title: Directive 2005/65/EC of the European Parliament and of the Council of  26 October 2005  on enhancing port security   (Text with EEA relevance)

text:
               25.11.2005

               EN

               Official Journal of the European Union

               L 310/28

      DIRECTIVE 2005/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 26 October 2005
   on enhancing port security
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Having regard to the opinion of the Committee of the Regions (2),
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),
   Whereas:

               (1)

               Security incidents resulting from terrorism are among the greatest threats to the ideals of democracy, freedom and peace, which are the very essence of the European Union.

               (2)

               People, infrastructure and equipment in ports should be protected against security incidents and their devastating effects. Such protection would benefit transport users, the economy and society as a whole.

               (3)

               On 31 March 2004 the European Parliament and the Council of the European Union adopted Regulation (EC) No 725/2004 (4) on enhancing ship and port facility security. The maritime security measures imposed by that Regulation constitute only part of the measures necessary to achieve an adequate level of security throughout maritime-linked transport chains. That Regulation is limited in scope to security measures on board vessels and the immediate ship/port interface.

               (4)

               In order to achieve the fullest protection possible for maritime and port industries, port security measures should be introduced, covering each port within the boundaries defined by the Member State concerned, and thereby ensuring that security measures taken pursuant to Regulation (EC) No 725/2004 benefit from enhanced security in the areas of port activity. These measures should apply to all those ports in which one or more port facilities covered by Regulation (EC) No 725/2004 are situated.

               (5)

               The security objective of this Directive should be achieved by adopting appropriate measures without prejudice to the rules of the Member States in the field of national security and measures which might be taken on the basis of Title VI of the Treaty on European Union.

               (6)

               Member States should rely upon detailed security assessments to identify the exact boundaries of the security-relevant port area, as well as the different measures required to ensure appropriate port security. Such measures should differ according to the security level in place and reflect differences in the risk profile of different sub-areas in the port.

               (7)

               Member States should approve port security plans which incorporate the findings of the port security assessment. The effectiveness of security measures also requires the clear division of tasks between all parties involved as well as regular exercises. This clear division of tasks and the recording of exercise procedures in the format of the port security plan is considered to contribute strongly to the effectiveness of both preventive and remedial port security measures.

               (8)

               Roll-on roll-off vessels are particularly vulnerable to security incidents, in particular if they carry passengers as well as cargo. Adequate measures should be taken on the basis of risk assessments which ensure that cars and goods vehicles destined for transport on roll-on roll-off vessels on domestic and international routes do not cause a risk to the vessel, its passengers and crew or to the cargo. The measures should be taken in a way which impedes as little as possible the fluidity of the operations.

               (9)

               Member States should be able to establish port security committees entrusted with providing practical advice in the ports covered by this Directive.

               (10)

               Member States should ensure that responsibilities in port security are clearly recognised by all parties involved. Member States should monitor compliance with security rules and clearly establish a responsible authority for all their ports, approve all security assessments and plans for their ports, set and communicate as appropriate security levels and ensure that measures are well communicated, implemented and coordinated.

               (11)

               Member States should approve assessments and plans and monitor their implementation in their ports. In order to keep disruption to ports and the administrative burden on inspection bodies to a minimum, the Commission's monitoring of the implementation of this Directive should be conducted jointly with the inspections provided for in Article 9(4) of Regulation (EC) No 725/2004.

               (12)

               Member States should ensure that a focal point for port security takes up the role of contact point between the Commission and Member States. They should inform the Commission which ports are covered by this Directive on the basis of the security assessments carried out.

               (13)

               The effective and standard implementation of measures under this security policy raises important questions in relation to its funding. The funding of extra security measures should not generate distortions of competition. By 30 June 2006, the Commission should submit to the European Parliament and the Council the findings of a study on the costs involved in measures taken under this Directive, addressing in particular the way financing is shared between the public authorities, port authorities and operators.

               (14)

               This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

               (15)

               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).

               (16)

               A procedure should be defined for the adaptation of this Directive to take account of developments in international instruments and, in the light of experience, to adapt or complement the detailed provisions of the Annexes to this Directive, without broadening the scope of this Directive.

               (17)

               Since the objectives of this Directive, namely the balanced introduction of appropriate measures in the field of maritime transport and port policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of the European scale of this Directive, 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 Directive does not go beyond what is necessary in order to achieve those objectives.

               (18)

               Since this Directive concerns seaports, the obligations herein contained should not be applicable to Austria, the Czech Republic, Hungary, Luxembourg or Slovakia,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject matter
   1.   The main objective of this Directive is to introduce Community measures to enhance port security in the face of threats of security incidents. This Directive shall also ensure that security measures taken pursuant to Regulation (EC) No 725/2004 benefit from enhanced port security.
   2.   The measures referred to in paragraph 1 shall consist of:

               (a)

               common basic rules on port security measures;

               (b)

               an implementation mechanism for these rules;

               (c)

               appropriate compliance monitoring mechanisms.

         Article 2
   Scope
   1.   This Directive lays down security measures which shall be observed in ports. Member States may apply the provisions of this Directive to port-related areas.
   2.   The measures laid down in this Directive shall apply to every port located in the territory of a Member State in which one or more port facilities covered by an approved port facility security plan pursuant to Regulation (EC) No 725/2004 is or are situated. This Directive shall not apply to military installations in ports.
   3.   Member States shall define for each port the boundaries of the port for the purposes of this Directive, appropriately taking into account information resulting from the port security assessment.
   4.   Where the boundaries of a port facility within the meaning of Regulation (EC) No 725/2004 have been defined by a Member State as effectively covering the port, the relevant provisions of Regulation (EC) No 725/2004 shall take precedence over those of this Directive.
   Article 3
   Definitions
   For the purpose of this Directive:

               1.

               ‘port’ means any specified area of land and water, with boundaries defined by the Member State in which the port is situated, containing works and equipment designed to facilitate commercial maritime transport operations;

               2.

               ‘ship/port interface’ means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship;

               3.

               ‘port facility’ means a location where the ship/port interface takes place; this includes areas such as anchorages, waiting berths and approaches from seaward, as appropriate;

               4.

               ‘focal point for port security’ means the body designated by each Member State to serve as contact point for the Commission and other Member States and to facilitate, follow up and provide information on the application of the port security measures laid down in this Directive;

               5.

               ‘port security authority’ means the authority responsible for security matters in a given port.

