establish a full and accurate picture of compliance with excise legislation. The Commission assumes that the use of Article 13 is restricted to those cases where notification of the data subject might reasonably lead to interference with the assessment of compliance with excise legislation by the Member States in question. The scope of the information processed under this draft regulation is supposed to be necessary to the assurance of the correct application of excise legislation (draft Article 1 as well as the explanations given on this provision, below). Member States are bound by their Treaty obligations and by national legislation derived from Directive 95/46/EC to respect the rights of data subjects under Article 8 and also by the general legal principles of necessity and proportionality. National arrangements are not specified by this Regulation as such specification is not needed. The Commission further assumes that in exercising the powers granted under this Regulation, Member States respect all their other treaty obligations.
The Commission only provides a communication mechanism for the exchange of data collected and stored by Member States and the Commission has no operational access to the data itself, apart from for system maintenance. The responsibility of the Commission under this proposal is to ensure the confidentiality and the correct transmission of data with which we are entrusted.
Area no 2 (Mirror copy of national economic operator registrations) does not require the use of Article 13 by Member States, since the information is provided by the data subjects themselves. Member States should notify data subjects of this data, and data subject should be able to correct inaccuracies in such data. To address this right the proposal contains a reminder of the necessity of allowing subject access to their own data in this area and the possibility of correcting errors. However, the Commission has no operational access and therefore no possibility of modifying this data itself, since this would require the Commission to exercise control over national registers of economic operators, since the major responsibility of TAXUD is to ensure the continuing confidentiality of the information processed. The public service which allows the checking of the validity of authorisations uses an extract of the excise economic operator registration data, which only includes an excise authorisation number and does not include information that would allow individuals to be identified, such as a name or address. The Commission provides a contact e-mail address associated with this service. Where an economic operator feels that the information provided is inaccurate, the Commission provides the economic operator with the details of the Member State Administration that is the Data Controller for this economic operator's data.
Area 3 only involves the extraction of anonymised operational data, which is used as the input for statistical reports. This extract contains no identification of the economic operators involved in an excise movement.
The Commission proposes to the Council to adopt a new regulation on administrative cooperation in the field of excise duty, which will replace the existing Council regulation in this area.
The aim is to align legislation in this field with the possibilities created by the development of EMCS and to provide a more clearly defined and comprehensive legal base for these possibilities, allowing for the replacement of existing manual and semi-automated procedures.
A secondary aim is to more clearly define the rights and obligations of Member States and the Commission in this field, both within the scope of EMCS and more generally.
Such an approach will allow and encourage enhanced cooperation between Member States and will bring the legislation in this area more into line with the recently adopted provisions for administrative cooperation in the field of VAT and of direct taxation.
Article 113 of the Treaty on the Functioning of the European Union.
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 for the following reason.
The object of the proposal is to replace Council Regulation (EC) No. 2073/2004 by provisions fulfilling the same function, namely to provide a common legal framework for administrative cooperation in the particular field of excise goods and making full of the facilities of the EMCS system.
This objective cannot be sufficiently achieved by individual actions of the Member States and can be better achieved at European Union level. In the absence of this proposal and the existing Regulation exchange of information between Member States could only be carried out through the negotiation of bilateral treaties. It would be unlikely that such bilateral arrangements could be supported electronically by the Member States concerned, since the cost would be unsupportable for a bilateral arrangement. Variation between bilateral arrangements might also impede the efficient functioning of the Single Market.
The proposal complies with the proportionality principle for the following reason(s).
The proposed action only sets out common rules of procedures and instruments to facilitate day-to-day administrative cooperation between Member States, which therefore remain entirely responsible for their internal organisation and allocation of resources, for which cases are covered by international administrative cooperation and for what use is made of the results.
The proposed action will not mean any major additional financial and administrative burden for the Union, national governments, regional and local authorities, economic operators and citizens, but should on the contrary rationalise human and financial costs by creating a common approach to international administrative cooperation.
Proposed instrument: regulation.
