title: Council Directive (EU) 2020/1151 of 29 July 2020 amending Directive 92/83/EEC on the harmonization of the structures of excise duties on alcohol and alcoholic beverages

text:
                  5.8.2020

                  EN

                  Official Journal of the European Union

                  L 256/1

         COUNCIL DIRECTIVE (EU) 2020/1151
         of 29 July 2020
         amending Directive 92/83/EEC on the harmonization of the structures of excise duties on alcohol and alcoholic beverages
         THE COUNCIL OF THE EUROPEAN UNION,
         Having regard to the Treaty on the Functioning of the European Union, and in particular Article 113 thereof,
         Having regard to the proposal from the European Commission,
         After transmission of the draft legislative act to the national parliaments,
         Having regard to the opinion of the European Parliament (1),
         Having regard to the opinion of the European Economic and Social Committee (2),
         Acting in accordance with a special legislative procedure,
         Whereas:

                     (1)

                     Some provisions of Council Directive 92/83/EEC (3) are outdated and unclear and result in unnecessarily burdensome administrative procedures for both tax administrations and economic operators. The costs for economic operators of complying with those procedures have the effect of restricting the participation of small and medium-sized enterprises in trade in alcohol and alcoholic beverages in the internal market. Furthermore, references to Union legislation that is no longer in force need to be updated.

                     (2)

                     In order to ensure the uniform application of the conditions for fixing excise duty on beer, it is necessary to lay down conditions for measuring the degree Plato. More particularly, as regards measuring the degree Plato for sweetened or flavoured beer, it is important to specify that the ingredients of the beer that have been added after fermentation are also to be taken into account for the purpose of measuring the degree Plato. In view of practical difficulties linked to the identification and measurement of the dry extract of the original wort of the finished product, such specification is necessary and justified by the need to provide a harmonised approach that would ensure the correct and straightforward application of those rules by taxable persons concerned and by tax administrations as well as the effectiveness of fiscal supervision against risks of evasion, avoidance or abuse.

                     (3)

                     In order to ensure a smooth transition to a harmonised methodology for measuring the degree Plato of beer, it is appropriate to allow Member States which, on 29 July 2020, do not take ingredients of the beer that have been added after fermentation into account for the purposes of measuring the degree Plato, to continue to use the currently applied methodology for a transitional period of time.

                     (4)

                     The alcoholic strength of beer to which reduced rates for low-strength beer may be applied is in general too low to provide any tangible incentive for brewers to be innovative and create new low-strength products. In order to encourage the development of low-strength beer, the threshold for low-strength alcohol rates should be increased.

                     (5)

                     Member States may apply reduced rates to beer and ethyl alcohol produced in small volumes by independent small producers. In order to avoid other alcoholic beverages being treated differently from beer and ethyl alcohol, Member States should also have the power to apply reduced rates to other alcoholic beverages produced in small volumes by independent small producers. Member States should be able to limit the application of reduced rates to intermediate products and other fermented beverages, taking into account various criteria, such as the alcoholic strength of the finished product or the quantity and type of raw materials used to produce it.

                     (6)

                     In order to facilitate the recognition of their status as independent small producers in all Member States, for the purposes of the application of the reduced excise duty rates, implementing powers should be conferred on the Commission in respect of laying down the form for a uniform certificate confirming the annual production of the independent small producer and its compliance with the criteria laid down in Directive 92/83/EEC. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (4). Although certification of independent small producers by the Member State in which the independent small producer is established is desirable, it is appropriate to reduce the administrative burden by permitting self-certification by the independent small producer. The Member State in which the independent small producer is established should be required to lay down conditions to ensure the correct and straightforward application of such provisions and to prevent any evasion, avoidance or abuse. Member States should grant the reduced excise duty rates on the basis of the certificate issued by other Member States, except in duly justified circumstances, for example risk of evasion, avoidance or abuse. Member States that apply higher thresholds for small producers should have to apply the same thresholds for producers from other Member States.

                     (7)

                     In view of the specific situation of the wine sector in the Republic of Malta, that Member State should be allowed to apply a higher threshold in connection with the reduced rates mechanism provided for in this Directive to independent small wine producers.

                     (8)

                     Member States should be authorised to apply a reduced rate to ethyl alcohol produced in fruit growers’ distilleries from fruit (such as apples, pears, grape marc and berries).

                     (9)

                     In the case of beer, wine and other fermented beverages Directive 92/83/EEC permits Member States to exempt from excise duty home-made products which are not produced for commercial purposes. However, Directive 92/83/EEC does not allow such optional exemption for ethyl alcohol produced from fruits (such as apples, pears, grape marc and berries) for private consumption. As several Member States have a long-standing tradition of such products, Member States should have an option to apply reduced rates or exemptions for ethyl alcohol products, of a regional and traditional nature, which are not produced for commercial purposes. It is therefore appropriate to provide an option that Member States should be able, under strict conditions, to exempt from excise duty or apply reduced rates of excise duty to a limited volume of fruit spirits produced from fruits (such as apples, pears, grape marc and berries) owned, grown and supplied by a private individual from a plot of land to which that private individual holds a title. Member States applying such reduced rates or exemptions should be required to take the necessary measures to prevent any evasion, avoidance or abuse. Those measures should cover, for example, the registration of private individuals that produce such beverages, the registration of distilling devices including their size and location, the reporting of production volume and other control measures ensuring compliance with the conditions for applying reduced rates or exemptions. Those Member States should also have adequate requirements and procedures in place to ensure the control of production and consumption and the prevention of cross-border effects and sale. Member States should also lay down rules on penalties applicable to infringements of such national provisions and ensure that those penalties are implemented. While the choice of penalties remains within the discretion of Member States, the penalties provided for should be effective, proportionate and dissuasive.