         Article 4
   Coordination with measures taken in application of Regulation (EC) No 725/2004
   Member States shall ensure that port security measures introduced by this Directive are closely coordinated with measures taken pursuant to Regulation (EC) No 725/2004.
   Article 5
   Port security authority
   1.   Member States shall designate a port security authority for each port covered by this Directive. A port security authority may be designated for more than one port.
   2.   The port security authority shall be responsible for the preparation and implementation of port security plans based on the findings of port security assessments.
   3.   Member States may designate a ‘competent authority for maritime security’ provided for under Regulation (EC) No 725/2004 as port security authority.
   Article 6
   Port security assessment
   1.   Member States shall ensure that port security assessments are carried out for the ports covered by this Directive. These assessments shall take due account of the specificities of different sections of a port and, where deemed applicable by the relevant authority of the Member State, of its adjacent areas if these have an impact on security in the port and shall take into account the assessments for port facilities within their boundaries as carried out pursuant to Regulation (EC) No 725/2004.
   2.   Each port security assessment shall be carried out taking into account as a minimum the detailed requirements laid down in Annex I.
   3.   Port security assessments may be carried out by a recognised security organisation as referred to in Article 11.
   4.   Port security assessments shall be approved by the Member State concerned.
   Article 7
   Port security plan
   1.   Subject to the findings of port security assessments, Member States shall ensure that port security plans are developed, maintained and updated. Port security plans shall adequately address the specificities of different sections of a port and shall integrate the security plans for port facilities within their boundaries established pursuant to Regulation (EC) No 725/2004.
   2.   Port security plans shall identify, for each of the different security levels referred to in Article 8:

               (a)

               the procedures to be followed;

               (b)

               the measures to be put in place;

               (c)

               the actions to be undertaken.

         3.   Each port security plan shall take into account as a minimum the detailed requirements specified in Annex II. Where, and to the extent appropriate, the port security plan shall in particular include security measures to be applied to passengers and vehicles set for embarkation on seagoing vessels which carry passengers and vehicles. In the case of international maritime transport services, the Member States concerned shall cooperate in the security assessment.
   4.   Port security plans may be developed by a recognised security organisation as referred to in Article 11.
   5.   Port security plans shall be approved by the Member State concerned before implementation.
   6.   Member States shall ensure that the implementation of port security plans is monitored. The monitoring shall be coordinated with other control activities carried out in the port.
   7.   Member States shall ensure that adequate exercises are performed, taking into account the basic security training exercise requirements listed in Annex III.
   Article 8
   Security levels
   1.   Member States shall introduce a system of security levels for ports or parts of ports.
   2.   There shall be three security levels, as defined in Regulation (EC) No 725/2004:

               —

               ‘Security level 1’ means the level for which minimum appropriate protective security measures shall be maintained at all times;

               —

               ‘Security level 2’ means the level for which appropriate additional protective security measures shall be maintained for a period of time as a result of a heightened risk of a security incident;

               —

               ‘Security level 3’ means the level for which further specific protective security measures shall be maintained for a limited period of time when a security incident is probable or imminent, although it may not be possible to identify the specific target.

         3.   Member States shall determine the security levels in use for each port or part of a port. At each security level, a Member State may determine that different security measures are to be implemented in different parts of the port depending on the findings of the port security assessment.
   4.   Member States shall communicate to the appropriate person or persons the security level in force for each port or part of a port as well as any changes thereto.
   Article 9
   Port security officer
   1.   A port security officer shall be approved by the Member State concerned for each port. Each port shall, where practicable, have a different port security officer, but may, if appropriate, share a security officer.
   2.   Port security officers shall fulfil the role of point of contact for port security related issues.
   3.   Where the port security officer is not the same as the port facility(ies) security officer(s) under Regulation (EC) No 725/2004, close cooperation between them shall be ensured.
   Article 10
   Reviews
   1.   Member States shall ensure that port security assessments and port security plans are reviewed as appropriate. They shall be reviewed at least once every five years.
   2.   The scope of the review shall be that of Articles 6 or 7, as appropriate.
   Article 11
   Recognised security organisation
   Member States may appoint recognised security organisations for the purposes specified in this Directive. Recognised security organisations shall fulfil the conditions set out in Annex IV.
   Article 12
   Focal point for port security
   Member States shall appoint for port security aspects a focal point. Member States may designate for port security aspects the focal point appointed under Regulation (EC) No 725/2004. The focal point for port security shall communicate to the Commission the list of ports concerned by this Directive and shall inform it of any changes to that list.
   Article 13
   Implementation and conformity checking
   1.   Member States shall set up a system ensuring adequate and regular supervision of the port security plans and their implementation.
   2.   The Commission shall, in cooperation with the focal points referred to in Article 12, monitor the implementation of this Directive by Member States.
   3.   This monitoring shall be conducted jointly with the inspections provided for in Article 9(4) of Regulation (EC) No 725/2004.
   Article 14
   Adaptations
   Annexes I to IV may be amended in accordance with the procedure referred to in Article 15(2), without broadening the scope of this Directive.
   Article 15
   Committee procedure
   1.   The Commission shall be assisted by the committee set up by Regulation (EC) No 725/2004.
   2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
   The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.
   3.   The Committee shall adopt its Rules of Procedure.
   Article 16
   Confidentiality and dissemination of information
   1.   In applying this Directive, the Commission shall take, in accordance with Decision 2001/844/EC, ECSC, Euratom (6), appropriate measures to protect information subject to the requirement of confidentiality to which it has access or which is communicated to it by Member States.
   Member States shall take equivalent measures in accordance with relevant national legislation.
   2.   Any personnel carrying out security inspections, or handling confidential information related to this Directive, shall have an appropriate level of security vetting by the Member State of which the person concerned is a national.
   Article 17
   Penalties
   Member States shall ensure that effective, proportionate and dissuasive penalties are introduced for infringements of the national provisions adopted pursuant to this Directive.
   Article 18
   Implementation
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 15 June 2007. They shall forthwith inform the Commission thereof.
   When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 19
   Evaluation report
   By 15 December 2008 and every five years thereafter, the Commission shall submit an evaluation report to the European Parliament and the Council based, among other things, on the information obtained pursuant to Article 13. In the report, the Commission shall analyse compliance with this Directive by Member States and the effectiveness of the measures taken. If necessary, it shall present proposals for additional measures.
   Article 20
   Entry into force
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 21
   Addressees
   This Directive is addressed to the Member States which have ports as referred to in Article 2(2).

      Done at Strasbourg, 26 October 2005.

            For the European Parliament

            The President

         J. BORRELL FONTELLES

            For the Council

            The President

         D. ALEXANDER

      (1)  OJ C 120, 20.5.2005, p. 28.

      (2)  OJ C 43, 18.2.2005, p. 26.

      (3)  Opinion of the European Parliament of 10 May 2005 (not yet published in the Official Journal) and Council Decision of 6 October 2005.

      (4)  OJ L 129, 29.4.2004, p. 6.

