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Document 52023PC0736
Proposal for a COUNCIL DECISION on the conclusion on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax
Proposal for a COUNCIL DECISION on the conclusion on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax
Proposal for a COUNCIL DECISION on the conclusion on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax
COM/2023/736 final
EUROPEAN COMMISSION
Brussels, 24.11.2023
COM(2023) 736 final
2023/0419(NLE)
Proposal for a
COUNCIL DECISION
on the conclusion on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax
EXPLANATORY MEMORANDUM
1.CONTEXT OF THE PROPOSAL
•Reasons for and objectives of the proposal
The present proposal concerns the conclusion of an amendment of the Agreement between the European Union and the Kingdom of Norway (“Norway”) on administrative cooperation, fight against fraud and recovery of claims in the area of value added tax 1 (“the Agreement”).
The Agreement entered into force in September 2018. The Agreement allows the EU Member States and Norway to cooperate in a similar way Member States do under Council Regulation (EU) No 904/2010 2 and Council Directive 2010/24/EU 3 to fight against VAT fraud, and assist each other to recover claims in the field of VAT.
However, in the meantime several amendments to Council Regulation (EU) 904/2010 were made and new tools for administrative cooperation were introduced, namely by the amending Council Regulation (EU) 2018/1541 4 . The new tools include:
- enhancement of the Eurofisc network through reinforced governance, the so-called follow-up actions (joint processing and analysis of data) and administrative enquiries carried out jointly (joint audits);
- working with other law enforcement EU bodies (Europol, OLAF);
- sharing key information on imports and on vehicles.
The possibility to use other means to exchange information than the standard forms was also introduced.
Article 41(5) of the Agreement lays down the formalities if a Party to the Agreement would like to revise it. Thus, this Party shall lay a proposal before the Joint Committee, which shall make recommendations, in particular for the commencement of negotiations according to the rules for international negotiations of the Parties.
During the second meeting on 25 November 2021 of the EU-Norway Joint Committee, established under Article 41(1) of the Agreement, the Kingdom of Norway officially submitted a request to supplement and amend the Agreement in order to:
• take into account the newly introduced administrative cooperation tools (the use of other means to exchange information than the standard forms, the administrative enquiries carried out jointly and the follow-up actions in the framework of Eurofisc).
• update the reference to the repealed Directive 95/46/EC by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data 5 and in particular, introducing a reference to the provisions of the European Economic Area (EEA) agreement 6 equivalent to Regulation (EU) 2016/679.
Norway has so far participated actively in most of the Eurofisc working fields. During the course of 2020 and 2021, Norway alerted the Member States to possible fraud and potential VAT loss amounting to EUR 5 billion in the carbon credit area.
The amendment of the Agreement by including the above-mentioned new tools would allow for better cooperation and enhance the fight against fraud, thus bringing added value for both parties to the Agreement (Norway and Member States).
A Council decision authorising the opening of negotiations with the Kingdom of Norway to amend the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax was adopted on 17 June 2022 7 .
The recommendation by the Joint Committee to commence negotiations, in line with Article 41(5) of the Agreement (exchange of letters), was adopted by written procedure in October 2022.
A round of negotiations was held on 18 November 2022 and agreement was reached on 27 June 2023.
The Council has consistently been informed about the progress in the Working Party on Tax Questions and in the High-Level Working Party.
The Commission considers that the objectives set out by the Council in its negotiating directives were attained and that the negotiated text is acceptable to the Union.
The signing, on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax took place on XXX.
•Consistency with existing policy provisions in the policy area
The amendment of the Agreement was negotiated in line with the comprehensive negotiating directives adopted by the Council on 17 June 2022.
Enhancing VAT administrative cooperation with third countries is one of the actions announced with the 2020 European Commission Communication for a Fair and Simple Taxation supporting the recovery 8 .
Furthermore, it should be noted that the amendment would cover cooperation tools already in force and applied by the Member States based on Regulation (EU) No 904/2010.