                     (10)

                     Given that the reduced rates or exemptions from excise duties of home-made beverages should not be applied by a Member State in addition to the reduced rates for ethyl alcohol produced by small fruit growers’ distilleries and in view of the country-specific traditions and related arrangements regarding small fruit growers’ distilleries in the Republic of Bulgaria, once that Member State has exercised the available option concerning fruit spirits distilled for fruit growers’ households by small fruit growers’ distilleries, such option should continue to be applicable to the Republic of Bulgaria to the exclusion of any other option to apply reduced rates or exemptions.

                     (11)

                     It is appropriate to update the references to the codes of the combined nomenclature used to describe alcohol products.

                     (12)

                     Member States should be permitted, under a number of conditions, to exempt from harmonised excise duty the products covered by Directive 92/83/EEC, when such products are used in the manufacture of food supplements.

                     (13)

                     It is appropriate to update Directive 92/83/EEC as regards the application of the reduced rates to certain products that are distilled in the Hellenic Republic in traditional discontinuous copper stills and in simple traditional distilling devices.

                     (14)

                     In order to reduce the burden of compliance on economic operators and to increase legal certainty, the conditions for applying the exemptions for any type of denatured alcohol should be revised.

                     (15)

                     In order to ensure the uniform application of the exemption for completely denatured alcohol, it is necessary to further clarify the conditions for the mutual recognition of completely denatured alcohol. Member States should exempt from excise duty completely denatured alcohol which was completely denatured in another Member State, in accordance with the method authorised by that other Member State. In order to increase legal certainty, it is also necessary to clarify the procedures for the notification of changes to the requirements for the complete denaturing of alcohol.

                     (16)

                     In order to lay down the procedures for the assessment of Member States’ requirements for the complete denaturing of alcohol, implementing powers should be conferred on the Commission in respect of accepting or rejecting the requirements for the complete denaturing of alcohol notified by Member States. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

                     (17)

                     In order to ensure the uniform application of the exemption for partially denatured alcohol, it is necessary to clarify the conditions for the mutual recognition of partially denatured alcohol, and to provide that maintenance and cleaning of the manufacturing equipment is part of the manufacturing process and that the partially denatured alcohol used for the respective manufacturing process is therefore covered by that exemption. In order to reduce the fraudulent use of that exemption, it is necessary to lay down further conditions for its application.

                     (18)

                     The exemptions for the United Kingdom laid down in respect of two specific alcoholic beverages reflected exemptions provided for in the national legislation of the United Kingdom. As those exemptions from the harmonised excise duty were repealed in the legislation of the United Kingdom, they are no longer relevant and should be abolished at Union level.

                     (19)

                     Since the objectives of this Directive, namely to reduce the burden of compliance on economic operators and the administrative burden on tax administrations, cannot be sufficiently achieved by the Member States but can rather, by reason of the effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. 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.

                     (20)

                     Directive 92/83/EEC should therefore be amended accordingly,

               HAS ADOPTED THIS DIRECTIVE:

            Article 1
            Directive 92/83/EEC is amended as follows:

                        (1)

                        in Article 3(1), the following subparagraphs are added:
                        ‘All the ingredients of the beer, including those added after the completion of fermentation, shall be taken into account for the purposes of measuring the degree Plato.
                        By way of derogation from the second subparagraph, Member States that, on 29 July 2020, do not take ingredients of the beer that have been added after fermentation into account for the purposes of measuring the degree Plato, may continue to do so until 31 December 2030.’;

                        (2)

                        in Article 5, paragraph 1 is replaced by the following:

                           ‘1.   Member States may apply reduced rates, which may fall below the minimum rate, for beer with an actual alcoholic strength by volume not exceeding 3,5 % vol.’;

                        (3)

                        in Article 8, point 2, the introductory wording is replaced by the following:

                                    ‘2.

                                    The term “sparkling wine” covers all products falling within CN codes 2204 10, 2204 21 06, 2204 21 07, 2204 21 08, 2204 21 09, 2204 29 10 and 2205 which:’;

                        (4)

                        the following Article is inserted:

                           ‘Article 9a

                              1.   Member States may apply reduced rates of duty to wine produced by independent small wine producers within the following limits:

                                          —

                                          the reduced rates shall not be applied to undertakings producing on average more than 1 000 hl or, in the case of the Republic of Malta, on average more than 20 000 hl of wine per year,

                                          —

                                          the reduced rates shall not be set more than 50 % below the standard national rate of excise duty.

                              2.   For the purposes of the reduced rates the term “independent small wine producer” shall mean a wine producer which is legally and economically independent of any other wine producer, which uses premises situated physically apart from those of any other wine producer and does not operate under licence. However, where two or more small wine producers cooperate, and their combined annual production does not exceed 1 000 hl or 20 000 hl, as appropriate, those wine producers may be treated as a single independent small wine producer.

