Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Council Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties and in respect of value added tax and certain excise duties

(presented by the Commission pursuant to Article 250 §2 of the EC-Treaty)

EXPLANATORY MEMORANDUM

1. On 26 June 1998 the Commission presented to the Council a proposal (1) for a European Parliament and Council Directive amending Council Directive 76/308/EEC (2) on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties and in respect of value added tax and certain excise duties.

(1) OJ C 269, 28.8.1998, p. 16, COM(1998)364 final - COD 98/0206.

(2) Council Directive 76/308/EEC of 15 March 1976, OJ L 73, 19.3.1976, p. 18, as amended by Council Directive 79/1071/EEC of 6 December 1979, OJ L 331, 27.12.1979, p. 10, and by Council Directive 92/108/EEC of 14 December 1992, OJ L 390, 31.12.1992, p. 124.

2. The Economic and Social Committee endorsed the proposal on 27 January 1999. (3)

(3) OJ C

3. On 12 February 1999 the European Parliament also endorsed the proposal and suggested certain amendments. (4)

(4) OJ C

4. The Commission has accepted the following amendments, which are intended to stress the importance of the Community arrangements for the recovery of claims and boost their effectiveness:

- assertion in the recitals that the Member States must cooperate fully in the fight against tax evasion and avoidance so as to safeguard better the competitiveness and fiscal neutrality of the internal market;

- clarification of Article 8 of Directive 76/308/EEC with regard to the appeals procedure to be followed where the debtor contests the amount of the claim or the nature of the instrument permitting its enforcement;

- assertion in the recitals and in Article 10 of Directive 76/308/EEC that the claims to be recovered must be treated in an identical manner to similar claims arising in the Member State in which the requested authority is situated;

- replacement in Article 18 of Directive 76/308/EEC of the payment of compensation (calculated as a percentage of the claim to be recovered) with the reimbursement of costs actually incurred. Specific compensation arrangements will furthermore be reserved for cases where recovery poses a specific problem, concerns a very large amount or relates to the fight against organised crime.

Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Council Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties and in respect of value added tax and certain excise duties

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Initial proposal // Amended proposal

Recital 2a (new)

// Whereas, in the context of the internal market, Community and national financial interests, which are increasingly threatened by fraud, must be protected so as to safeguard better the competitiveness and fiscal neutrality of the internal market;

Recital 3

Whereas any claim in respect of which a request for recovery has been made should be treated as a claim of the Member State in which the requested authority is situated but should not be given preferential treatment over and above that given to similar claims arising in that Member State; // Whereas any claim in respect of which a request for recovery has been made should be treated as a claim of the Member State in which the requested authority is situated and should be treated in an identical manner to similar claims arising in that Member State;

Recital 5

Whereas the use of mutual assistance on recovery by the Member States should be encouraged by making the mutual financial benefits inherent in mutual assistance more transparent on a case-by-case basis; // Whereas the use of mutual assistance on recovery cannot, save in exceptional circumstances, be based on financial benefits or an interest in the results obtained, but whereas the principle of reimbursement of any costs to the requested Member State must be affirmed;

HAVE ADOPTED THIS DIRECTIVE

Article 1, paragraph 6(b)

(b) Paragraphs 3 and 4 are replaced by the following:

'3. The request for recovery shall indicate:

a) // the name, address and any other relevant information relating to the identification of the person concerned;

b) // the name, address and any other relevant information relating to the identification of the applicant authority;

c) // a reference to the instrument permitting its enforcement in the Member State in which the applicant authority is situated;

d) // the nature and the amount of the claim, including the principal, the interest, and any other penalties, fines and costs due indicated in the currencies of the Member States in which both authorities are situated;

e) // the date of notification of the claim to the addressee by the applicant authority and/or by the requested authority;

f) // the date from which enforcement is possible under the laws in force in the Member State in which the applicant authority is situated;

g) // the compensatory percentage in accordance with Article 18(2), second subparagraph;

h) // any other relevant information.

// // (b) Paragraphs 3 and 4 are replaced by the following:

'3. The request for recovery shall indicate:

a) // the name, address and any other relevant information relating to the identification of the person concerned;

b) // the name, address and any other relevant information relating to the identification of the applicant authority;

c) // a reference to the instrument permitting its enforcement in the Member State in which the applicant authority is situated;

d) // the nature and the amount of the claim, including the principal, the interest, and any other penalties, fines and costs due indicated in the currencies of the Member States in which both authorities are situated;

e) // the date of notification of the claim to the addressee by the applicant authority and/or by the requested authority;

f) // the date from which enforcement is possible under the laws in force in the Member State in which the applicant authority is situated;

g) // any other relevant information.

The request shall indicate the interest due as a fixed amount incurred up to the date of the request and as an additional amount to be determined on recovery. To permit the requested authority to calculate this additional amount, an interest rate and the method of calculation to be used by the requested authority in determining the interest due from the date of the request to the date of recovery from the debtor shall be indicated'. // The request shall indicate the interest due as a fixed amount incurred up to the date of the request and as an additional amount to be determined on recovery. To permit the requested authority to calculate this additional amount, an interest rate and the method of calculation to be used by the requested authority in determining the interest due from the date of the request to the date of recovery from the debtor shall be indicated'.

Article 1, paragraph 7

Article 8 is replaced by the following:

'Article 8

The instrument permitting enforcement of the claim shall be directly recognised and automatically treated as an instrument permitting enforcement of a claim of the Member State in which the requested authority is situated'. // Article 8 is replaced by the following:

'Article 8

The instrument permitting enforcement of the claim shall be directly recognised and automatically treated as an instrument permitting enforcement of a claim of the Member State in which the requested authority is situated.

Where such recognition leads to the claim or the instrument of enforcement issued by the requesting authority being contested, the provisions of Article 12 shall apply'.

Article , paragraph 9

Article 10 is replaced by the following:

'Article 10

The claims to be recovered shall not be given preferential treatment over and above that given to similar claims arising in the Member State in which the requested authority is situated'. // Article 10 is replaced by the following:

'Article 10

The claims to be recovered shall be treated in an identical manner to similar claims arising in the Member State in which the requested authority is situated'.

Article 1, paragraph 14

Article 18 is replaced by the following:

'Article 18

1. The requested authority shall recover from the person concerned and retain any costs directly linked to recovery which it incurs, in accordance with the laws and regulations in the Member State in which it is situated that apply to similar claims.

2. Until 31 December 2004, all costs incurred by the requested authority, other than those referred to in paragraph 1, resulting from mutual assistance which led to recovery of part or all of the claim by the requested authority shall be reimbursed by the applicant authority in accordance with the second subparagraph.

On remittance by the requested authority to the applicant authority of the amount of the claim recovered by the requested authority, the applicant authority shall pay a sum equal to a percentage greater than 0.1% of the amount of the claim recovered and remitted by the requested authority. The percentage shall be indicated by the applicant authority in the original request for recovery'. // Article 18 is replaced by the following:

'Article 18

1. The requested authority shall recover from the person concerned and retain any costs directly linked to recovery which it incurs, in accordance with the laws and regulations in the Member State in which it is situated that apply to similar claims.

2. All costs incurred by the requested authority, other than those referred to in paragraph 1, resulting from mutual assistance which led to recovery of part or all of the claim by the requested authority shall be reimbursed by the applicant authority in accordance with the second subparagraph.

Where recovery poses a specific problem, concerns a very large amount or relates to the fight against organised crime, the applicant and requested authorities may agree reimbursement arrangements specific to the cases in question'.

Done at Brussels,

For the European Parliament For the Council

The President The President