Therefore, this initiative is in line with the present Commission policy in the field of VAT and would harmonise Member States’ cooperation with Norway with the EU acquis.
2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
•Legal basis
The present proposal to the Council is submitted pursuant to Article 218(6) of the Treaty on the functioning of the European Union (TFEU).
Article 3(2) TFEU provides that, in addition to the areas of exclusive Union competence listed in Article 3(1) TFEU, the Union shall "also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope".
Under the Court of Justice consistent case law, an agreement may affect common rules or alter their scope when it covers areas where there are harmonising measures. 9
The subject matter of the revision of the Agreement, i.e. to cover the new administrative cooperation tools introduced by Council Regulation (EU) 2018/1541, falls within the Union`s exclusive competence. The update of the references to Directive 95/46/EC by Regulation (EU) 2016/679 might be done in the framework of the Joint Committee pursuant to Article 41(2)(k) of the Agreement. However, that update can also be included in the reopening of the negotiations on the text of the Agreement.
In accordance with the Treaties, the Commission makes a proposal for the conclusion of an agreement of the Union.
•Proportionality
The cooperation instruments to be included in the amendment of the Agreement will respect the principle of proportionality and will not go beyond what is necessary to meet the objective of providing a common framework for administrative cooperation between the European Union and the Kingdom of Norway in the field of VAT. This amendment of the Agreement will enable the Member States’ authorities responsible for the application of VAT legislation to cooperate with the Norwegian tax authorities in the same way they cooperate between themselves in the EU and based on the EU acquis.
3.RESULTS OF IMPACT ASSESSMENTS
•Impact assessment
According to tool 7 of the Better Regulation 10 , an impact assessment is not needed when the impact cannot be clearly identified ex-ante, the impacts are small or the Commission has little or no choice in the matter.
The amendment aims to align as much as possible with the EU legislation in the area of VAT administrative cooperation and data protection to the already in force EU-Norway agreement on VAT cooperation. In practice, the outcome of the envisaged proposal will not be any new legal act, but an amendment of the EU-Norway agreement.
•Fundamental rights
The envisaged Agreement will respect the key values of the European Union as established in Article 2 of the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union.
4.BUDGETARY IMPLICATIONS
The proposal has no implication for the EU budget.
5.OTHER ELEMENTS
•Detailed explanation of the specific provisions of the proposal
The foreseen amendments will provide Member States, to the extent possible and so far as necessary, with new cooperation tools with Norway, similar to the ones introduced in the Regulation 904/2010 with Regulation (EU) 2018/1541 just after the signature and conclusion of the EU-Norway Agreement. In addition, the amendment updates the reference to the repealed Directive 95/46/EC with reference to the national rules adopted pursuant to point 5e of Annex XI to the EEA Agreement and the Regulation (EU) 2016/679 on the protection of personal data. Furthermore, it was clarified that the Joint Committee is not consulted for disputes in the field of personal data protection rules referred to under point 5e of Annex XI to the EEA Agreement.
In particular, the amendment covers:
1. Administrative enquiries carried out jointly (so called Joint Audits):
Article 13(2)a would introduce the possibilities of administrative enquiries carried out jointly - as already foreseen for cooperation amongst Member States pursuant to Article 28 (2a) of Regulation (EU) 904/2010. This Article would allow officials authorised by the competent authorities of one State to be present during administrative enquiries carried out by officials of another State and to participate in administrative enquiries carried out jointly.
2. Eurofisc - Follow-up actions (FUA)
Article 15(1)a would allow the follow-up actions – as already possible amongst Member States pursuant to Article 33 (2)(d) of Regulation (EU) 904/2010 – within the framework of Eurofisc with the participation of Norway. Within the framework of Eurofisc, the Member States and Norway would be able to coordinate participating states` administrative enquiries of fraud identified by the Eurofisc liaison officials.
3. Update of the legal reference to Directive 95/46/EC
As the General Data Protection Regulation (EU) 2016/679 has been transposed with adjustment in the EEA Agreement, the proposed amendments of Article 6 replace the reference to Directive 95/46/EC with a reference to Regulation (EU) 2016/679 and point 5e of Annex XI to the EEA Agreement.
