REPORT on the proposal for a Council directive concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures

29.1.2010 - (COM(2009)0028 – C6‑0061/2009 – 2009/0007(CNS)) - *

Committee on Economic and Monetary Affairs
Rapporteur: Theodor Dumitru Stolojan

Amendments

• 001-009 (PDF - 115 KB)
• 001-009 (DOC - 64 KB)
• 010-010 (PDF - 87 KB)
• 010-010 (DOC - 238 KB)

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council directive concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures

(COM(2209)0028 – C6‑0061/2009 – 2009/0007(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the Commission proposal to the Council (COM(2009)0028),

–   having regard to Articles 93 and 94 of the EC Treaty, pursuant to which the Council consulted Parliament (C6‑0061/2009),

–   having regard to the Communication from the Commission to the European Parliament and the Council entitled "Consequences of the entry into force of the Treaty of Lisbon for ongoing international decision-making procedures (COM(2009)0665),

–   having regard to Articles 113 and 115 of the Treaty on the Functioning of the EU,

–   having regard to Rule 55 of its Rules of Procedure,

–   having regard to the report of the Committee on Economic and Monetary Affairs (A7‑0002/2010),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to alter its proposal accordingly, pursuant to Article 293(2) of the Treaty of the Functioning of the EU;

3.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.  Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