The choice of instrument is fully in line with the current legal act in force. A Regulation provides a common framework for activity which can be applied immediately on replacement of the existing regulation.
The proposal aims to provide the basis for a modernisation of the existing common framework for administrative cooperation between Member States. The regulation is solely concerned with administrative cooperation and does not affect the approximation of national laws concerning the management of excise movements or the taxation of excise goods, both of which are covered by other legal acts.
Any financial impact relating to the introduction of Phase 3 of EMCS results from Decision 1152/2003/EC. The budgetary impact of the development and operation of a new service for the collection of statistics and the commitment to continue to develop, maintain and operate the system in general is covered by expenditure under the Fiscalis 2013 Programme i and therefore will not be discussed any further here.
Repeal of existing legislation
The adoption of the proposal will repeal existing legislation, namely Regulation (EC) No. 2073/2004.
The proposal provides for simplification of legislation, simplification of administrative procedures for public authorities (EU or national) and simplification of administrative procedures for private parties.
The legislation leads to administrative simplification, as it comprises common measures which are easy to interpret and apply and which go further in this direction than the measures contained in Regulation (EC) No. 2073/2004.
Public authorities will be able to use common tools and instruments in a pre-defined organisational framework. This set of measures will simplify recourse to European international administrative cooperation. Extending the scope of EU legislation will mean that administrative authorities will not have to have recourse to different sets of legislation, each with their own rules and conditions, depending on the type of claim for which they are requesting assistance.
The following detailed article by article explanation focuses on provisions which are new or have been changed in substance in comparison with the corresponding provisions of Regulation (EC) No. 2073/2004. The correlation table attached to the proposed new regulation should be used to correlate the new with the existing provisions of Regulation (EC) No. 2073/2004.
Chapter I – General provisions
Article 1 – Subject matter and scope
This Article reflects the fact that the scope of the Regulation will be widened so that it covers administrative cooperation to ensure the enforcement of all excise legislation, not just the correct assessment of excise duties. It also sets out the principle that the Regulation will not affect the application in Member States of the rules on judicial mutual assistance in criminal matters.
The standard of “necessity” is intended to provide for exchange of information in excise matters to the extent required by genuine needs of tax administrations, while being compliant with the criteria of the Charter of Fundamental Rights of the EU, as far as personal data are concerned (Articles 8 and 52(1)). Concretely, a request for information may be considered 'necessary', for example, where it serves the verification of suspicions of investigators that economic operators may be involved or have been involved in activities that are irregular from an excise point of view. On the other hand, the term 'necessary' clarifies that Member States are not at liberty to engage in “fishing expeditions” or to request information that is unlikely to be relevant to the excise situation affairs of a given person or ascertainable group or category of persons.
Article 2 – Definitions
A number of new definitions have been inserted to reflect the putting into operation of EMCS Phase 2 and Phase 3, which are not contained in Regulation (EC) No. 2073/2004, and to align with Council Directive 2008/118/EC. These are the “event driven exchange”, 'economic operator', 'excise number', 'electronic administrative document', 'mutual administrative assistance document' and 'fall-back administrative assistance document'. Other definitions have been slightly altered.
Articles 3 to 6 – Competent Authorities, Central Excise Liaison Office (CELO), liaison departments
The proposal continues the existing arrangements in Regulation (EC) No. 2073/2004, where there is a distinction between the competent authority, which is legally responsible for exchanges of information and in the name of which such exchanges are carried out, and direct contacts between departments and officials under the delegated legal authority of a competent authority, These arrangements are supervised by a central excise liaison office, which also acts as a first point of contact. This is because, having regard to the scope of the Regulation and the differences between Member States in the matter of organisation and operation of government departments and the Member State in general, it is not possible to establish uniform rules in this connection; in some States, for example, the competent authorities will normally be the excise authorities or services, while in other States other bodies may carry out certain tasks in connection with administrative assistance in this area. Any Member State may freely decide to change its competent authority. If it does so, it is obliged to inform the Commission and other Member States.