                              3.   Member States shall ensure that any reduced rates they may introduce apply equally to wine delivered into their territory from independent small wine producers situated in other Member States. In particular they shall ensure that no individual delivery from another Member State ever bears more duty than their exact national equivalent.’;

                        (5)

                        in Article 12, point 2, the introductory wording is replaced by the following:

                                    ‘2.

                                    The term “other sparkling fermented beverages” covers all products falling within CN codes 2206 00 31 and 2206 00 39 as well as products falling within CN codes 2204 10, 2204 21 06, 2204 21 07, 2204 21 08, 2204 21 09, 2204 29 10 and 2205 not mentioned in Article 8 which:’;

                        (6)

                        in Article 13, paragraph 2 is replaced by the following:

                           ‘2.   Except as provided in paragraph 3 of this Article and in Article 13a, Member States shall levy the same rate of excise duty on all products chargeable with the duty on other still fermented beverages. Similarly, they shall levy the same rate of excise duty on all products chargeable with the duty on other sparkling fermented beverages. They may apply the same rate of excise duty to both other still fermented beverages and other sparkling fermented beverages.’;

                        (7)

                        the following Article is inserted:

                           ‘Article 13a

                              1.   Member States may apply reduced rates of duty, which may be differentiated in accordance with the annual production of the producers concerned, to other fermented beverages made by independent small producers within the following limits:

                                          —

                                          the reduced rates shall not be applied to undertakings producing more than a total of 15 000 hl of such beverages per year,

                                          —

                                          the reduced rates shall not be set more than 50 % below the standard national rate of excise duty for other fermented beverages.

                              2.   For the purposes of this Article, the other fermented beverages must be obtained from the fermentation of fruits, berries, vegetables, a solution of honey in water or from the fermentation of the fresh juice or concentrated juice obtained from the above. Member States shall not permit the addition of any other alcohol or alcoholic beverage for the purpose of production of other fermented beverages. For the purposes of this Article, the addition of alcohol used to dilute or dissolve flavourings in the dose strictly necessary to the extent that the alcoholic strength does not increase by more than 1,2 % vol. shall not be considered as the addition of alcohol for the purpose of production of other fermented beverages. The addition of such flavourings shall not significantly alter the character of the original product.

                              3.   Member States may limit the application of this Article to certain types of other fermented beverages.

                              4.   For the purposes of this Article, the term “independent small producer” shall mean a producer of other fermented beverages which is legally and economically independent of any other producer of other fermented beverages, which uses premises situated physically apart from those of any other producers and which does not operate under licence. However, where two or more small producers cooperate, and their combined annual production does not exceed 15 000 hl, those producers may be treated as a single independent small producer.

                              5.   Member States shall ensure that any reduced rates they introduce apply equally to other fermented beverages delivered into their territory from independent small producers situated in other Member States. In particular they shall ensure that no individual delivery from another Member State ever bears more duty than its exact national equivalent.’;

                        (8)

                        Article 15 is replaced by the following:

                           ‘Article 15
                           For the application of Directive 92/84/EEC and Council Directive 2008/118/EC (*), references to “wine” shall be deemed to apply equally to other fermented beverages as defined in this section.

                           (*)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ L 9, 14.1.2009, p. 12).’;"

                        (9)

                        in Article 18(4), the first subparagraph is replaced by the following:

                           ‘4.   Member States may apply a single reduced rate of duty to intermediate products which are defined in Annex VII, Part II, to Regulation (EU) No 1308/2013 of the European Parliament and of the Council (*).

                           (*)  Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).’;"

                        (10)

                        the following Article is inserted:

                           ‘Article 18a

                              1.   Member States may apply reduced rates of duty, which may be differentiated in accordance with the annual production of the producers concerned, to intermediate products made by independent small producers within the following limits:

                                          —

                                          the reduced rates shall not be applied to undertakings producing more than a total of 250 hl of such beverages per year,

                                          —

                                          the reduced rates, which may fall below the minimum rate, shall not be set more than 50 % below the standard national rate of intermediate products.

                              2.   Member States may limit the application of this Article to certain types of intermediate products.

                              3.   For the purposes of this Article, the term “independent small producer” shall mean a producer of intermediate products which is legally and economically independent of any other producer of intermediate products, which uses premises situated physically apart from those of any other producers and which does not operate under licence. However, where two or more small producers cooperate, and their combined annual production does not exceed 250 hl, those producers may be treated as a single independent small producer.