5.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment  1 Proposal for a directive Article 3 – paragraph 6 a (new)
Text proposed by the Commission	Amendment
	6a. Each Member State shall develop appropriate control systems for its central liaison office, or for the liaison offices that it has designated as liaison departments, in the interests of transparency and cost-efficiency, and shall draw up a publicly accessible report, in the context of an annual monitoring exercise, accordingly.
Amendment  2 Proposal for a directive Article 4 – paragraph 1 – subparagraph 1
Text proposed by the Commission	Amendment
1. At the request of a central liaison office, a liaison office or a liaison department of a Member State (hereinafter "the applicant authority"), the central liaison office, a liaison office or a liaison department of the Member State to which the request is made (hereinafter "the requested authority") shall provide any information which might be relevant to the applicant authority in the recovery of its claims as referred to in Article 2.	1. The central liaison offices shall exchange any information with the central offices of the other Member States which might be relevant to the latter in the recovery of the claims as referred to in Article 2.
Justification
In the recovery of claims, time is of the essence. Now that the automatic exchange of information is becoming the norm in relations between Member States, it seems inappropriate to lose precious time through an on-demand exchange procedure, and more sensible to set up an automatic information exchange procedure.
Amendment  3 Proposal for a directive Article 5
Text proposed by the Commission	Amendment
The central liaison offices shall exchange information concerning refunds of taxes, other than value added tax, by the national tax authorities, if those refunds relate to persons established in another Member State and concern amounts exceeding EUR 10 000.	The central liaison offices shall exchange information concerning refunds of taxes, other than value added tax, by the national tax authorities, if those refunds relate to persons established in another Member State.
Justification
Given that the exchange of all this information is to be automatic, it does not seem appropriate to set a lower limit on the amounts to which it relates.
Amendment  4 Proposal for a directive Article 6 – paragraph 2
Text proposed by the Commission	Amendment
2. By agreement between the applicant authority and the requested authority and in accordance with the arrangements laid down by the latter, officials authorised by the applicant authority may, with a view to receiving information referred to in Article 4(1), be present during administrative enquiries carried out in the territory of the requested Member State.	2. By agreement between the applicant authority and the requested authority and in accordance with the arrangements laid down by the latter, officials authorised by the applicant authority may, with a view to receiving information referred to in this Directive, be present during administrative enquiries carried out in the territory of the requested Member State.
Where officials of the applicant Member State are present during administrative enquiries pursuant to the first subparagraph, they may exercise the powers of inspection conferred on officials of the requested Member State, on condition that they exercise those powers in accordance with the laws, regulations or administrative provisions of the requested Member State.	Where officials of the applicant authority are present during administrative enquiries pursuant to the first subparagraph, they may, where so agreed, exercise the powers of inspection conferred on officials of the requested authority, on condition that they exercise those powers in accordance with the laws, regulations or administrative provisions of the requested authority's Member State.
Any refusal of the person under investigation to respect the inspection measures of the officials of the applicant Member State shall be treated by the requested Member State as a refusal committed against its own officials.	Where an agreement has been concluded between the applicant authority and the requested authority concerning the inspection powers vested in officials by the requested authority, any refusal of the person under investigation to respect the inspection measures of the officials of the applicant authority shall be treated by the requested authority as a refusal committed against its own officials.
Justification
Cooperation is important, but it is even more important to create properly functioning cooperation between the Member States’ administrations. It is therefore desirable for both Member States to agree on the arrangements for the presence of an official on secondment and what inspection powers that official should have.
Amendment  5 Proposal for a directive Article 8 – paragraph 1 – point b
Text proposed by the Commission	Amendment
(b) by sending, by registered mail or electronically, a standard form to which the instrument or decision emanating from the applicant Member State is attached; for this standard form, the model set out in Annex I shall be used.	(b) by sending, by registered mail or electronically, a standard form to which the instrument or decision emanating from the applicant Member State, or a certified copy thereof, is attached; for this standard form, the model set in the Annex I shall be used.
Justification
The purpose of this amendment is to clarify that the original document issued by the Justice or the fiscal authorities relating to tax claims can be retained by the applicant Member State.
Amendment  6 Proposal for a directive Article 12 – paragraph 3
Text proposed by the Commission	Amendment
3. The entire amount of the claim that is recovered by the requested authority shall be remitted to the applicant Member State.	3. The entire amount of the claim that is recovered by the requested authority shall be remitted to the applicant Member State within fourteen days of the request.
Amendment  7 Proposal for a directive Article 23 a (new)
Text proposed by the Commission	Amendment
	Article 23a
	Follow-up of activities carried out in accordance with the directive
	The central offices shall issue an annual report on cooperation activities carried out during the previous tax year in accordance with this Directive. That report shall detail at least the number of requests received and issued, the action taken, the reasons given where the request was refused, the time taken to deal with the request, the amount of the claim and the amounts actually recovered. The report shall be forwarded to the European Parliament and the Commission for their opinions.
Justification
Provision must be made for a follow-up tool to assess the effectiveness of the directive and ensure in advance that the means are available to identify problems with putting this directive into practice.
Amendment  8 Proposal for a directive Article 27 – paragraph 2 a (new)
Text proposed by the Commission	Amendment
	The Commission shall work towards good cooperation between the Member States and shall, on an ongoing basis, monitor any complaints of shortcomings in the exchange of information and assistance between the Member States with a view to recovery in accordance with this Directive.
Amendment  9 Proposal for a directive Article 27 a (new)
Text proposed by the Commission	Amendment
	Article 27a
	Commission analysis
	The Commission shall conduct a comparative analysis on a wide range of tax recovery instruments provided for in Member States' tax codes, such as collection orders, recovery claims specified in the real estate property records, liens, enforcement procedure deadlines required by law and applied in practice with a view to facilitating the implementation of best practices for tax recovery in Member States.
Justification
The comparative analysis is still missing which could bring into examination the diverging practices in enforcement of national tax recovery law. The comparative analysis should be a catalyst in approximating the Member States' tax recovery practices (procedures, instruments and deadlines).

EXPLANATORY STATEMENT

1.  Background of the proposal:

The proposal aims at improving mutual assistance in the recovery of taxes with a view to reinforce and to improve recovery assistance between the Member States. Until now the number of requests among the Member States for mutual assistance for recovery of claims relating to certain taxes, based on Council Directive 1976/308/EEC, increased from 3,000 in 2003 to over 8,000 in 2008. The amounts for which assistance is requested grew by the factor of six and these trends are expected to continue as long as the mobility of capital and persons increases.

2.  The need for a new Council Directive:

A new Council Directive is needed because the recovery efficiency is very low, with a global recovery ratio of around 5% only. In order to improve this situation the mutual recovery assistance between the Member States should be strengthened. In particular, Member States deplore the insufficiency (slowness, disparity, lack of coordination, lack of transparency) of the legal measures at their disposal under Council Directive 1976/308/EEC.

3.  The content of the proposal:

With its proposal, the Commission wants to improve the recovery assistance system within the internal market, by introducing changes in four areas:

-     The extension of the scope of the mutual recovery assistance to other taxes and duties, including compulsory social security contributions.

