Council Regulation (EU) No 389/2012 of 2 May 2012 on administrative cooperation in the field of excise duties and repealing Regulation (EC) No 2073/2004

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

Article 2

Definitions

For the purposes of this Regulation:

(1) ‘competent authority’ means the authority designated in accordance with Article 3(1);

(2) ‘requesting authority’ means the central excise liaison office or any liaison department or competent official of a Member State who makes a request for assistance on behalf of the competent authority;

(3) ‘requested authority’ means the central excise liaison office or any liaison department or competent official of a Member State who receives a request for assistance on behalf of the competent authority;

(4) ‘excise office’ means any office at which formalities laid down by excise rules may be completed;

(5) ‘event driven automatic exchange’ means the systematic communication, without prior request, of information with a predefined structure concerning an event of interest as and when that information becomes available, other than the exchange of information provided for in Article 21 of Directive 2008/118/EC;

(6) ‘regular automatic exchange’ means the systematic communication, without prior request, of information with a predefined structure at pre-established regular intervals;

(7) ‘spontaneous exchange’ means the communication of information without prior request to another Member State, not covered by points (5) or (6) or by Article 21 of Directive 2008/118/EC;

(8) ‘computerised system’ means the computerised system for the movement and surveillance of excise goods established by Decision No 1152/2003/EC of the European Parliament and of the Council of 16 June 2003 on computerising the movement and surveillance of excisable products (¹);

(9) ‘person’ means a natural person, a legal person, any association of persons which is not a legal person but which is recognised under the law of the Union or national law as having the capacity to perform legal acts and any other legal arrangement of whatever nature and form, regardless of whether it has legal personality;

(10) ‘economic operator’ means a person who, in the course of his business, is involved in activities covered by legislation on excise duties, whether authorised to do so or not;

(11) ‘by electronic means’ means using electronic equipment of any kind capable of processing, including transmission and compression, and storage of data, and includes the computerised system defined in point (8);

(12) ‘excise number’ means the identification number assigned by Member States for excise purposes to records of the economic operators and premises referred to in points (a) and (b) of Article 19(1);

(13) ‘a movement of excise goods within the Union’ means the movement between two or more Member States of excise goods under suspension of excise duty within the meaning of Chapter IV of Directive 2008/118/EC or of excise goods after release for consumption within the meaning of Chapter V, Section 2, of Directive 2008/118/EC;

(14) ‘administrative enquiry’ means any control, check or other action taken by the authorities competent for the application of the legislation on excise duties in the performance of their duties with a view to ensuring the correct application of that legislation;

(15) ‘CCN/CSI network’ means the common platform based on the common communication network (CCN) and common system interface (CSI), developed by the Union to ensure all transmissions by electronic means between the competent authorities in the area of customs and taxation;

(16) ‘excise duties’ mean the duties referred to in Article 1(1) of Directive 2008/118/EC;

(17) ‘mutual administrative assistance document’ means a document established within the computerised system and used for the exchange of information under Article 8, 15 or 16 and used for follow-up under Article 8 or 16;

(18) ‘fall-back mutual administrative assistance document’ means a document in a paper form used for the exchange of information under Article 8 or 15, in the event that the computerised system is not available;

(19) ‘simultaneous control’ means coordinated checks in regard to legislation on excise duties on the situation of an economic operator or related persons, organised by two or more participating Member States with common or complementary interests.

Article 3

Competent authorities

Croatia shall inform the Commission by 1 July 2013 of its competent authority.

Article 4

Central excise liaison offices and liaison departments

The central excise liaison office may also be designated as responsible for contacts with the Commission for the purposes of this Regulation.

The central excise liaison office shall ensure that the list of these departments is kept up to date and made available to the central excise liaison offices of the other Member States concerned.

Article 5

Competent officials

The competent authority may limit the scope of such designation.

The central excise liaison office shall be responsible for keeping the list of competent officials up to date and making it available to the central excise liaison offices of the other Member States concerned.

Article 6

Obligations of the central excise liaison office, liaison departments and competent officials

The central excise liaison office shall have principal responsibility for exchanges of information on movements of excise goods between Member States and in particular, it shall have principal responsibility for ensuring:

(a) the exchange of information under Article 8;

(b) the forwarding of notifications of administrative decisions and measures requested by Member States under Article 14;

(c) mandatory exchanges of information under Article 15;

(d) optional spontaneous exchanges of information under Article 16;

(e) provision of feedback on the follow-up actions under Article 8(5) and Article 16(2);

(f) the exchange of information stored in the electronic database provided for in Article 19;

(g) the provision of statistical and other information under Article 34.

Article 7

Information or documents obtained with the authorisation or at the request of the judicial authority

CHAPTER II

COOPERATION ON REQUEST

Article 8

General duties of the requested authority

Article 9

Form of the request and the reply

Where the computerised system is unavailable, a fall-back mutual administrative assistance document shall be used instead of the mutual administrative assistance document.