Consequently these articles impose no restrictions on the way that Member States choose to organise internally beyond the requirement to have a first point of contact. The proposal therefore continues to provide a clear legal framework for decentralised cooperation, gives central excise liaison offices a pivotal role, but also clarifies the functions for which they have primary responsibility.
Article 7 – Information or documents obtained with the authorisation or at the request of the judicial authority
Where the information requested involves making enquiries on behalf of or for judicial authorities information exchange is sometimes refused or seriously delayed. This can prevent the administrative authority of the requesting Member State initiating effective and timely administrative or legal proceedings against criminals. Consequently Article 7 defines Member States' duty to cooperate where criminal proceedings are involved, with due regard for the rules on judicial cooperation in criminal matters.
Chapter II – Co-operation on request
The proposal defines the rights and obligations of Member States and distinguishes between requests for information and administrative enquiries, the presence of officials in administrative offices and their participation in administrative enquiries, the use of simultaneous controls and notification requests. Article 11 lays down a three-month time limit for communication of information from the date of receipt of a request (one month where information is already available) but also allows other time limits in individual cases.
Article 8 is largely unchanged from Article 5 of Regulation (EC) No. 2073/2004. Article 8 i is the legal basis for all information requests made using EMCS or otherwise. Paragraph 2 obliges the requested authority to carry out administrative enquiries if they are necessary to obtain the information requested. For this purpose paragraph 3 provides that information requests may include a reasoned request for an administrative enquiry. The requested Member State may decide, however, that no enquiry is necessary but if so must immediately inform the requesting Member State why it has decided not to carry out such an enquiry. To avoid arbitrary refusals, the list of legal reasons for such a refusal is listed in Article 25. As is the case today, the requested authority must proceed as though it were acting on its own account or at the request of another authority in its own Member State.
Article 9- 10 – Form of the request and the reply and provision of documents
Article 9 updates Article 6 of Regulation (EC) No. 2073/2004 to ensure that requests and replies under Articles 8 will normally be carried using EMCS. The details of the business processes, the exchanges of information and the fallback procedures will be contained in an Implementing Act for this Regulation, enacted according to Article 35 i, which will provide a legal basis for the business processes and message specifications in Section IV of the Functional Excise System Specification (FESS).
Nevertheless, it is not possible to predict in advance all forms of requests for information and requests for administrative enquiries. There is also a need to exchange supporting evidence and documentation. Therefore, it is important to recognise that the scope of Article 8 also includes the exchange of information not currently covered by EMCS. These requests need to continue to have a legal base and should be transmitted electronically as far as possible, to avoid unnecessary burden on Member State Administrations. An example is the use of the secure CCN e-mail system to exchange information between Central Excise Liaison Offices.
Article 10 privileges the use of certified copies and extracts to avoid the need to transfer original documents, the processing of which would increase administrative burdens.
Article 11 – Time limits
In Article 11, the Commission proposes a normal maximum time limit of three months for the provision of information, as is the case under Regulation (EC) No. 2073/2004. Where the requested Member State already has the information that is required, this normal deadline is reduced to 1 month. In special cases, such as particularly complex fraud cases involving several Member States, another time limit may be set by common consent. Where the requested authority is unable to respond to the request within the time limit laid down, it must inform the requesting authority immediately of the reasons for its failure to do so and indicate when it is likely to be able to respond.
Article 12 – Participation of officials from other member States in administrative enquiries
As in Regulation (EC) No. 2073/2004, this Chapter of the proposal also provides a legal base for excise officials to be present on the territory of another Member State in order to exchange information and to participate as observers in administrative enquiries. The Commission proposes a small change in wording to the existing Regulation to clarify that, subject to mutual agreement, officials from another Member State are entitled to be present anywhere that officials of the Member State are entitled to be.
The Commission continues to believe that simultaneous controls make a positive contribution to administrative cooperation and should form an integral part of Member States' standard control plans. In cases where cross border excise irregularities or infractions are suspected, simultaneous controls can be very effective compliance and control tools for Member State administrations.
