(1)

Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.

(2)

The fact that national provisions relating to recovery are applicable only within national territories is in itself an obstacle to the functioning of the internal market. This situation prevents Community rules from being fully and fairly applied, particularly in the area of the common agricultural policy, and facilitates fraudulent operations.

(3)

It is necessary to meet the threat to the financial interests of the Community and the Member States and to the internal market posed by the development of fraud so as to safeguard better the competitiveness and fiscal neutrality of the internal market.

(4)

It is therefore necessary to adopt common rules on mutual assistance for recovery.

(5)

These rules should apply to the recovery of claims resulting from the various measures which form part of the system of total or partial financing of the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development, to the recovery of levies and other duties and import and export duties, valued added tax and harmonised excise duties (manufactured tobacco, alcohol and alcoholic beverages and mineral oils), as well as of taxes on income, on capital and on insurance premiums. They should also apply to the recovery of interest, administrative penalties and fines, with the exclusion of any sanction of a criminal nature, and costs incidental to such claims.

(6)

Mutual assistance should consist of the following: the requested authority should on the one hand supply the applicant authority with the information which the latter needs in order to recover claims arising in the Member State in which it is situated and notify the debtor of all instruments relating to such claims emanating from that Member State, and on the other hand it should recover, at the request of the applicant authority, the claims arising in the Member State in which the latter is situated.

(7)

These different forms of assistance should be afforded by the requested authority in compliance with the laws, regulations and administrative provisions governing such matters in the Member State in which it is situated.

(8)

It is necessary to lay down the conditions in accordance with which requests for assistance must be drawn up by the applicant authority and to give a limitative definition of the particular circumstances in which the requested authority may refuse assistance in any given case.

(9)

In order to permit more efficient and effective recovery of claims in respect of which a request for recovery has been made, the instrument permitting enforcement of the claim should, in principle, be treated as an instrument of the Member State in which the requested authority is situated.

(10)

When the requested authority is required to act on behalf of the applicant authority to recover a claim, it should be able, if the provisions in force in the Member State in which it is situated so permit and with the agreement of the applicant authority, to allow the debtor time to pay or authorise payment by instalment. Any interest charged on such payment facilities should also be remitted to the Member State in which the applicant authority is situated.

(11)

Upon a reasoned request from the applicant authority, the requested authority should also be able, in so far as the provisions in force in the Member State in which it is situated so permit, to take precautionary measures to guarantee the recovery of claims arising in the applicant Member State. Such claims should not necessarily benefit from the privileges accorded to similar claims arising in the Member State in which the requested authority is situated.

(12)

During the recovery procedure in the Member State in which the requested authority is situated the claim or the instrument authorising its enforcement issued in the Member State in which the applicant authority is situated may be contested by the person concerned. It should be laid down in such cases that the person concerned must bring the action contesting the claim before the competent body of the Member State in which the applicant authority is situated and that the requested authority must suspend, unless the applicant authority requests otherwise, any enforcement proceedings which it has begun until a decision is taken by the aforementioned body.

(13)

It should be laid down that documents and information communicated in the course of mutual assistance for recovery may not be used for other purposes.

(14)

The use of mutual assistance for recovery cannot, save in exceptional circumstances, be based on financial benefits or an interest in the results obtained, but Member States should be able to agree the reimbursement arrangements when recovery poses a specific problem.

(15)

This Directive should not curtail mutual assistance between particular Member States under bilateral or multilateral agreements or arrangements.

(16)

The measures necessary for the implementation of this Directive 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 (5).

(17)

This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part C,

(a)

refunds, interventions and other measures forming part of the system of total or partial financing of the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), including sums to be collected in connection with these actions;

(b)

levies and other duties provided for under the common organisation of the market for the sugar sector;

(c)

import duties;

(d)

export duties;

(e)

value added tax;

(f)

excise duties on:

(g)

taxes on income and capital;

(h)

taxes on insurance premiums;

(i)

interest, administrative penalties and fines, and costs incidental to the claims referred to in points (a) to (h), with the exclusion of any sanction of a criminal nature as determined by the laws in force in the Member State in which the requested authority is situated.

1.

‘applicant authority’ means the competent authority of a Member State which makes a request for assistance concerning a claim referred to in Article 2;

2.

‘requested authority’ means the competent authority of a Member State to which a request for assistance is made;

3.

‘import duties’ means customs duties and charges having equivalent effect on imports, and import charges laid down within the framework of the common agricultural policy or in that of specific arrangements applicable to certain goods resulting from the processing of agricultural products;

4.

‘export duties’ means customs duties and charges having equivalent effect on exports, and export charges laid down within the framework of the common agricultural policy or in that of specific arrangements applicable to certain goods resulting from the processing of agricultural products;

5.

‘taxes on income and capital’ means those enumerated in Article 1(3) of 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 and taxation of insurance premiums (6), read in conjunction with Article 1(4) of that Directive;

6.

‘taxes on insurance premiums’ means:

(a)

to grant the assistance provided for in Articles 6 to 13 if recovery of the claim would, because of the situation of the debtor, create serious economic or social difficulties in the Member State in which that authority is situated, in so far as the laws, regulations and administrative practices in force in the Member State in which the requested authority is situated allow such action for similar national claims;

(b)

to grant the assistance provided for in Articles 4 to 13, if the initial request under Articles 4, 5 or 6 applies to claims more than five years old, dating from the moment the instrument permitting the recovery is established in accordance with the laws, regulations or administrative practices in force in the Member State in which the applicant authority is situated, to the date of the request. However, in cases where the claim or the instrument is contested, the time-limit begins from the moment at which the applicant State establishes that the claim or the instrument permitting recovery may no longer be contested.

(a)

the person mentioned in the request for assistance;

(b)

those persons and authorities responsible for the recovery of the claims, and solely for that purpose;

(c)

the judicial authorities dealing with matters concerning the recovery of the claims.