                              4.   Member States shall ensure that any reduced rates they introduce apply equally to other intermediate products delivered into their territory from independent small producers situated in other Member States. In particular they shall ensure that no individual delivery from another Member State ever bears more duty than its exact national equivalent.’;

                        (11)

                        Article 22 is amended as follows:

                                    (a)

                                    paragraph 6 is replaced by the following:

                                       ‘6.   The Republic of Bulgaria may apply a reduced rate of excise duty, of not less than 50 % of the standard national rate of excise duty on ethyl alcohol, to ethyl alcohol produced by fruit growers’ distilleries producing, on an annual basis, more than 10 hectolitres of ethyl alcohol from fruit supplied to them by fruit growers’ households. The application of the reduced rate shall be limited to 30 litres of fruit spirits per producing fruit growers’ household per year, destined exclusively for their personal consumption. Once this option is exercised, the Republic of Bulgaria shall not apply paragraph 8 of this Article anymore.’;

                                    (b)

                                    the following paragraph is inserted:

                                       ‘6a.   The Czech Republic and the Republic of Poland may apply a reduced rate of excise duty, of not less than 50 % of the standard national rate of excise duty on ethyl alcohol, to ethyl alcohol produced by fruit growers’ distilleries producing, on an annual basis, more than 10 hectolitres of ethyl alcohol from fruit supplied to them by fruit growers’ households. The application of the reduced rate shall be limited to 30 litres of fruit spirits per producing fruit growers’ household per year, destined exclusively for their personal consumption.’;

                                    (c)

                                    the following paragraph is added:

                                       ‘8.   Subject to such conditions as they shall lay down to ensure the straightforward application of this paragraph, Member States may exempt from excise duty, or apply reduced rates of excise to ethyl alcohol that is consumed by a private individual, the members of his family or his guests, provided that no sale is involved, and which is:

                                                   (a)

                                                   produced by that private individual from fruits owned, grown and supplied by that private individual from a plot of land to which that private individual holds a title, using simple, small distilling device registered with the competent authority of the Member State concerned;
                                                   and/or

                                                   (b)

                                                   produced for that private individual in distilleries authorised by the competent authority of the Member State concerned, from fruits owned, grown and supplied by that private individual from a plot of land to which that private individual holds a title.

                                             Member States shall limit the application of the exemption or of the reduced rates to not more than 50 litres of fruit spirits per producing fruit grower’s household per year.
                                       Member States that apply such exemption or reduced rates of excise shall:

                                                   (a)

                                                   lay down conditions for the purpose of preventing any evasion, avoidance or abuse;

                                                   (b)

                                                   have adequate requirements and procedures in place to ensure the control of production and consumption, to prevent cross-border effects and sale; and

                                                   (c)

                                                   lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Article and take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

                                             Member States shall not apply these provisions in addition to the provisions of paragraph 6, 6a or 7.’;

                        (12)

                        Article 23 is replaced by the following:

                           ‘Article 23

                              1.   The French Republic may apply a reduced rate, which may fall below the minimum rate but not be set more than 50 % below the standard national rate of duty on ethyl alcohol, to rum as defined in point 1 of Annex II to Regulation (EC) No 110/2008 of the European Parliament and of the Council (*) and produced from sugar cane harvested in the place of manufacture as set out in point (13) of Annex I to that Regulation, having a content of volatile substances other than ethyl and methyl alcohol equal to or exceeding 225 grams per hectolitre of pure alcohol, and an actual alcoholic strength by volume equal to or exceeding 40 % vol.

                              2.   The Hellenic Republic may apply a reduced rate, which may fall below the minimum rate:

                                          (a)

                                          but not be set more than 50 % below the standard national rate of duty on ethyl alcohol, in respect of distilled anis drinks as defined in point 29 of Annex II to Regulation (EC) No 110/2008, which are colourless and have a sugar content of 50 grams or less per litre and the final product is composed at least in the percentage provided for in the said provision, of alcohol flavoured by distillation in traditional discontinuous copper stills with a capacity of up to 1 000 litres and those grape marc spirit drinks as defined in point 6 of Annex II to Regulation (EC) No 110/2008, which are distilled in traditional discontinuous stills;

                                          (b)

                                          but not be set more than 85 % below the standard national rate of duty on ethyl alcohol, in respect of ethyl alcohol from fruits supplied from the household of the producer, which are distilled in simple copper traditional distilling devices with a capacity of up to 130 litres or in earthen traditional distilling devices with a capacity of up to 40 litres, in both cases operating up to a maximum of eight days per year and producing a maximum of five hectolitres of pure alcohol per year.

                           (*)  Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 (OJ L 39, 13.2.2008, p. 16).’;"

                        (13)

                        in Section VI, the following Article is inserted:

                           ‘Article 23a

                              1.   Subject to such conditions as they shall lay down to ensure the straightforward application of Articles 4, 9a, 13a, 18a and Article 22(1), (2) and (3) of this Directive, Member States shall, upon request, provide an annual certificate to independent small producers established in their territory confirming their total annual production referred to in those Articles, as applicable, and confirming the compliance of the independent small producer with the criteria set out in Articles 4(2), 9a(2), 13a(4), 18a(3) and 22(2) of this Directive, as applicable. The administrative document for the movement of goods under Chapter IV or V of Directive 2008/118/EC shall refer to this certificate mentioned in this paragraph.

                              2.   Notwithstanding paragraph 1 of this Article, Member States may, under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of this Article and of preventing any evasion, avoidance or abuse allow independent small producers referred to in Articles 4(1), 9a(1), 13a(1), 18a(1) and 22(1) established in their territory to self-certify their compliance with the criteria set out in Articles 4(2), 9a(2), 13a(4), 18a(3) and 22(2), as applicable, and the total annual production referred to in those Articles.