      (5)  OJ L 184, 17.7.1999, p. 23.

      (6)  OJ L 317, 3.12.2001, p. 1. Decision as last amended by Decision 2005/94/EC, Euratom (OJ L 31, 4.2.2005, p. 66).

      ANNEX I
      PORT SECURITY ASSESSMENT
      The port security assessment is the basis for the port security plan and its implementation. The port security assessment will cover at least:

                  —

                  identification and evaluation of important assets and infrastructure which it is important to protect;

                  —

                  identification of possible threats to the assets and infrastructure and the likelihood of their occurrence, in order to establish and prioritise security measures;

                  —

                  identification, selection and prioritisation of counter-measures and procedural changes and their level of effectiveness in reducing vulnerability; and

                  —

                  identification of weaknesses, including human factors in the infrastructure, policies and procedures.

            For this purpose the assessment will at least:

                  —

                  identify all areas which are relevant to port security, thus also defining the port boundaries. This includes port facilities which are already covered by Regulation (EC) No 725/2004 and whose risk assessment will serve as a basis;

                  —

                  identify security issues deriving from the interface between port facility and other port security measures;

                  —

                  identify which port personnel will be subject to background checks and/or security vetting because of their involvement in high-risk areas;

                  —

                  subdivide, if useful, the port according to the likelihood of security incidents. Areas will be judged not only upon their direct profile as a potential target, but also upon their potential role of passage when neighbouring areas are targeted;

                  —

                  identify risk variations, e.g. those based on seasonality;

                  —

                  identify the specific characteristics of each sub-area, such as location, accesses, power supply, communication system, ownership and users and other elements considered security-relevant;

                  —

                  identify potential threat scenarios for the port. The entire port or specific parts of its infrastructure, cargo, baggage, people or transport equipment within the port can be a direct target of an identified threat;

                  —

                  identify the specific consequences of a threat scenario. Consequences can impact on one or more sub-areas. Both direct and indirect consequences will be identified. Special attention will be given to the risk of human casualties;

                  —

                  identify the possibility of cluster effects of security incidents;

                  —

                  identify the vulnerabilities of each sub-area;

                  —

                  identify all organisational aspects relevant to overall port security, including the division of all security-related authorities, existing rules and procedures;

                  —

                  identify vulnerabilities of the overarching port security related to organisational, legislative and procedural aspects;

                  —

                  identify measures, procedures and actions aimed at reducing critical vulnerabilities. Specific attention will be paid to the need for, and the means of, access control or restrictions to the entire port or to specific parts of a port, including identification of passengers, port employees or other workers, visitors and ship crews, area or activity monitoring requirements, cargo and luggage control. Measures, procedures and actions will be consistent with the perceived risk, which may vary between port areas;

                  —

                  identify how measures, procedures and actions will be reinforced in the event of an increase of security level;

                  —

                  identify specific requirements for dealing with established security concerns, such as ‘suspect’ cargo, luggage, bunker, provisions or persons, unknown parcels, known dangers (e.g. bomb). These requirements will analyse desirability conditions for either clearing the risk where it is encountered or after moving it to a secure area;

                  —

                  identify measures, procedures and actions aimed at limiting and mitigating consequences;

                  —

                  identify task divisions allowing for the appropriate and correct implementation of the measures, procedures and actions identified;

                  —

                  pay specific attention, where appropriate, to the relationship with other security plans (e.g. port facility security plans) and other existing security measures. Attention will also be paid to the relationship with other response plans (e.g. oil spill response plan, port contingency plan, medical intervention plan, nuclear disaster plan, etc.);

                  —

                  identify communication requirements for implementation of the measures and procedures;

                  —

                  pay specific attention to measures to protect security-sensitive information from disclosure;

                  —

                  identify the need-to-know requirements of all those directly involved as well as, where appropriate, the general public.

      ANNEX II
      PORT SECURITY PLAN
      The port security plan sets out the port's security arrangements. It will be based on the findings of the port security assessment. It will clearly set out detailed measures. It will contain a control mechanism allowing, where necessary, for appropriate corrective measures to be taken.
      The port security plan will be based on the following general aspects:

                  —

                  defining all areas relevant to port security. Depending on the port security assessment, measures, procedures and actions may vary from sub-area to sub-area. Indeed, some sub-areas may require stronger preventive measures than others. Special attention will be paid to the interfaces between sub-areas, as identified in the port security assessment;

                  —

                  ensuring coordination between security measures for areas with different security characteristics;

                  —

                  providing, where necessary, for varying measures both with regard to different parts of the port, changing security levels, and specific intelligence;

                  —

                  identifying an organisational structure supporting the enhancement of port security.

            Based on those general aspects, the port security plan will attribute tasks and specify work plans in the following fields:

                  —

                  access requirements. For some areas, requirements will only enter into force when security levels exceed minimal thresholds. All requirements and thresholds will be comprehensively included in the port security plan;

                  —

                  ID, luggage and cargo control requirements. Requirements may or may not apply to sub-areas; requirements may or may not apply in full to different sub-areas. Persons entering or within a sub-area may be liable to control. The port security plan will appropriately respond to the findings of the port security assessment, which is the tool by which the security requirements of each sub-area and at each security level will be identified. When dedicated identification cards are developed for port security purposes, clear procedures will be established for the issue, the use-control and the return of such documents. Such procedures will take into account the specificities of certain groups of port users allowing for dedicated measures in order to limit the negative impact of access control requirements. Categories will at least include seafarers, authority officials, people regularly working in or visiting the port, residents living in the port and people occasionally working in or visiting the port;

                  —

                  liaison with cargo control, baggage and passenger control authorities. Where necessary, the plan is to provide for the linking up of the information and clearance systems of these authorities, including possible pre-arrival clearance systems;

                  —

                  procedures and measures for dealing with suspect cargo, luggage, bunker, provisions or persons, including identification of a secure area; as well as for other security concerns and breaches of port security;

                  —

                  monitoring requirements for sub-areas or activities within sub-areas. Both the need for technical solutions and the solutions themselves will be derived from the port security assessment;

                  —

                  signposting. Areas with access and/or control requirements will be properly signposted. Control and access requirements will appropriately take into account all relevant existing law and practices. Monitoring of activities will be appropriately indicated if national legislation so requires;

                  —

                  communication and security clearance. All relevant security information will be properly communicated according to security clearance standards included in the plan. In view of the sensitivity of some information, communication will be based on a need-to-know basis, but it will include where necessary procedures for communications addressed to the general public. Security clearance standards will form part of the plan and are aimed at protecting security sensitive information against unauthorised disclosure;

                  —

                  reporting of security incidents. With a view to ensuring a rapid response, the port security plan will set out clear reporting requirements to the port security officer of all security incidents and/or to the port security authority;

                  —

                  integration with other preventive plans or activities. The plan will specifically deal with integration with other preventive and control activities in force in the port;

                  —

                  integration with other response plans and/or inclusion of specific response measures, procedures and actions. The plan will detail interaction and coordination with other response and emergency plans. Where necessary conflicts and shortcomings will be resolved;

                  —

                  training and exercise requirements;

                  —

                  operational port security organisation and working procedures. The port security plan will detail the port security organisation, its task division and working procedures. It will also detail the coordination with port facility and ship security officers, where appropriate. It will delineate the tasks of the port security committee, if this exists;

                  —

                  procedures for adapting and updating the port security plan.