Certain multilateral controls are being financed by the Fiscalis 2013 programme to encourage Member States to include simultaneous controls in their control plans. The Commission proposes only a small textual modification to the existing text in the Regulation (the replacement of ‘central liaison office’ by central excise liaison office’).
This Article allows addressees to be informed of decisions affecting them made by the requesting authority, excluding notifications of claims. The proposal confines itself to updating the reference to the Recovery Directive, as Directive 76/308/EEC has been replaced by Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and measures i.
Chapter III – Exchange of information without prior request
Articles 15 to 18 –Mandatory exchange, optional exchange and follow-up
The Commission proposes a number of changes to this chapter in order to create a logical and easy to understand framework for automatic exchange and spontaneous exchange, together with a flexible framework of legal rights for those Member States, which might want to go further than the automatic exchanges specified in Section 4 of the FESS. The proposal also introduces the concept of 'follow-up', similar to the concept of 'feedback' in VAT and direct tax. This is a voluntary reporting by a requesting or receiving Member State of the usefulness of the information received. This can make a positive contribution to the quality of exchanged information. This functionality is not currently part of EMCS.
The existing Regulation already contains Articles that cover automatic or mandatory exchange, and some Member States have made use of the legal possibilities to exchange monthly reports and to forward information. However, there is a lack of clarity in the current Regulation concerning the rights and obligations created by these Articles, compounded by the existence of a separate Article covering the Early Warning System for Excise (EWSE), which is in fact a particular form of spontaneous or optional exchange, coupled with a compulsory feedback mechanism in the case of warning messages.
EWSE information messages became obsolete with the arrival of EMCS Phase 2, their role being replaced by the forwarding of electronic administrative documents (e-AD) by the Member State of Dispatch. The remaining EWSE warning messages become obsolete with the arrival of Phase 3 of EMCS, which incorporates support for spontaneous exchange that will replace this function.
Article 15 of the proposal continues to oblige Member States to forward information to any other Member State where there may have been an infringement or irregularity, or where an infringement or irregularity may have an effect in another Member State, or where there is risk of fraud or of loss of excise duty. The Article additionally mandates the use of EMCS messages to carry this exchange of information, where these messages are available to carry the information in question. Article 15 also mandates the exchange of messages which report on exceptional situations which may occur during an excise movement, as provided for in Section 4 of the FESS. It is intended that the exchange of reports of these exceptional situations which can occur during a movement of excise goods under duty suspension should be compulsory. An implementing act will set out the different categories of information that can be exchanged automatically, on both a mandatory and an optional basis. Member States will have the choice of opting in or out of automatic exchange based on these categories. The list of categories will be reviewed on an annual basis. Article 16 of the proposal also makes it clear that there is no intention to restrict any existing arrangements that Member States may have made concerning bilateral or multilateral exchanges of information.
Some examples of possible use of automatic exchanges are given here:
(a) situations where fraud is suspected in another Member State; Example: where an EMCS report of receipt has not been returned, nor any explanation given and it is suspected that the excisable goods dispatched have been diverted in the Member State of destination;
(b) situations where there is a serious risk of fraud in another Member State; Example: excise duties are paid in a Member State where the rate is low and goods are moved under the arrangement for excise goods released for consumption, but the goods are never received by the consignee, whilst goods are diverted to the market of a Member State where the rate is high;
(c) situations where fraud is discovered in the territory of a Member State, which could have ramifications in another Member State; Example: the Member State that discovers the irregular physical presence of excisable products suspects that fraud might have committed in the Member State of departure involving under-reporting or misreporting of excise goods on an e-AD.
Article 16 allows Member States to launch a forwarding of information where the information falls outside of the categories on which basis the Member State automatically exchanges information, perhaps due to an unusual but economically important irregularity being discovered. Article 16 also proposes as an option the establishment of a follow-up procedure that can be used by the requesting authority to tell the requested authority if the information given has been useful. Experience in the fields of VAT and direct taxation has shown that such feedback is a good motivator for the wider use of spontaneous exchanges and can act to help the requesting authority complete its own information on a case.