                              3.   Member States shall, under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of this Article and of preventing any evasion, avoidance or abuse, recognise the certificate for producers referred to in Articles 4(1), 9a(1), 13a(1), 18a(1) and 22(1) issued by another Member State, except in duly justified circumstances.

                              4.   The Commission shall adopt implementing acts laying down:

                                          (a)

                                          the form of the certificate referred to in paragraph 1;

                                          (b)

                                          the form of the reference to that certificate in the administrative document for the movement of goods under Chapter IV or V of Directive 2008/118/EC; and

                                          (c)

                                          the requirements for the completion of the administrative document for the movement of goods under Chapter IV or V of Directive 2008/118/EC in the case of self-certification.

                                    Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28a(2).’;

                        (14)

                        Article 26 is replaced by the following:

                           ‘Article 26
                           References in this Directive to CN codes shall be to the codes of the combined nomenclature of Commission Implementing Regulation (EU) 2018/1602 (*), amending Annex I of Council Regulation (EEC) No 2658/87 (**).

                           (*)  Commission Implementing Regulation (EU) 2018/1602 of 11 October 2018 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 273, 31.10.2018, p. 1)."

                           (**)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, 7.9.1987, p. 1).’;"

                        (15)

                        Article 27 is amended as follows:

                                    (a)

                                    paragraph 1 is amended as follows:

                                                (i)

                                                points (a) and (b) are replaced by the following:

                                                            ‘(a)

                                                            when distributed in the form of alcohol which has been completely denatured in accordance with the requirements of the Member State where it has been released for consumption, where such requirements having been duly notified in writing and authorised in accordance with paragraphs 3 and 4 of this Article.
                                                            Member States shall apply Chapter V of Directive 2008/118/EC;

                                                            (b)

                                                            when used as part of the manufacturing process of any product not for human consumption, provided the alcohol has been denatured in accordance with the requirements of any Member State for the given use.
                                                            That exemption shall apply when such denatured alcohol:

                                                                        —

                                                                        has been incorporated into the product not for human consumption,

                                                                  or

                                                                        —

                                                                        is used for maintenance and cleaning of the manufacturing equipment used for this particular manufacturing process.

                                                                  Member States shall apply Chapter IV of Directive 2008/118/EC to movements of denatured alcohol that has not yet been incorporated into a product that is not for human consumption;’;

                                                (ii)

                                                point (d) is replaced by the following:

                                                            ‘(d)

                                                            when used for the production of medicines referred to in Directives 2001/82/EC (*) and 2001/83/EC (**) of the European Parliament and of the Council.

                                                   (*)  Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (OJ L 311, 28.11.2001, p. 1)."

                                                   (**)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ L 311, 28.11.2001, p. 67).’;"

                                    (b)

                                    in paragraph 2, the following point is added:

                                                ‘(f)

                                                in the manufacture of food supplements defined by Directive 2002/46/EC of the European Parliament and of the Council (*) containing ethyl alcohol, if the unit packet of the food supplement released for consumption does not exceed 0,15 litres and food supplements are placed on the market pursuant to Article 10 of that Directive.

                                       (*)  Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ L 183, 12.7.2002, p. 51).’;"

                                    (c)

                                    paragraphs 3, 4 and 5 are replaced by the following:

                                       ‘3.   A Member State wishing to introduce a change to the requirements for the complete denaturing of alcohol referred to in point (a) of paragraph 1 shall notify such new requirements to the Commission in writing, together with all the relevant information about the denaturants which it intends to employ.
                                       If the Commission considers that it does not have all the necessary information, it shall contact the Member State concerned within one month of receipt and shall specify what information is required. Once the Commission has all the information it considers necessary, it shall transmit the notification to the other Member States within one month.

                                       4.   The Commission shall adopt implementing acts authorising or rejecting the requirements notified in accordance with paragraph 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28a(2).

                                       5.   If a Member State finds that a product which has been exempted pursuant to point (a) or (b) of paragraph 1 of this Article gives rise to evasion, avoidance or abuse, it may refuse to grant exemption or withdraw the relief already granted. The Member State shall notify such refusal or withdrawal forthwith to the Commission in writing, together with all the relevant information about the evasion, avoidance or abuse. If the Commission considers that it does not have all the necessary information, it shall contact the Member State concerned within one month of receipt of such information and shall specify what further information is required. Once the Commission has all the information it considers necessary, it shall transmit the notification to the other Member States within one month. A final decision shall then be taken in accordance with the examination procedure referred to in Article 28a(2) no later than four months after the transmission of the notification to the other Member States. Member States shall not be obliged to give retroactive effect to such a decision.’;

                        (16)

                        Article 28 is deleted;

                        (17)

                        in Section VIII, the following Articles are inserted:

                           ‘Article 28a

                              1.   The Commission shall be assisted by the “Committee on Excise Duty”. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

                              2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

                           Article 28b
                           Every five years the Commission shall submit a report on the implementation of this Directive to the European Parliament and to the Council. The first report shall be submitted by 31 December 2024.
                           In particular, the report shall:

                                       (a)

                                       assess the application and impact of national provisions adopted and applied pursuant to Articles 5 and 9a, Article 22(8), Article 23a and point (f) of Article 27(2);

                                       (b)

                                       take account of relevant evidence on presence of impact of the provisions adopted and applied pursuant to those Articles, such as negative cross-border effects, increase of fraud, impact on the smooth functioning of internal market and on public health; and

                                       (c)

                                       where Member States apply national provisions adopted pursuant to Article 22(8), assess the adequacy of:

                                                   —

                                                   the conditions laid down by these Member States for the purpose of preventing any evasion, avoidance or abuse, and

                                                   —

                                                   the requirements and procedures put in place by these Member States to ensure the control of production and consumption and prevention of cross-border effects.