      ANNEX III
      BASIC SECURITY TRAINING EXERCISE REQUIREMENTS
      Various types of training exercises which may involve participation of port facility security officers, in conjunction with the relevant authorities of Member States, company security officers, or ship security officers, if available, will be carried out at least once each calendar year with no more than 18 months elapsing between the training exercises. Requests for the participation of company security officers or ships security officers in joint training exercises will be made bearing in mind the security and work implications for the ship. These training exercises will test communication, coordination, resource availability and response. These training exercises may be:

                  (1)

                  full scale or live;

                  (2)

                  tabletop simulation or seminar; or

                  (3)

                  combined with other exercises held such as emergency response or other port State authority exercises.

      ANNEX IV
      CONDITIONS TO BE FULFILLED BY A RECOGNISED SECURITY ORGANISATION
      A recognised security organisation will be able to demonstrate:

                  (1)

                  expertise in relevant aspects of port security;

                  (2)

                  an appropriate knowledge of port operations, including knowledge of port design and construction;

                  (3)

                  an appropriate knowledge of other security relevant operations potentially affecting port security;

                  (4)

                  the capability to assess the likely port security risks;

                  (5)

                  the ability to maintain and improve the port security expertise of its personnel;

                  (6)

                  the ability to monitor the continuing trustworthiness of its personnel;

                  (7)

                  the ability to maintain appropriate measures to avoid unauthorised disclosure of, or access to, security-sensitive material;

                  (8)

                  knowledge of relevant national and international legislation and security requirements;

                  (9)

                  knowledge of current security threats and patterns;

                  (10)

                  the ability to recognise and detect weapons, dangerous substances and devices;

                  (11)

                  the ability to recognise, on a non-discriminatory basis, characteristics and behavioural patterns of persons who are likely to threaten port security;

                  (12)

                  knowledge of techniques used to circumvent security measures;

                  (13)

                  knowledge of security and surveillance equipment and systems and their operational limitations.

            A recognised security organisation which has made a port security assessment or review of such an assessment for a port is not allowed to establish or review the port security plan for the same port.


Avis juridique important

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31972L0161

Council Directive 72/161/EEC of 17 April 1972 concerning the provision of socio-economic guidance for and the acquisition of occupational skills by persons engaged in agriculture

Official Journal L 096 , 23/04/1972 P. 0015 - 0020 Danish special edition: Series I Chapter 1972(II) P. 0326  English special edition: Series I Chapter 1972(II) P. 0339  Greek special edition: Chapter 03 Volume 7 P. 0187  Spanish special edition: Chapter 03 Volume 5 P. 0191  Portuguese special edition Chapter 03 Volume 5 P. 0191