-     Provision of: a) uniform instruments permitting enforcement or precautionary measures in order to avoid problems of recognition and translation of instruments emanating from other Member States; b) a standard form for the notification of documents relating to the claims on the territory of another Member State.

-     Furthermore, it seeks to enable officials of a Member State to be present in administrative offices or to participate actively in administrative enquiries on the territory of another Member State.

-     Finally, assistance requests and documents shall be communicated in a digital form and via an electronic network.

4. The issues under debate:

According to the information which is available to the rapporteur, a certain number of issues in the proposal are controversial:

§ The inclusion of compulsory social security contributions within the scope of mutual assistance (art. 2. b).

The rapporteur supports this aspect of the proposal since such extension is in line with the evolution of other international recovery assistance instruments.

§ Presence of the officials from one Member State in administrative offices of another Member State and participation in administrative enquiries (art.6).

Some Member States seem to agree upon the idea that foreign officials can be present in their administrative offices, but are not in favour of granting them the power of inspection and the right to participate in administrative enquiries. The rapporteur supports the proposal of the European Commission regarding the presence of the officials from one Member State in administrative offices of another Member State. These officials should also be able to participate in administrative enquiries and administrative inspections on the basis of an agreement between the two authorities.

§ The initial instrument permitting enforcement in the applicant Member State (art. 11.2).

The proposal includes the introduction of a uniform standard form for notification of instruments and decisions relating to the claim, which should resolve the problems of recognition and translation of instruments emanating from another Member State. This uniform instrument shall accompany any request for recovery. According to Article 11 paragraph 2a, the initial instrument permitting enforcement, drawn up for permitting enforcement measures in the applicant Member State and relating to the claim for which recovery assistance is requested, shall be attached to the uniform instrument permitting enforcement in the requested Member State.

The rapporteur is of the view that the purpose of this amendment is to clarify that the original document issued by the Justice or the fiscal authorities relating to tax claims can be retained by the applicant Member State. The initial instrument permitting enforcement in the applicants Member State is usually the original document issued by the Justice system or the fiscal administration and member States should be given the option to retain the original it.

5.  Conclusion

The rapporteur supports the Commission's proposal aims at reinforcing and improving recovery assistance between Member States. With his amendment, the rapporteur wishes to provide additional assurance regarding the status of original document issued by the Justice or the fiscal authorities relating to tax claims.

PROCEDURE

Title	Mutual assistance for the recovery of claims relating to taxes, duties and other measures
References	COM(2009)0028 – C6-0061/2009 – 2009/0007(CNS)
Date of consulting Parliament	16.2.2009
Committee responsible        Date announced in plenary	ECON 19.10.2009
Committee(s) asked for opinion(s)        Date announced in plenary	CONT 19.10.2009		JURI 19.10.2009
Not delivering opinions        Date of decision	CONT 1.10.2009		JURI 5.10.2009
Rapporteur(s)        Date appointed	Theodor Dumitru Stolojan 21.7.2009
Discussed in committee	10.11.2009		1.12.2009		21.1.2010
Date adopted	27.1.2010
Result of final vote	+: –: 0:	39 0 1
Members present for the final vote	Burkhard Balz, Sharon Bowles, Udo Bullmann, Pascal Canfin, Nikolaos Chountis, George Sabin Cutaş, Leonardo Domenici, Derk Jan Eppink, Markus Ferber, Elisa Ferreira, Vicky Ford, José Manuel García-Margallo y Marfil, Jean-Paul Gauzès, Sylvie Goulard, Enikő Győri, Liem Hoang Ngoc, Eva Joly, Othmar Karas, Wolf Klinz, Jürgen Klute, Werner Langen, Astrid Lulling, Arlene McCarthy, Ivari Padar, Alfredo Pallone, Anni Podimata, Antolín Sánchez Presedo, Olle Schmidt, Edward Scicluna, Peter Simon, Peter Skinner, Theodor Dumitru Stolojan, Ivo Strejček, Kay Swinburne, Marianne Thyssen, Ramon Tremosa i Balcells
Substitute(s) present for the final vote	Marta Andreasen, Sophie Briard Auconie, David Casa, Danuta Jazłowiecka, Arturs Krišjānis Kariņš, Philippe Lamberts, Andreas Schwab