                                 Member States shall, upon request, submit to the Commission information required to establish the report.
                           Member States that apply national provisions adopted pursuant to Article 22(8) shall, not later than three months after first year of application of such provisions, submit to the Commission all information necessary to carry out the assessment referred to in point (c) of the second paragraph of this Article.
                           The report shall be accompanied by a legislative proposal, if appropriate.’.

            Article 2

               1.   Member States shall adopt and publish, by 31 December 2021, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text thereof.
               They shall apply those measures from 1 January 2022.
               When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

               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 3
            This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

            Article 4
            This Directive is addressed to the Member States.

            Done at Brussels, 29 July 2020.

                  For the Council

                  The President

               M. ROTH

            (1)  Opinion of 24 October 2018 (not yet published in the Official Journal).

            (2)  OJ C 62, 15.2.2019, p. 108.

            (3)  Council Directive 92/83/EEC of 19 October 1992 on the harmonization of the structures of excise duties on alcohol and alcoholic beverages (OJ L 316, 31.10.1992, p. 21).

            (4)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).


title: Directive (EU) 2022/738 of the European Parliament and of the Council of 6 April 2022 amending Directive 2006/1/EC on the use of vehicles hired without drivers for the carriage of goods by road (Text with EEA relevance)

text:
                  16.5.2022

                  EN

                  Official Journal of the European Union

                  L 137/1

         DIRECTIVE (EU) 2022/738 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
         of 6 April 2022
         amending Directive 2006/1/EC on the use of vehicles hired without drivers for the carriage of goods by road
         (Text with EEA relevance)
         THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
         Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91(1) thereof,
         Having regard to the proposal from the European Commission,
         After transmission of the draft legislative act to the national parliaments,
         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 ordinary legislative procedure (3),
         Whereas:

                     (1)

                     Directive 2006/1/EC of the European Parliament and of the Council (4) provides for a minimum level of market opening as regards the use of vehicles hired without drivers for the carriage of goods by road.

                     (2)

                     The use of hired vehicles can reduce the costs of undertakings carrying goods on their own account or for hire or reward, and at the same time can increase their operational flexibility. It can therefore contribute to an increase in the productivity and competitiveness of the undertakings concerned. Moreover, as hired vehicles tend to be newer than the average fleet, they are on average also safer and less polluting.

                     (3)

                     Directive 2006/1/EC does not enable undertakings to benefit fully from the advantages of using hired vehicles. The Directive allows Member States to restrict the use by undertakings established on their respective territories of hired vehicles with a total permissible laden weight of more than 6 tonnes for own-account transport operations. Moreover, Member States are not required to allow the use of a hired vehicle on their respective territories if the vehicle has been registered or put into circulation in compliance with the laws of a Member State other than the Member State of establishment of the undertaking hiring it.

                     (4)

                     In order to enable undertakings to benefit to a greater extent from the advantages of using hired vehicles, it should be possible for them to use vehicles hired in any Member State, not only in the Member State of establishment. Such a possibility would, in particular, make it easier for them to meet short-term, seasonal or temporary peaks in demand or to replace defective or damaged vehicles, while ensuring compliance with the necessary safety requirements and ensuring adequate working conditions for drivers.

                     (5)

                     Member States should not be allowed to restrict the use on their respective territories of a vehicle hired by an undertaking established on the territory of another Member State if the vehicle has been registered or put into circulation in accordance with the applicable laws, safety requirements and other mandatory standards of a Member State and, if it is a vehicle requiring a certified true copy of the Community licence in accordance with Regulation (EC) No 1072/2009 of the European Parliament and of the Council (5), if it has been authorised to be used by the Member State of establishment of the undertaking by means of such certified true copy.

                     (6)

                     In order to simplify the provision of relevant evidence, Member States should also recognise documents in electronic form as a means of proving compliance with Directive 2006/1/EC.

                     (7)

                     The level of road transport taxation still differs considerably throughout the Union. Therefore, certain restrictions, which also indirectly affect the freedom to provide vehicle hire services, remain justified in order to avoid fiscal distortions. Consequently, Member States should have the option to limit the length of time undertakings established on their respective territories may use a hired vehicle registered or put into circulation in another Member State. Given that this Directive does not harmonise national vehicle taxation and that vehicle registration rules are connected with vehicle taxation, Member States should have the option to require the registration of the hired vehicle, provided that the vehicle be allowed to circulate for at least 30 days before such a requirement becomes applicable. Member States should also be allowed to limit the number of such vehicles being hired by an undertaking established on their respective territories. That limit should not be lower than a certain share of the number of vehicles at the disposal of the undertaking, calculated exclusive of vehicles hired in another Member State and not registered in the Member State of establishment of the undertaking.