Finally, because the proposed Article 6 would include a reference to point 5e of Annex XI to the EEA Agreement, it would be necessary to amend Article 42 of the Agreement in order to make it clear that the Joint Committee is not competent for general data protection disputes.
2023/0419 (NLE)
Proposal for a
COUNCIL DECISION
on the conclusion on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 113 in conjunction with Article 218(6), second subparagraph, point (b) thereof,
Having regard to the proposal from the European Commission,
Having regard to the opinion of the European Parliament ( 11 ),
Whereas:
(1)The cooperation framework under the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax 12 (‘the Agreement’) has already shown very positive outcome;
(2)New tools for cooperation have been introduced in the EU legislation with the amendment of Council Regulation (EU) 904/2010 by Council Regulation (EU) 2018/1541 13 ;
(3)Therefore the Agreement needs to be amended to provide the Member States with new cooperation tools with Norway;
(4)The text of the amendment of the Agreement, which is the result of the negotiations, duly reflects the negotiating directives issued by the Council.
(5)In accordance with Council Decision (EU) XXXX ( 14 ), the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax (‘the Agreement’) was signed on xxxx [subject to its conclusion at a later date]. The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EC) No 2018/1725 of the European Parliament and of the Council 15 .
(6)The Agreement should be approved on behalf of the European Union,
HAS ADOPTED THIS DECISION:
Article 1
The amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax is hereby approved on behalf of the Union.
The text of the amendment of the Agreement is attached to this Decision.
Article 2
The President of the Council shall designate the person empowered to proceed, on behalf of the European Union, to send a notification, as provided for in Article 44(4) of the Agreement, in order to express the consent of the European Union to be bound by the Agreement.
Article 3
This Decision shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 24.11.2023
COM(2023) 736 final
ANNEX
to the
Proposal for a Council Decision
on the conclusion on behalf of the Union, of the amendment of the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax
AMENDMENT OF THE AGREEMENT BETWEEN THE EUROPEAN UNION AND THE KINGDOM OF NORWAY ON ADMINISTRATIVE COOPERATION, COMBATING FRAUD AND RECOVERY OF CLAIMS IN THE FIELD OF VALUE ADDED TAX
THE EUROPEAN UNION, hereinafter referred to as ‘the Union’,
and
THE KINGDOM OF NORWAY, hereinafter referred to as ‘Norway’,
hereinafter referred to as ‘the Parties’,
RECOGNISING that the cooperation framework under the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of value added tax 1 (‘the Agreement’) has already shown very positive outcome,
WHEREAS new tools for cooperation have been introduced in the EU legislation with the amendment of Council Regulation (EU) 904/2010 by Council Regulation (EU) 2018/1541, 2
RECOGNISING that the Member States and Norway would benefit from an extension of the cooperation tools that would allow a more effective cooperation, in particular as regards administrative enquiries carried out jointly and the Eurofisc follow-up actions,
WHEREAS in order to ensure the effective and efficient monitoring of VAT on cross-border transactions, the possibility for administrative enquiries carried out jointly, enabling officials from two or more states to form a single team and actively take part in an administrative enquiry carried out jointly will help to ensure proper enforcement of VAT and avoid duplication of work and administrative burden of both tax authorities and businesses,
WHEREAS in order to combat the most serious cross-border frauds, it is necessary to reinforce the work of the Eurofisc liaison officials to access, exchange, process and analyse all necessary information swiftly and coordinate any follow-up actions,
WHEREAS the legal references to Directive 95/46/EC 3 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data should be updated by necessary references to Regulation (EU) 2016/679 4 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data,
NOTING that Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data has been incorporated with adaptations in Annex XI to the EEA Agreement, is subject to the institutional framework of the EEA agreement 5 and Norway has adjusted its legislation to comply with those provisions at least in the areas covered by the wide scope of the EEA agreement,
NOTING that Regulation (EC) No 2018/1725 6 of the European Parliament and of the Council applies to the processing of personal data by the Union institutions and bodies for the purpose of this Agreement
AGREED AS FOLLOWS:
ARTICLE 1
The following amendments to the Agreement between the European Union and the Kingdom of Norway on administrative cooperation, combating fraud and recovery of claims in the field of VAT should be introduced:
(1) The 5th recital to the preamble is replaced by the following:
AWARE that the states should apply rules on confidentiality pursuant to national law and the protection of personal data pursuant to point 5e of Annex XI to the EEA Agreement,
(2) Article 6 is amended as follows:
(a)Paragraph 1 is replaced by the following:
1. Any information obtained by a state under this Agreement shall be treated as confidential and protected in the same manner as information obtained under its domestic law for the protection of personal data, in accordance with point 5e of Annex XI to the EEA Agreement.