COUNCIL DIRECTIVE of 17 April 1972 concerning the provision of socio-economic guidance for and the acquisition of occupational skills by persons engaged in agriculture (72/161/EEC)    THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,  Having regard to the proposal from the Commission;  Having regard to the Opinion of the European Parliament;  Whereas the objectives of the common agricultural policy set out in Article 39 (1) (a) and (b) of the Treaty can only be achieved through a reform of agricultural structures;  Whereas such structural reform is a basic factor in the development of the common agricultural policy ; whereas it should therefore be based on a Community concept and on Community criteria;  Whereas, because of the diversity of their causes, nature and gravity, structural problems in agriculture may require solutions which vary according to region and are capable of adjustment over a period of time ; whereas such solutions must contribute to the overall economic and social development of each region concerned ; whereas the best results can be achieved if, acting on the basis of Community concepts and criteria, Member States implement the common measures individually through their own legislative and administrative procedures, and if, in addition, they themselves determine, on the basis of conditions laid down by the Community, the extent to which such measures should be intensified in or concentrated on certain regions;  Whereas agricultural structures cannot be reformed unless a large number of those working in agriculture make a fundamental change in their occupational orientation;  Whereas the choice involved in any change of orientation within agriculture or in any transference to other occupations must be made with full knowledge of existing opportunities and of the consequences of such a choice;  Whereas, at present, in many regions of the Community it is difficult for those working in agriculture to make such a choice, because they do not have the necessary information available to them.  Whereas, if agriculture is to develop and specialise, a considerable rise will be required in the level of general, technical and economic training of the agricultural working population, particularly where, as a result of technical progress and changing market requirements, changes of policy in management, production and marketing have become essential;  Whereas in many regions the inadequacy of vocational training facilities is a bar to the efforts required to turn farmers into modern business managers and in general to provide farmers and their labour, whether hired or family, with occupational skills;  Whereas, in order to meet the needs of a developing agricultural industry, vocational training centres must draw up and adapt their programmes, and set and adjust the level and type of training required of their teaching staff, in accordance with minimum criteria laid down by Member States;  Whereas persons leaving agriculture are generally obliged to acquire new vocational skills and are able to do this only if an income is guaranteed to them during the period which they have to devote to retraining courses;  Whereas the proposed measures are in the Community's interest and are intended to achieve the objectives set out in by Article 39 (1) (a) of the Treaty, including the structural changes necessary for  the proper functioning of the common market ; whereas they therefore constitute common measures within the meaning of Article 6 of Council Regulation (EEC) No 729/701 on the financing of the common agricultural policy;  Whereas, inasmuch as the Community contributes to the financing of the common measures, it must be in a position to ascertain that the provisions adopted by Member States for the implementation of those measures will contribute towards achievement of the objectives thereof ; whereas, to this end, provision should be made for a procedure establishing close cooperation between Member States and the Commission within the Standing Committee on Agricultural Structure set up by Article 1 of the Council Decision of 4 December 19622 on the coordination of policies on agricultural structure, and involving, as regards financial aspects, consultation with the EAGGF Committee referred to in Articles 11 to 15 of Regulation (EEC) No 729/70;  Whereas it is desirable that the European Parliament and the Council be able, on the basis of a report submitted by the Commission, to examine annually the effects of the national and Community measures taken, so that they may assess the need to supplement or adapt the system introduced hereunder;  HAS ADOPTED THIS DIRECTIVE:     TITLE I Provision of socio-economic guidance for the agricultural population   Article 1 1. In order to enable persons engaged in agriculture to take decisions on their future occupations and those of their children with full knowledge of all the relevant facts, Member States shall set up schemes designed to provide farmers and their labour, both hired and family, with a greater degree of socio-economic guidance.  2. Member States may, acting in accordance with the general provisions adopted hereafter by the Council under the procedure laid down in Article 43 of the Treaty:    - vary according to region the financial incentives offered under schemes as provided for in paragraph 1;       - refrain from applying in certain regions all or some of the measures provided for in Article 2.           Article 2 Schemes as provided for in Article 1 shall comprise:    (a) the creation and development of services providing socio-economic guidance, such services to be either public or expressly appointed and approved for that purpose by Member States ; or the creation and development within services already existing of special departments for the provision of such guidance;       (b) the bearing by the Member States of the cost of training socio-economic counsellors, including where necessary grants or allowances to cover attendance at courses of instruction or in-service training.           Article 3 In providing socio-economic guidance, the express aim of the services and special departments referred to in Article 2 (a) shall be:    (a) to inform generally the agricultural population as to the possibilities open to them for improving their socio-economic situation;       (b) to study and examine individual cases with a view to adjustment to changing conditions;       (c) to put persons interested in changes of policy on their farms in contact with the competent advisory service;       (d) to give to those concerned information and advice on the following matters:  continuation of an occupation in agriculture;  choice of an occupation outside agriculture;  retirement from all occupational activity;       (e) to inform those concerned as to the opportunities existing for persons engaged in agriculture to receive further training and as to the prospects for their children in agriculture and in other occupations;       (f) to direct interested persons, according to the decisions contemplated or taken by such persons, to the competent specialised services.  1 OJ No L 94, 28.4.1970, p. 13. 2 OJ No 136, 17.12.1962, p. 2892/62.            Article 4 1. The training of socio-economic counsellors as referred to in Article 2 (b) must be such as will enable persons with the appropriate background training and sufficient experience in agricultural matters to supplement their technical knowledge and to acquire sufficient knowledge - or improve that which they already possess - with regard to:    - economic and human problems;       - the problems of the region where they are to work;       - the possibilities open to the persons concerned under the relevant legal and social provisions.         2. The minimum requirements which the courses of instruction and training referred to in Article 2 (b) must satisfy before they may be approved shall be laid down by the Member States, and in particular Member States shall:    (a) specify the qualifications for admission to a course;       (b) lay down minimum programmes of training for counsellors;       (c) specify the minimum length of courses;       (d) determine the means whereby the training received is to be attested;       (e) determine the structure of courses, both as regards the quality of training to be given and as regards the cost and amount of such training.           TITLE II Acquisition of occupational skills by persons engaged in agriculture   Article 5 1. In order to enable persons aged eighteen or over engaged in agriculture to acquire new agricultural skills, or to improve those which they already possess, so that they can integrate into modern agriculture, Member States shall set up schemes to encourage the vocational advancement and adaptation of farmers and hired and family agricultural workers.  Such chemes shall not cover the normal agricultural courses of study organised as part of secondary or higher education systems.  2. Member States may, acting in accordance with the general provisions to be adopted hereafter by the Council under the procedure laid down in Article 43 of the Treaty:    - vary according to region the operation of schemes of encouragement as provided for in paragraph 1;       - refrain from applying in certain regions all or some of the measures provided for in Article 6.           Article 6 1. Schemes of encouragement as provided for in Article 5 shall consist of measures designed to give persons engaged in agriculture further training of a general, technical and economic nature.  Such measures shall be carried out through the medium of training centres, or in-service training courses, providing basic or advanced vocational training. Such centres or courses must be either public or expressly appointed and approved by Member States for the purpose of providing the required training.  