To sum up, the proposal intends to define a framework, which is both flexible and effective for these kinds of exchanges of information between Member States.
Chapter IV – Storage and exchange of information on economic operators and statistics specific to transactions within the Union
The four Articles of this Chapter combine the coverage of Chapter IV and Chapter V of Regulation (EC) No. 2073/2004. With the replacement of EWSE and MVS by the tools provided by EMCS Phase 3, the articles relating to them have been removed. The new scope of this new chapter is more clearly defined to consist of those aspects of administrative cooperation where Commission Services provide operational support to administrative cooperation activities of the Member States, as well as a coordinating and facilitating role.
This Article describes the arrangements for the distributed electronic database known as SEEDv.1, which differ in some respects to its predecessor, which is described in Regulation (EC) No. 2073/2004. This Article also describes the obligation for the Member States and the Commission Central Services to ensure that the register details are up to date and accurate so that excise movements under duty suspension can proceed immediately, whilst movements to unauthorised destinations cannot take place. Finally, Article 19 provides a clear legal base for the SEED-on-Europa service, which allows excise economic operators to check the validity of the authorisations of their trading partners.
Article 20 – Access to and correction of information
Article 20 explains that economic operators have the right to check the publically available information on SEED-on-Europa concerning the details of their authorisation, by entering their excise authorisation number. They also have the right to have any errors in the public information corrected by the Member State that issues the authorisation. The Commission undertakes to forward such requests for correction to the appropriate competent authority. For access and corrections to the non-public information on economic operators, to which the Commission has no access, an economic operator must continue to refer to the relevant competent authority.
Article 21 – Data retention
This Article establishes that all information stored within EMCS should remain available for at least 3 years, depending on the retention policy of the competent authority, and additionally that this information should be available on-line to other Member States. This is to avoid excessive delays when Member States are running risk analyses of historical data.
Under Data Protection legislation, after expiry of the retention period such data should be deleted or should be modified in order to remove information which could be used to identify individuals.
Article 22 – Implementing provisions for stored information
Article 22 provides for implementing provisions for the storage and corrections of data.
Chapter V – Common conditions governing assistance
This Chapter groups together a number of mutual requirements and limitations on the provision of assistance.
Article 23 – Language Regime
This Article has been re-worded in the proposal to express its meaning more clearly. Less use of translations should be necessary due to better support for multi-lingual interfaces in EMCS.
A new obligation is proposed on both the Commission and the Member States to maintain the computerised system, so that corrections and upgrades will be developed and applied according to agreed planning milestones. The details of these arrangements will be contained in a service level agreement, specifying the mutual obligations of the Commission and the Member States. The Commission and the Member States will also maintain a security policy for the computerised system.
Under this Article the requested authority has the right to refuse to carry out enquiries or to provide information where the requesting authority has failed to exhaust its usual sources of information, where the legislative or administrative practices of the Member State requested to provide the information do not authorise its tax authorities either to carry out such enquiries or to gather or use this information for its own purposes, or where transmission of this information would be contrary to public policy or lead to the disclosure of a commercial, industrial or professional secret or of a commercial process. The Article has been updated to make clear that this exclusion does not include information simply because it is held by a financial institution.
Article 25 i of this proposal provides that the requested authority must inform the requesting authority and the Commission of the reasons for refusing a request for mutual assistance.
This Article has been reworded in comparison with its equivalent in Regulation (EC) No. 2073/2004. To allow the requested authority to ask for costs beyond the costs of outside experts contradicts the general obligation on the requested authority to treat administrative cooperation requests as if the requested enquiry were being conducted on their own behalf.
This Article gives the Committee on Excise Duty the power to set a minimum threshold for the excise duties due, in order to avoid disproportionate use of the Regulation.
Article 28 - Official Secrecy, Data Protection and Use of the information communicated under this Regulation
This Article clarifies the uses to which information collected may be used. Data protection has been extended to the protection of information that may not be related to the actions being carried out, to which an official has had access during the performance of his duties. In other respects, there is no substantial change from the existing provision apart from the update of references to other legislation.