(b) Paragraph 2 is replaced by the following:
2. Such information may be disclosed to persons or authorities (including courts and administrative or supervisory bodies) of the states concerned with the application of VAT laws and for the purpose of a correct assessment of VAT or the collection or administrative control of tax for the purpose of establishing the assessment of VAT as well as for the purpose of applying enforcement including recovery or precautionary measures with regard to VAT claims.
(c) Paragraph 6 is replaced by the following:
6. Information provided by a state to another state may be transmitted by the latter to another state, subject to prior consent by the competent authority from which the information originated. The state of origin of the information may oppose such a sharing of information within ten working days of the date on which it received the communication from the state wishing to share the information.
(d) Paragraph 6.a is added:
6.a All storage, processing or exchange of information referred to in this Agreement is subject to the national rules adopted pursuant to point 5e of Annex XI to the EEA Agreement as well as the specific requirements for the processing of personal data laid down in this Agreement. However, states may for the purpose of the correct application of this Agreement, restrict the scope of the obligations and rights provided for in the provisions of the EEA Agreement equivalent to Articles 12 to 15, 17, 21 and 22 of Regulation (EU) 2016/679. Such restrictions shall be limited to what is strictly necessary to safeguard the interests referred to in the provisions of the EEA Agreement equivalent to point (e) of Article 23(1) of Regulation (EU) 2016/679, in particular:
(a) enable the competent authorities of the states to fulfil their tasks properly for the purposes of this Agreement; or
(b) avoid obstructing official or legal enquiries, analyses, investigations or procedures for the purposes of this Agreement and to ensure that the prevention, investigation and detection of tax evasion and tax fraud is not jeopardised.
The processing and storage of information referred to in this Agreement shall be carried out only for the purposes referred to in Article 1 of this Agreement and the information shall not be further processed in a way that is incompatible with those purposes.
The processing of personal data on the basis of this Agreement for any other purposes, such as commercial purposes, shall be prohibited.
(e) Paragraph 7 is replaced by the following:
7. The states may transmit information obtained in accordance with this Agreement to third countries subject to the following conditions:
(a)the transfer of personal data is subject to the provisions of the EEA Agreement equivalent to Regulation (EU) 2016/679;
(b)the competent authority from which the information originates has consented to that communication;
(c)the transmission is permitted by legally binding and enforceable assistance arrangements between the state transmitting the information and that particular third country.
(f) Paragraph 9 is replaced by the following:
9. Each state shall immediately notify the other states concerned regarding any breach of confidentiality, personal data breach and any sanctions and remedial actions consequently imposed.
(g) Paragraph 10 is replaced by the following:
10. Persons duly accredited by the Security Accreditation Authority of the European Commission may have access to this information only in so far as it is necessary for care, maintenance and development of the electronic systems hosted by the Commission and used by states to implement this Agreement. Any access to personal data shall be treated in accordance with Regulation (EU) 2018/1725.
(3) Article 13 is amended as follows:
(a) Paragraph 1 is replaced by the following:
1. By agreement between the requesting authority and the requested authority, and in accordance with the arrangements laid down by the latter, officials authorised by the requesting authority may, with a view to exchanging the information referred to in Article 2(1)a, be present in the offices of the administrative authorities of the requested State, or any other place where those authorities carry out their duties. Where the requested information is contained in documentation to which the officials of the requested authority have access, the officials of the requesting authority shall be given copies thereof.