2. The minimum requirements which the aforesaid centres and courses must satisfy before they may be approved shall be fixed by the Member States, and in particular Member States shall:    (a) specify the qualifications for admission to a centre or course;       (b) lay down minimum programmes, and in particular the importance to be given to technical and economic training respectively;       (c) specify the duration of the training to be given, having regard to the particular type of training in question and to the objectives envisaged in Article 5;       (d) determine the structure of courses, both as regards the quality of training to be given and as regards the cost and amount of such training.         3. For the purpose of carrying out the measures provided for in paragraph 1 Member States shall make the necessary provision for:    - the establishment and development of centres or courses as referred to in paragraph 1;       - the award of grants or allowances to cover attendance at such centres or courses.            TITLE III Vocational retraining of persons engaged in agriculture who wish to take up an occupation outside agriculture   Article 7 1. Pending the entry into force of the decision to be taken by the Council in pursuance of the Council Decision of 1 February 19711 on the reform of the European Social Fund, which will empower that body to provide funds for the assistance of persons working in agriculture, Member States shall, for the purpose of enabling such persons wishing to take up occupations outside agriculture to attend vocational retraining courses, introduce schemes of aids sufficient to provide those concerned with an income for the duration of their retraining course and to enable them to become or remain eligible to receive social security benefit. Such aids may not however cover the actual payment of social security benefit.  2. The Council, acting on a proposal from the Commission and voting as provided in Article 43 (2) of the Treaty, shall lay down the conditions and criteria for the implementation of paragraph 1.    TITLE IV Financial and general provisions   Article 8 The measures provided for in this Directive constitute common measures within the meaning of Article 6 (1) of Regulation (EEC) No 729/70    Article 9 1. The estimated time required for carrying out the common measures is ten years.  2. Five years after this Directive takes effect, the aforesaid measures shall be re-examined by the Council upon a proposal from the Commission.  3. The total contribution by the EAGGF to the cost of the common measures is estimated at 110 million units of account for the first five years.  4. The provisions of Article 6 (5) of Regulation (EEC) No 729/70 shall apply to this Directive.    Article 10 1. Member States shall forward to the Commission:    - drafts of all laws, regulations or administrative provisions which they propose to adopt in pursuance of this Directive;       - the texts of any provisions effectively implementing this Directive existing prior to the date on which it takes effect.         2. When submitting pursuant to paragraph 1 drafts of laws, regulations or administrative provisions or the texts of existing provisions, Member States shall also submit an explanatory memorandum showing the relationship at regional level between the measure in question and economic and structural conditions.  3. The Commission shall examine drafts forwarded in accordance with the first indent of paragraph 1 for the purpose of determining whether, having regard to the objectives of this Directive and to the need for a proper connection between the various measures, such drafts comply with the Directive and thus satisfy the conditions for financial contribution by the Community to common measures within the meaning of Article 8. Within two months following receipt of any draft the Commission shall, after consulting the Standing Committee on Agricultural Structure, issue an opinion thereon.  4. Member States shall, immediately on the adoption of any law, regulation or administrative provision as referred to in paragraph 3, forward the text thereof to the Commission.    Article 11 1. With regard to provisions the texts of which are forwarded pursuant to the second indent of Article 10 (1) or to Article 10 (4), the Commission shall examine whether, having regard to the objectives of this Directive and to the need for a proper connection between the various measures, such provisions satisfy the conditions for financial contribution by the Community to common measures within the meaning of Article 8. Within two months following receipt of any text, the Commission representative shall, after consulting the EAGGF Committee on the financial aspects of the provision, submit a draft decision thereon to the Standing Committee on Agricultural Structure.  2. The Committee shall issue its opinion within a time limit to be fixed by the Chairman according to the urgency of the matters for examination. It shall  1 OJ No L 28, 4.2.1971, p. 15.  decide by a majority of twelve votes, the votes of Member States being weighted as laid down in Article 148 (2) of the Treaty. The Chairman shall not vote.  3. The Commission shall adopt the decision. However, if the decision is not in accordance with the opinion issued by the Committee, it shall immediately be communicated to the Council. In that event, the Commission may defer application of the decision for a period not exceeding one month from the date of its communication.  The Council, voting as provided in Article 43 (2) of the Treaty, may within that month adopt a different decision.    Article 12 1. The expenditure incurred by Member States for the purposes of any measure taken under Article 2, Article 6 (3), or Article 7, shall be eligible, up to the amounts specified in paragraph 2, for assistance from the Guidance Section of the EAGGF.  2. The Guidance Section of the EAGGF shall refund to Member States:    - 25 % of a standard amount of 7 500 units of account in respect of each counsellor beginning his duties for the first time and fulfilling the requirements laid down in Article 4 ; but expenditure in respect of any replacement for such counsellor during the period of operation of the common measures shall not be eligible for assistance from the EAGGF;       - 25 % of the expenditure actually incurred in connection with the measures provided for in Article 2 (b), up to an overall amount of 4 500 units of account for each counsellor trained;       - 25 % of the expenditure actually incurred in implementing Article 6 (3), up to an overall amount of 1 500 units of account for each farmer or agricultural worker having completed a course of vocational training or advanced vocational training;       - 25 % of the expenditure actually incurred in connection with any scheme as provided for in Article 7. This provision shall apply only until the entry into force of the decision to be taken by the Council in pursuance of Article 4 of the Council Decision of 1 February 1971 on the reform of the European Social Fund, which will empower that body to provide funds for the assistance of persons working in agriculture who wish to take up occupations outside agriculture.         3. Detailed rules for applying paragraph 2 shall be adopted according to the procedure laid down in Article 13 of Regulation (EEC) No 729/70.    Article 13 1. Measures taken by Member States shall not be eligible to benefit from financial contribution by the Community unless a favourable decision under Article 11 has been given in respect of the provisions relating thereto.  2. Financial contribution by the Community shall be only in respect of eligible expenditure arising in connection with aids granted in pursuance of decisions taken after the date on which this Directive takes effect.    Article 14 1. Applications for reimbursement shall relate to expenditure incurred by Member States in the course of a calendar year and shall be submitted to the Commission before 1 July of the following year.  2. The granting of aid from the Fund shall be decided upon in accordance with Article 7 (1) of Regulation (EEC) No 729/70.  3. Payments on account may be authorized by the Commission.  4. Detailed rules for applying this Article shall be adopted according to the procedure laid down in Article 13 of Regulation (EEC) No 729/70.    Article 15 This Directive shall not affect the power of Member States to take, in respect of matters coming within the scope of this Directive, additional measures of aid the terms or conditions of which differ from those laid down herein, or the amounts of which exceed the upper limits set herein, provided that such measures are in accordance with Articles 92 to 94 of the Treaty.    Article 16 Before 1 August in each year the national and Community measures in force relating to this Directive shall be examined in the context of an annual report which the Commission shall submit to the European Parliament and to the Council, and for which Member States shall send all necessary documentation to the Commission.  The Council shall evaluate the effects of such measures, taking into consideration the rate of structural development required to achieve the objectives of the common agricultural policy, their effect on the harmonious development of the regions  of the Community and the financial implications of the measures in question.  If necessary, it shall, acting under the procedure laid down in Article 43 of the Treaty, adopt appropriate provisions.    Article 17 Member States may lay down additional conditions as regards the implementation of the measures of aid provided for in this Directive.    Article 18 Member States shall, within one year from the date of notification of this Directive, bring into force the measures necessary to comply therewith.    Article 19 This Directive is addressed to the Member States.     Done at Brussels, 17 April 1972.  For the Council  The President  J.P. BUCHLER