                     (8)

                     In order to improve the enforcement by a Member State of restrictions on the use by an undertaking established on its territory of hired vehicles that are registered or put into circulation in compliance with the laws of another Member State, the Member State of establishment should be allowed to require that the duration of the contract of hire does not exceed the length of the time allowed for using the vehicle concerned. It is possible to limit the validity of certified true copies of the Community licence issued in accordance with Regulation (EC) No 1072/2009 to the period corresponding to the duration of the contract of hire. It is also possible to indicate the registration number of the hired vehicle on those certified true copies.

                     (9)

                     The circulation of hired vehicles should not hamper the monitoring and control of the legality of transport operations carried out by undertakings in Member States other than their Member State of establishment. In accordance with Regulation (EC) No 1071/2009 of the European Parliament and of the Council (6), national electronic registers are to contain the registration numbers of vehicles at the disposal of a transport undertaking. That should also include any vehicles hired in a Member State other than the Member State of establishment of the undertaking. Regulation (EC) No 1071/2009 also provides for the accessibility of data contained in national electronic registers by the competent authorities of other Member States. The national electronic registers should allow for targeted searches in respect of vehicles with registration numbers issued by Member States other than the Member State of establishment.

                     (10)

                     In order to ensure uniform compliance with the obligation to enter the registration number of a hired vehicle used by an undertaking which engages in the carriage of goods by road for hire or reward in the national electronic registers, implementing powers should be conferred on the Commission relating to the minimum requirements for the data to be entered in the national electronic registers. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (7).

                     (11)

                     In order to allow own-account transport operations to be conducted more efficiently, Member States should no longer be allowed to restrict the possibility of using hired vehicles for such operations. However, to avoid potential fiscal issues, the possibility of restricting the use of hired vehicles for own-account transport operations should be maintained for vehicles registered outside the Member State of establishment of the undertaking using them.

                     (12)

                     The Commission should monitor the implementation and effects of Directive 2006/1/EC and draw up a report at the latest 4 years after the date of transposition of this Directive. That report should take due account of the impact of this Directive on road safety, on the environment by reference to changes in the age and type composition of the vehicle fleets, and on tax revenues, with particular regard to the justification of restrictions provided for in this Directive. The report should also assess whether the implementation of this Directive has entailed difficulties in relation to enforcement, including the enforcement of cabotage rules. The Commission should consider the need for future action in that area in light of that report.

                     (13)

                     Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of the cross-border nature of road transport and of the issues this Directive is intended to address, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. 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.

                     (14)

                     Directive 2006/1/EC should therefore be amended accordingly,

               HAVE ADOPTED THIS DIRECTIVE:

            Article 1
            Directive 2006/1/EC is amended as follows:

                        (1)

                        Article 2 is amended as follows:

                                    (a)

                                    paragraph 1 is amended as follows:

                                                (i)

                                                the introductory part is replaced by the following:

                                                   ‘1.   Each Member State shall allow the use within its territory of vehicles hired by undertakings established on the territory of another Member State provided that:’;

                                                (ii)

                                                point (a) is replaced by the following:

                                                            ‘(a)

                                                            the vehicle is registered or put into circulation in compliance with the laws of any Member State and, if applicable, used in compliance with Regulations (EC) No 1071/2009 (*1) and (EC) No 1072/2009 (*2) of the European Parliament and of the Council;

                                                   (*1)  Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51)."

                                                   (*2)  Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ L 300, 14.11.2009, p. 72).’;"

                                    (b)

                                    in paragraph 2, the introductory part is replaced by the following:

                                       ‘2.   Proof of compliance with the conditions referred to in paragraph 1, points (a) to (d), shall be provided by presentation of the following documents in paper or in electronic form, which shall be on board the vehicle:’;

                        (2)

                        Article 3 is replaced by the following:

                           ‘Article 3

                              1.   Member States shall take the necessary measures to ensure that undertakings established on their respective territories may use hired vehicles for the carriage of goods by road under the same conditions as vehicles owned by them, provided that the conditions laid down in Article 2 are satisfied.

                              2.   Where a hired vehicle is registered or put into circulation in compliance with the laws of another Member State, the Member State of establishment of the road transport undertaking may:

                                          (a)

                                          limit the time of use of the hired vehicle on its territory provided that the use of the hired vehicle by the same road transport undertaking is allowed for a period of at least two consecutive months in any given calendar year; in that case the Member State may require that the contract of hire last no longer than the time limit set by that Member State;

                                          (b)

                                          require that the hired vehicle be registered in accordance with its national registration rules after a period of no less than 30 days; in that case the Member State may require that the contract of hire last no longer than the period of circulation prior to the registration requirement;

                                          (c)

                                          limit the number of hired vehicles that may be used by an undertaking provided that the minimum number of vehicles allowed shall be at least 25 % of the goods vehicle fleet which is at the disposal of the undertaking pursuant to Article 5(1), point (g), of Regulation (EC) No 1071/2009 either on 31 December of the year preceding the use of the hired vehicle or on the day when the undertaking begins to use the hired vehicle, as determined by the Member State; however, in the case of an undertaking which has an overall fleet of more than one and less than four vehicles, it shall be allowed to use at least one such vehicle; the minimum number in accordance with this point refers to the goods vehicle fleet at the disposal of the undertaking on the basis of the vehicles registered or put into circulation in conformity with the laws of that Member State;

                                          (d)

                                          limit the use of such vehicles for own-account transport operations.’;

                        (3)

                        the following Article is inserted:

                           ‘Article 3a

                              1.   Member States shall take the necessary measures to ensure that the number of a hired vehicle used by an undertaking which engages in the carriage of goods by road for hire or reward is entered in the national electronic register referred to in Article 16 of Regulation (EC) No 1071/2009.