(b) Paragraph 2 is replaced by the following:
2. By agreement between the requesting authority and the requested authority, and in accordance with the arrangements laid down by the latter, officials authorised by the requesting authority may, with a view to exchanging the information referred to in Article 2(1)a, be present during the administrative enquiries carried out in the territory of the requested State. Such administrative enquiries shall be carried out exclusively by the officials of the requested authority. The officials of the requesting authority shall not exercise the powers of inspection conferred on officials of the requested authority. They may, however, have access to the same premises and documents as the latter, through the intermediation of the officials of the requested authority and for the sole purpose of carrying out the administrative enquiry.
(c) Paragraph 2.a is added:
2a. By agreement between the requesting authorities and the requested authority, and in accordance with the arrangements laid down by the latter, officials authorised by the requesting authorities may, with a view to collecting and exchanging the information referred to in Article 2(1)a, take part in the administrative enquiries carried out in the territory of the requested state. Such administrative enquiries shall be carried out jointly by the officials of the requesting and requested authorities and shall be conducted under the direction and according to the legislation of the requested state.
The officials of the requesting authorities shall have access to the same premises and documents as the officials of the requested authority and, in so far as it is permitted under the legislation of the requested state for its officials, be able to interview taxable persons.
Where it is permitted under the legislation of the requested state the officials of the requesting state shall exercise the same inspection powers as those conferred on officials of the requested state. The inspection powers of the officials of the requesting authorities shall be exercised for the sole purpose of carrying out the administrative enquiry.
By agreement between the requesting authorities and the requested authority, and in accordance with the arrangements laid down by the latter, the participating authorities may draft a common enquiry report.
(d) Paragraph 3 is replaced by the following:
3. The officials of the requesting authority present in another State in accordance with paragraphs 1, 2 and 2a must at all times be able to produce written authority stating their identity and their official capacity.
(4) Article 15 is amended as follows:
(a) Paragraph 1 is replaced by the following:
1. In order to promote and facilitate multilateral cooperation in the fight against VAT fraud and for the coordination of any follow-up actions, Norway shall be invited to participate in the network called Eurofisc, provided for in Chapter X of Council Regulation (EU) 904/2010 on administrative cooperation and combating fraud in the field of value added tax, under the conditions laid down in this Chapter.
(b) Paragraph 1a is added:
1a. Within the framework of Eurofisc, the states shall coordinate participating states` administrative enquiries of fraud identified by the Eurofisc liaison officials as referred to in Article 16(1) without the power to require the states to carry out administrative enquiries.
(5) Article 42 is replaced by the following:
Dispute settlement
Any dispute between the Parties relating to the interpretation or application of this Agreement, with the exception of disputes related to the application of point 5e of Annex XI to the EEA Agreement, shall be resolved through consultations within the Joint Committee. The Parties shall present the relevant information required for a thorough examination of the matter to the Joint Committee, with a view to resolving the dispute.
ARTICLE 2
Entry into force
This amendment of the Agreement shall enter into force the first day of the second month following the date on which the Parties have notified each other of the completion of the internal legal procedures referred to in paragraph 1 of the Agreement.
https://eur-lex.europa.eu/resource.html?uri=cellar:ff32b4af-c53e-11ec-b6f4-01aa75ed71a1.0002.02/DOC_1&format=PDF
Council Regulation (EU) 2018/1541 of 2 October 2018 amending Regulations (EU) No 904/2010 and (EU) 2017/2454 as regards measures to strengthen administrative cooperation in the field of value added tax (OJ L 259/1, 16.10.2018, p. 1-11)
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 such data (OJ L 281, 23.11.1995, p. 31–50)
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance (OJ L 119, 4.5.2016, p. 1–88)
https://www.efta.int/eea/eea-agreement
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (Text with EEA relevance (OJ L 295, 21.11.2018, p. 39–98)