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Council Directive 2001/44/EC of 15 June 2001 amending 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

Official Journal L 175 , 28/06/2001 P. 0017 - 0020

Council Directive 2001/44/ECof 15 June 2001amending 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 dutiesTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Articles 93 and 94 thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the European Parliament(2),Having regard to the opinion of the Economic and Social Committee(3),Whereas:(1) The existing arrangements for mutual assistance for recovery set out in Directive 76/308/EEC(4) should be modified 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.(2) 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.(3) In order to safeguard better the financial interests of the Member States and the neutrality of the internal market, claims relating to certain taxes on income and capital and taxes on insurance premiums should be added to the scope of the mutual assistance provided for by Directive 76/308/EEC.(4) 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.(5) 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.(6) 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).(7) Directive 76/308/EEC should therefore be amended accordingly,HAS ADOPTED THIS DIRECTIVE:Article 1Directive 76/308/EEC is hereby amended as follows:1. The title shall be replaced by the following: "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."2. Article 2 shall be replaced by the following: "Article 2This Directive shall apply to all claims relating to:(a) refunds, interventions and other measures forming part of the system of total or partial financing of the European Agricultural Guidance and Guarantee Fund (EAGGF), 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:- manufactured tobacco,- alcohol and alcoholic beverages,- mineral oils;(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."3. In Article 3, the following indents shall be added: "- '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,- '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,- 'taxes on income and capital' means those enumerated in Article 1(3) of Directive 77/799/EEC(6), read in conjunction with Article 1(4) of that Directive,- 'taxes on insurance premiums' means:>TABLE>This Directive shall also apply to claims relating to identical or analogous taxes which supplement or replace the taxes on insurance premiums referred to in the sixth indent. The competent authorities of the Member States shall communicate to each other and to the Commission the dates of entry into force of such taxes."4. In Article 4(2), the words "the name and address" shall be replaced by: "the name, address and any other relevant information relating to the identification to which the applicant authority normally has access".5. In Article 5(2) the words "the name and address" shall be replaced by: "the name, address and any other relevant information relating to the identification to which the applicant authority normally has access".6. Articles 7, 8, 9 and 10 shall be replaced by the following: "Article 71. The request for recovery of a claim which the applicant authority addresses to the requested authority must be accompanied by an official or certified copy of the instrument permitting its enforcement, issued in the Member State in which the applicant authority is situated and, if appropriate, by the original or a certified copy of other documents necessary for recovery.2. The applicant authority may not make a request for recovery unless:(a) the claim and/or the instrument permitting its enforcement are not contested in the Member State in which it is situated, except in cases where the second subparagraph of Article 12(2) is applied,(b) it has, in the Member State in which it is situated, applied appropriate recovery procedures available to it on the basis of the instrument referred to in paragraph 1, and the measures taken will not result in the payment in full of the claim.3. The request for recovery shall indicate:(a) the name, address and any other relevant information relating to the identification of the person concerned and/or to the third party holding his or her assets;(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 issued 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 instrument to the addressee by the applicant authority and/or by the requested authority;(f) the date from which and the period during 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.4. The request for recovery shall also contain a declaration by the applicant authority confirming that the conditions set out in paragraph 2 have been fulfilled.5. As soon as any relevant information relating to the matter which gave rise to the request for recovery comes to the knowledge of the applicant authority it shall forward it to the requested authority.Article 81. 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.2. Notwithstanding the first paragraph, the instrument permitting enforcement of the claim may, where appropriate and in accordance with the provisions in force in the Member State in which the requested authority is situated, be accepted as, recognised as, supplemented with, or replaced by an instrument authorising enforcement in the territory of that Member State.Within three months of the date of receipt of the request for recovery, Member States shall endeavour to complete such acceptance, recognition, supplementing or replacement, except in cases where the third subparagraph is applied. They may not be refused if the instrument permitting enforcement is properly drawn up. The requested authority shall inform the applicant authority of the grounds for exceeding the period of three months.If any of these formalities should give rise to contestation in connection with the claim and/or the instrument permitting enforcement issued by the applicant authority, Article 12 shall apply.Article 91. Claims shall be recovered in the currency of the Member State in which the requested authority is situated. The entire amount of the claim that is recovered by the requested authority shall be remitted by the requested authority to the applicant authority.2. The requested authority may, where the laws, regulations or administrative provisions in force in the Member State in which it is situated so permit, and after consultations with the applicant authority, allow the debtor time to pay or authorise payment by instalment. Any interest charged by the requested authority in respect of such extra time to pay shall also be remitted to the Member State in which the applicant authority is situated.From the date on which the instrument permitting enforcement of recovery of the claim has been directly recognised or accepted, recognised, supplemented or replaced in accordance with Article 8, interest will be charged for late payment under the laws, regulations and administrative provisions in force in the Member State in which the requested authority is situated and shall also be remitted to the Member State in which the applicant authority is situated.Article 10Notwithstanding Article 6(2), the claims to be recovered shall not necessarily benefit from the privileges accorded to similar claims arising in the Member State in which the requested authority is situated."7. Article 12(2) shall be amended as follows:(a) The following shall be added to the first sentence: "unless the applicant authority requests otherwise in accordance with the second subparagraph";(b) the following subparagraph shall be added: "Notwithstanding the first subparagraph of paragraph 2, the applicant authority may in accordance with the law, regulations and administrative practices in force in the Member State in which it is situated, request the requested authority to recover a contested claim, in so far as the relevant laws, regulations and administrative practices in force in the Member State in which the requested authority is situated allow such action. If the result of contestation is subsequently favourable to the debtor, the applicant authority shall be liable for the reimbursement of any sums recovered, together with any compensation due, in accordance with the laws in force in the Member State in which the requested authority is situated."8. In Article 14, the first paragraph, shall be replaced by the following: "The requested authority shall not be obliged:(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 Article 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 enforcement order permitting recovery may no longer be contested."9. In Article 17, the words "and relevant documents" shall be replaced by: "the instrument permitting the enforcement and other relevant documents".10. Article 18 shall be replaced by the following: "Article 181. The requested authority shall recover from the person concerned and retain any costs linked to recovery which it incurs, in accordance with the laws and regulations of the Member State in which it is situated that apply to similar claims.2. Member States shall renounce all claims on each other for the refund of costs resulting from mutual assistance which they grant each other pursuant to this Directive.3. Where recovery poses a specific problem, concerns a very large amount in costs or relates to the fight against organised crime, the applicant and requested authorities may agree reimbursement arrangements specific to the cases in question.4. The Member State in which the applicant authority is situated shall remain liable to the Member State in which the requested authority is situated for any costs and any losses incurred as a result of actions held to be unfounded, as far as either the substance of the claim or the validity of the instrument issued by the applicant authority are concerned."11. Article 20 shall be replaced by the following: "Article 201. The Commission shall be assisted by a recovery committee (hereinafter referred to as 'the Committee'), composed of representatives of the Member States and chaired by the representative of the Commission.2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period referred to in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its own rules of procedure."12. Article 22 shall be replaced by the following: "Article 22The detailed rules for implementing Articles 4(2) and (4), 5(2) and (3) and Articles 7, 8, 9, 11, 12(1) and (2), 14, 18(3) and 25 and for determining the means by which communications between the authorities may be transmitted, the rules on conversion, transfer of sums recovered, and the fixing of a minimum amount for claims which may give rise to a request for assistance, shall be adopted in accordance with the procedure laid down in Article 20(2)."13. The following paragraph shall be added to Article 25: "Each Member State shall inform the Commission annually of the number of requests for information, notification and recovery sent and received each year, the amount of the claims involved and the amounts recovered. The Commission shall report biennially to the European Parliament and the Council on the use made of these arrangements and on the results achieved."Article 21. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 June 2002. They shall forthwith inform the Commission thereof.When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive together with a table showing how the provisions of this Directive correspond to the national provisions adopted.Article 3This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.Article 4This Directive is addressed to the Member States.Done at Göteborg, 15 June 2001.For the CouncilThe PresidentB. Ringholm(1) OJ C 269, 28.8.1998, p. 16 andOJ C 179, 24.6.1999, p. 6.(2) OJ C 150, 28.5.1999, p. 621 and opinion delivered on 16.5.2001 (not yet published in the Official Journal).(3) OJ C 101, 12.4.1999, p. 26.(4) OJ L 73, 19.3.1976, p. 18. Directive as last amended by the 1994 Act of Accession.(5) OJ L 184, 17.7.1999, p. 23.(6) 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 (OJ L 336, 27.12.1977, p. 15). Directive as last amended by the 1994 Act of Accession.