The information exchanged is covered by official secrecy provisions and may only be disclosed for defined purposes. These purposes include judicial or administrative proceedings involving sanctions initiated because of infringements of tax law. The information may also be used for the purposes of establishing the assessment base, collection and control of excise duties and monitoring of movements of excise goods. Such information may also be used to determine other duties or taxes covered by Directive 2010/24/EU of 16 March 2010. This Article also provides a legal basis for exchanges between the excise authorities and other tax authorities in the same Member State.
As in the existing Regulation Member States shall restrict the scope of the obligations and duties defined in Articles 10, Article 11 i and Articles 12 and 21 of Directive 95/46/EC to safeguard where it is necessary the financial interests of the Member States and the European Union following Article 13 of Directive 95/46/EC. These exemptions allow for non-disclosure of the investigation and re-use of excise data collected originally from the economic operator or from other parties for other purposes.
This Article establishes the basis for access to data by persons authorised by the Commission, to restrict it to the minimum necessary for maintenance and operation of the system.
The text of this Article is the same as that of Article 32 in the existing Regulation, which establishes the equivalence of evidential value between information obtained through information exchange and evidence obtained by other authorities within the same Member State.
The text of this Article is the same as Article 33 in the existing Regulation. The purposes of this provision is to ensure effective coordination at national and European Union level by requiring Member States to take all measures necessary to this end.
Article 32 – Relations with Third Countries
This Article allows a member State to forward information from a third country to other Member States if the information is useful and also allows information to be forwarded to third countries, if the third country has an agreement to treat information according to the principle of Directive 95/46/EC.
Article 33 – Assistance to economic operators
This Article covers the service provided in Article 24(3) of the existing Regulation where a Member State may ask another Member State to conduct an administrative enquiry to trace missing documentation.
Chapter VI – Evaluation and Transitional and final provisions
As with the existing Regulation, the aim of the proposal is to put in place effective arrangements for mutual assistance and information exchange, which will prevent fraud in the movement of excise goods within the Union. It gives the Commission responsibility for overseeing administrative cooperation but does not give the Commission in any way an operational role in the detection and combating of tax fraud. However, because of the internal dimension of fraud within the Union involving excise duties, it is essential that it should be tackled at European Union level through the combined efforts of the Member States and the Commission. Responsibility for the measures required to prevent fraud in movements of excise goods within the Union lies with the Member States, but the Commission plays a coordinating and facilitating role. Consequently, Member States provide all the statistical information needed for the mutual evaluation of the effectiveness of administrative cooperation. The data to be collected and the method of evaluation through reporting now that EMCS is in operation will be redefined by an implementing act after the conclusion of on-going discussions with Member States. This Article will also provide the legal basis for the direct collection of movement data for the production of statistical reports using the CS/MISE application, thus largely removing the need for Member States to collect such statistics manually, thus improving the accuracy and timeliness of reporting.
Member States should also provide any other information concerning the methods and practices used or presumed to be used to contravene excise duty legislation. The Commission will report on all such information to the other Member States so that the administrative cooperation arrangements under this Regulation or under excise legislation can be continuously improved and so that Member States and the Commission can adapt administrative cooperation to deal with new threats that may present themselves.
Article 35 of the new proposal updates Article 34 of the existing Regulation to take into account new provisions concerning implementing acts under Regulation (EU) No. 182/2011 of the European Parliament and of the Council.
Article 36 – Repeal of regulation (EC) No. 2073/2004
The explicit repeal of the existing Regulation and establishing that all existing references to it should be taken to refer to the new Regulation.
Article 37 on reporting reproduced the text of Article 35 of the existing Regulation 2073/2004.
Article 38 – Bilateral Arrangements
This requires Member States to inform the Commission of any additional, bilateral agreements that may exist. The Commission will then inform other Member States accordingly.
Article 39 – Entry into force
This specifies the date of entry into force and the date from which it will apply – 1 January 2012.