| 4.12.2004 | EN | Official Journal of the European Union | L 359/1 |
COUNCIL REGULATION (EC) No 2073/2004
of 16 November 2004
on administrative cooperation in the field of excise duties
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 93 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Having regard to the opinion of the European Economic and Social Committee (2),
Whereas:
| (1) | Fraud in the European Union has serious consequences for national budgets and may lead to distortions of competition in movements of excisable products. It therefore has an impact on the operation of the internal market. |
| (2) | Close cooperation is required between the administrative authorities of each Member State responsible for implementing the measures adopted in this field in order to combat excise fraud. |
| (3) | It is therefore essential to define the rules under which the administrative authorities of the Member States must afford each other mutual assistance and cooperate with the Commission to ensure that the rules relating to the movement of excisable products and the collection of excise duties are correctly applied. |
| (4) | Mutual assistance and administrative cooperation in the field of excise duties are governed by Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, certain excise duties and taxation of insurance premiums (3). Mutual assistance and administrative cooperation in the field of VAT are governed by Regulation (EC) No 1798/2003 (4). |
| (5) | Although this legal instrument has proved to be effective, it will not be able to cope with new administrative cooperation imperatives resulting from increasing economic integration within the internal market. |
| (6) | Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (5) also introduced a number of information exchange instruments. Their procedures will have to be defined within a general legal framework for administrative cooperation in the field of excise duties. |
| (7) | There is also a need for clearer and more binding rules on cooperation between Member States as the rights and obligations of all the parties concerned are not sufficiently defined. |
| (8) | There are not sufficient direct contacts between local or national anti-fraud agencies as standard practice is for information to be communicated between central liaison offices. This leads to inefficiencies, under-use of the administrative cooperation arrangements and excessive delays in communication of information. Provision should therefore be made for more direct contacts between administrative departments to improve and speed up cooperation. |
| (9) | There is, also, a need for closer cooperation as, with the exception of movement verification under Article 15b of Directive 92/12/EEC, there are few automatic or spontaneous exchanges of information between Member States. The exchange of information between national authorities and between those authorities and the Commission should be more intensive and speedier if fraud is to be effectively combated. |
| (10) | There is consequently a need for a specific instrument in the field of excise duties to incorporate the provisions of Directive 77/799/EEC in this field. This instrument should also focus on the areas where cooperation between Member States can be improved through the introduction and improvement of systems for the transmission of information on the movement of excisable products. This instrument is without prejudice to the application of the Convention of 18 December 1997 on mutual assistance and cooperation between administrations (6). |
| (11) | This Regulation should not hamper other Community measures to combat fraud in the field of excise duties. |
| (12) | This Regulation incorporates and defines the arrangements contained in Directive 92/12/EEC to facilitate administrative cooperation between Member States. These arrangements include the register of traders concerned and premises and the movement verification system. This Regulation also introduces an early warning system between Member States. |
| (13) | For the purposes of this Regulation it is appropriate to limit certain rights and obligations laid down by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of data (7), in order to safeguard the interests referred to in Article 13(1)(e) of that Directive. |
| (14) | The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (8). |
| (15) | Since the objective of this Regulation, namely the simplification and the strengthening of administrative cooperation between Member States, which requires a harmonised approach, cannot be sufficiently achieved by the Member States alone, and can, by reason of the uniformity and effectiveness required, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. |
HAS ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1
1. This Regulation lays down the conditions under which the administrative authorities responsible in the Member States for the application of the legislation on excise duties are to cooperate with each other, and with the Commission, in order to ensure compliance with that legislation.
To that end, it lays down rules and procedures to enable the competent authorities of the Member States to cooperate and to exchange any information that may help them to effect a correct assessment of excise duties.
The Regulation also lays down rules and procedures for the exchange of certain types of information by electronic means, and in particular as regards intra-Community trade in excisable products.
2. This Regulation shall not affect the application in the Member States of the rules on mutual assistance in criminal matters. It shall also be without prejudice to the fulfilment of any obligation in relation to mutual assistance ensuing from other legal instruments, including bilateral or multilateral agreements.
Article 2
For the purposes of this Regulation:
| 1. | ‘competent authority’ means the authority designated in accordance with Article 3(1); |
| 2. | ‘requesting authority’ means the central liaison office of a Member State or any liaison department or competent official of that Member State requesting assistance on behalf of the competent authority; |
| 3. | ‘requested authority’ means the central liaison office of a Member State or any liaison department or competent official of that Member State who receives the request for assistance on behalf of the competent authority; |
| 4. | ‘central liaison office’ means the office which has been designated under Article 3(3) with principal responsibility for contacts with other Member States in the field of administrative cooperation; |
| 5. | ‘liaison department’ means any office other than the central liaison office with a specific territorial competence or a specialised operational responsibility which has been designated by the competent authority pursuant to Article 3(4) to exchange directly information on the basis of this Regulation; |
| 6. | ‘competent official’ means any official who can directly exchange information on the basis of this Regulation, for which he has been authorised pursuant to Article 3(5); |
| 7. | ‘excise office’ means any office at which some of the formalities laid down by excise rules may be completed; |
| 8. | ‘occasional automatic exchange’ means the systematic communication of predefined information, without prior request, to another Member State as and when that information becomes available; |
| 9. | ‘regular automatic exchange’ means the systematic communication of predefined information, without prior request, to another Member State at pre-established regular intervals; |
| 10. | ‘spontaneous exchange’ means the occasional communication without prior request of information to another Member State; |
| 11. | ‘computerised system’ means the computerised system for monitoring the movement of excisable products set up by Decision No 1152/2003/EC (9); |
| 12. | ‘person’ means: | (c) | where the legislation in force so provides, an association of persons recognised as having the capacity to perform legal acts but lacking the legal status of a legal person; |
|
| 13. | ‘by electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data, and employing wires, radio transmission, optical technologies or other electromagnetic means; |
| 14. | ‘identification number’ means the number provided for in Article |
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