                              2.   The competent authorities of the Member States shall cooperate closely and shall swiftly provide one another with mutual assistance and with any relevant information in order to facilitate the implementation and enforcement of this Directive. To that end, each Member State shall designate a national contact point responsible for the exchange of information with the other Member States.

                              3.   The exchange of the information referred to in paragraph 1 shall take place through the European Registers of Road Transport Undertakings (ERRU) as specified by Commission Implementing Regulation (EU) 2016/480 (*3).

                              4.   Member States shall ensure that the information provided pursuant to this Article is used only in respect of the matters for which it was requested. Any processing of personal data shall be carried out solely for the purposes of complying with this Directive and shall comply with Regulation (EU) 2016/679 of the European Parliament and of the Council (*4).

                              5.   Mutual administrative cooperation and assistance shall be provided free of charge.

                              6.   A request for information shall not preclude the competent authorities from taking measures in accordance with the relevant Union and national law to investigate and prevent alleged breaches of rules resulting from the transposition of this Directive.

                              7.   Member States shall take the necessary measures to ensure that the processing of the data referred to in paragraph 1 of this Article complies with the requirements for the information referred to in Article 16(2), point (g), of Regulation (EC) No 1071/2009 as specified in Article 16(2), third and fifth subparagraphs, and in Article 16(3) and (4) of that Regulation.

                              8.   No later than 14 months after the adoption of an implementing act establishing a common formula for calculating the risk rating as referred to in Article 9(1), second subparagraph, of Directive 2006/22/EC of the European Parliament and of the Council (*5), the Commission shall adopt implementing acts, laying down the minimum requirements concerning the data to be entered in the national electronic registers in order to enable the interconnection of registers, and specifying the functionalities necessary in order to make that information accessible to the competent authorities during roadside checks. Those minimum requirements and functionalities shall comply with the requirements and functionalities established pursuant to Article 16(6) of Regulation (EC) No 1071/2009. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 5b(2) of this Directive.

                              9.   Member States shall ensure that the data referred to in paragraph 1 is accessible to the competent authorities during roadside checks.

                           (*3)  Commission Implementing Regulation (EU) 2016/480 of 1 April 2016 establishing common rules concerning the interconnection of national electronic registers on road transport undertakings and repealing Regulation (EU) No 1213/2010 (OJ L 87, 2.4.2016, p. 4)."

                           (*4)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1)."

                           (*5)  Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Regulations (EC) No 561/2006 and (EU) No 165/2014 and Directive 2002/15/EC as regards social legislation relating to road transport activities, and repealing Council Directive 88/599/EEC (OJ L 102, 11.4.2006, p. 35).’;"

                        (4)

                        The following Articles are inserted:

                           ‘Article 5a
                           By 7 August 2027, the Commission shall submit a report to the European Parliament and the Council on the implementation and effects of this Directive. That report shall include information on the use of vehicles hired in a Member State other than the Member State of establishment of the undertaking hiring the vehicle. The report shall pay particular attention to the impact on road safety, on the environment, on tax revenues and on the enforcement of the cabotage rules in accordance with Regulation (EC) No 1072/2009. On the basis of that report, the Commission shall assess whether it is necessary to propose additional measures.

                           Article 5b

                              1.   The Commission shall be assisted by the Committee established by Article 42(1) of Regulation (EU) No 165/2014 of the European Parliament and of the Council (*6). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (*7).

                              2.   Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

                           (*6)  Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation (EC) No 561/2006 of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport (OJ L 60, 28.2.2014, p. 1)."

                           (*7)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).’."

            Article 2

               1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 6 August 2023. They shall immediately inform the Commission thereof.
               When Member States adopt those 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 measures of national law which they adopt in the field covered by this Directive.

            Article 3
            This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

            Article 4
            This Directive is addressed to the Member States.

            Done at Strasbourg, 6 April 2022.

                  For the European Parliament

                  The President

               R. METSOLA

                  For the Council

                  The President

               C. BEAUNE

            (1)  OJ C 129, 11.4.2018, p. 71.

            (2)  OJ C 176, 23.5.2018, p. 57.

            (3)  Position of the European Parliament of 15 January 2019 (OJ C 411, 27.11.2020, p. 258) and position of the Council at first reading of 20 December 2021 (not yet published in the Official Journal). Position of the European Parliament of 5 April 2022 (not yet published in the Official Journal).

            (4)  Directive 2006/1/EC of the European Parliament and of the Council of 18 January 2006 on the use of vehicles hired without drivers for the carriage of goods by road (OJ L 33, 4.2.2006, p. 82).

            (5)  Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ L 300, 14.11.2009, p. 72).

            (6)  Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51).

            (7)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).