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Council Directive 2004/56/EC of 21 April 2004 amending Directive 77/799/EEC 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

Official Journal L 127 , 29/04/2004 P. 0070 - 0072

Council Directive 2004/56/ECof 21 April 2004amending Directive 77/799/EEC concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, certain excise duties and taxation of insurance premiumsTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Articles 93 and 94 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) 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) established the ground rules for administrative cooperation and the exchange of information between Member States in order to detect and prevent tax evasion and tax fraud and to enable Member States to carry out a correct tax assessment. It is essential to improve, expand and modernise those rules.(2) When a Member State conducts enquiries in order to obtain the information necessary to respond to a request for assistance, that State should be regarded as acting on its own account; in that way, there will only be one set of rules applying to the information-gathering process and the investigation will not be undermined by delays.(3) It is inappropriate, if the fight against tax fraud is to be effective, that a Member State which has received information from another Member State should subsequently have to request permission to disclose the information in public hearings or judgements.(4) It should be made clear that a Member State is not under any obligation to carry out enquiries in order to obtain the information necessary to respond to a request for assistance where either its legislation or administrative practices do not permit its competent authority to conduct enquiries or to collect such information.(5) It should be possible for the competent authority of a Member State to refuse information or assistance when the requesting Member State is not in a position to supply the same type of information, whether for reasons of fact or of law.(6) In view of the legal requirement in certain Member States that a taxpayer be notified of decisions and instruments concerning his tax liability and of the ensuing difficulties for the tax authorities, including cases where the taxpayer has relocated to another Member State, it is desirable that, in such circumstances, the tax authorities should be able to call upon the assistance of the competent authorities of the Member State to which the taxpayer has relocated.(7) Since the tax situation of one or more persons liable to tax established in several Member States often is of common or complementary interest, it should be made possible for simultaneous controls to be carried out to such persons by two or more Member States, by mutual agreement and on a voluntary basis, whenever such controls appear to be more effective than controls carried out by only one Member State.(8) The Commission submitted its proposal for a Directive on the basis of Article 95 of the Treaty. The Council, taking the view that the proposal for a Directive related to the harmonisation of legislation in the field of both direct and indirect taxation and that the act should therefore be adopted on the basis of Articles 93 and 94 of the Treaty, consulted the European Parliament by letter dated 12 November 2003 informing it of the Council's intention of changing the legal basis.(9) Directive 77/799/EEC should therefore be amended accordingly,HAS ADOPTED THIS DIRECTIVE:Article 1Directive 77/799/EEC is hereby amended as follows:1. Article 1(5) shall be amended as follows:(a) the wording under "in Italy" shall be replaced by the following:"il Capo del Dipartimento per le Politiche Fiscali or his authorised representatives"(b) the wording under "in Sweden" shall be replaced by the following:"Chefen för Finansdepartementet or his authorised representative"2. in Article 2(2), the following subparagraph shall be added:"In order to obtain the information sought, the requested authority or the administrative authority to which it has recourse shall proceed as though acting on its own account or at the request of another authority in its own Member State."3. Article 7(1) shall be replaced by the following:"1. All information made known to a Member State under this Directive shall be kept secret in that State in the same manner as information received under its national legislation. In any case, such information:- may be made available only to the persons directly involved in the assessment of the tax or in the administrative control of this assessment,- may be made known only in connection with judicial proceedings or administrative proceedings involving sanctions undertaken with a view to, or relating to, the making or reviewing the tax assessment and only to persons who are directly involved in such proceedings; such information may, however, be disclosed during public hearings or in judgements if the competent authority of the Member State supplying the information raises no objection at the time when it first supplies the information,- shall in no circumstances be used other than for taxation purposes or in connection with judicial proceedings or administrative proceedings involving sanctions undertaken with a view to, or in relation to, the making or reviewing of the tax assessment.In addition, Member States may provide for the information referred to in the first subparagraph to be used for assessment of other levies, duties and taxes covered by Article 2 of Directive 76/308/EEC(4)."4. Article 8 shall be amended as follows:(a) paragraph 1 shall be replaced by the following:"1. This Directive does not impose any obligation upon a Member State from which information is requested to carry out inquiries or to communicate information, if it would be contrary to its legislation or administrative practices for the competent authority of that State to conduct such inquiries or to collect the information sought."(b) paragraph 3 shall be replaced by the following:"3. The competent authority of a Member State may decline transmission of information when the Member State requesting it is unable, for reasons of fact or law, to provide the same type of information."5. the following Articles shall be inserted:"Article 8aNotification1. At the request of the competent authority of a Member State, the competent authority of another Member State shall, in accordance with the rules governing the notification of similar instruments in the requested Member State, notify the addressee of all instruments and decisions which emanate from the administrative authorities of the requesting Member State and concern the application in its territory of legislation on taxes covered by this Directive.2. Requests for notification shall indicate the subject of the instrument or decision to be notified and shall specify the name and address of the addressee, together with any other information which may facilitate identification of the addressee.3. The requested authority shall inform the requesting authority immediately of its response to the request for notification and shall notify it, in particular, of the date of notification of the decision or instrument to the addressee.Article 8bSimultaneous controls1. Where the tax situation of one or more persons liable to tax is of common or complementary interest to two or more Member States, those States may agree to conduct simultaneous controls, in their own territory, with a view to exchanging the information thus obtained, whenever they would appear to be more effective than controls conducted by one Member State alone.2. The competent authority in each Member State shall identify independently the persons liable to tax whom it intends to propose for simultaneous control. It shall notify the respective competent authorities in the other Member States concerned of the cases which, in its view, should be subject to simultaneous control. It shall give reasons for its choice, as far as possible, by providing the information which led to its decision. It shall specify the period of time during which such controls should be conducted.3. The competent authority of each Member State concerned shall decide whether it wishes to take part in the simultaneous control. On receipt of a proposal for a simultaneous control, the competent authority shall confirm its agreement or communicate its reasoned refusal to its counterpart authority.4. Each competent authority of the Member States concerned shall appoint a representative with responsibility for supervising and coordinating the control operation."Article 2Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 2005. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.Article 3This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.Article 4This Directive is addressed to the Member States.Done at Luxembourg, 21 April 2004.For the CouncilThe PresidentJ. Walsh(1) Opinion delivered on 15 January 2004 (not yet published in the Official Journal).(2) OJ C 32, 5.2.2004, p. 94.(3) OJ L 336, 27.12.1977, p. 15. Directive as last amended by Directive 2003/93/EC (OJ L 264, 15.10.2003, p. 23).(4) OJ L 73, 19.3.1976, p. 18.