The Commission shall adopt implementing acts to determine:

(a) the structure and content of the mutual administrative assistance documents;

(b) the rules and procedures relating to the exchanges of mutual administrative assistance documents;

(c) the model, form and content of the fall-back mutual administrative assistance document;

(d) the rules and procedures relating to the use of the fall-back mutual administrative assistance document.

The Commission may also adopt implementing acts to determine the structure and content of the feedback referred to in Article 8(5).

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 35(2).

Article 10

Provision of documents

However, in the event that this is impossible or impractical, the documents shall be provided by electronic means or otherwise.

Article 11

Time limits

However, where the requested authority is already in possession of that information, the time limit shall be one month.

Article 12

Participation of officials from other Member States in administrative enquiries

Where the requested information is contained in documentation to which the officials of the requested authority have access, the officials of the requesting authority shall be given copies thereof.

Where such agreement is reached, the officials of the requesting authority may have access to the same premises and documents as the officials of the requested authority, through the intermediary of those officials and for the sole purpose of carrying out the administrative enquiry. Officials of the requesting authority shall conduct enquiries or ask questions only with the agreement and under the supervision of officials of the requested authority. They shall not exercise the powers of inspection conferred on officials of the requested authority.

Article 13

Simultaneous controls

The proposal shall:

(a) specify the case or cases proposed for simultaneous controls;

(b) individually identify each person with regard to whom such control is intended to be carried out;

(c) give reasons justifying the necessity of a common control;

(d) specify the period of time during which such controls are intended to be carried out.

Article 14

Request for notification of administrative decisions and measures

The requested authority shall not refuse to act on such request on account of the content of the decision or measure to be notified.

CHAPTER III

EXCHANGE OF INFORMATION WITHOUT PRIOR REQUEST

Article 15

Mandatory exchange of information

The competent authority of each Member State shall forward to the competent authorities of all other Member States concerned, without prior request and by means of regular or event-driven automatic exchange, the information necessary to ensure the correct application of legislation on excise duties, in the following cases:

(a) where an irregularity or an infringement of legislation on excise duties has occurred, or is suspected to have occurred, in another Member State;

(b) where an irregularity or an infringement of legislation on excise duties which has occurred, or is suspected to have occurred, in the territory of one Member State may have repercussions in another Member State;

(c) where there is a risk of fraud or a loss of excise duty in another Member State;

(d) where the total destruction or irretrievable loss of excise goods has occurred;

(e) where an exceptional event has occurred during a movement of excise goods within the Union, which is not provided for in Directive 2008/118/EC, and which may affect the calculation of liability to excise duty of an economic operator.

However, where the use of that document is impractical, the exchange of information may, exceptionally, be carried out in whole or in part by other means. In such cases, the message shall be accompanied by an explanation of why the use of the mutual administrative assistance document was impractical.

The Commission shall adopt implementing acts to determine:

(a) the exact categories of information that shall be exchanged under paragraph 1, which shall, in respect of natural persons, include data such as their name, surname, street name, street number, postcode, city, member state, tax or other identifier number, product code or description and other connected personal data, when available;

(b) the frequency of regular exchange and the time limits for event-driven exchange under paragraph 1 for each category of information;

(c) the structure and content of the mutual administrative assistance documents;

(d) the form and content of the fall-back mutual administrative assistance document;

(e) the rules and procedures relating to the exchanges of the documents referred to in points (c) and (d).

The Commission may also adopt implementing acts to determine the situations where the competent authorities may consider the computerised system unavailable for the purposes of paragraph 4 of this Article.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 35(2).

Article 16

Optional exchange of information

To that end, they may use the computerised system where the system is capable of processing such information.

The Commission shall adopt implementing acts to determine:

(a) the structure and content of the mutual administrative assistance documents to cover the most common types of information referred to in paragraph 1;

(b) the rules and procedures relating to the exchanges of the mutual administrative document.

The Commission may also adopt implementing acts to determine the structure and content of the feedback referred to in paragraph 2.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 35(2).

Article 17

Obligation of Member States to facilitate exchanges of information without prior request

Member States shall take the necessary administrative and organisational measures to facilitate the exchanges provided for in this Chapter.

Article 18

Limitation of obligations

Member States shall neither be obliged to impose, for the purposes of implementing this Chapter, any new obligations on persons in respect of the collection of information, nor to bear any disproportionate administrative burden.

CHAPTER IV

STORAGE AND EXCHANGE OF ELECTRONIC INFORMATION ON ECONOMIC OPERATORS

Article 19

Storage and exchange of information on authorisations of economic operators and tax warehouses

Each Member State shall maintain an electronic database containing the following registers:

(a) a register of economic operators belonging to one of the following categories: (i) authorised warehousekeepers within the meaning of point (1) of Article 4 of Directive 2008/118/EC; (ii) registered consignees within the meaning of point (9) of Article 4 of Directive 2008/118/EC; (iii) registered consignors within the meaning of point (10) of Article 4 of Directive 2008/118/EC; (iv) certified consignors within the meaning of point (12) of Article 3 of Council Directive (EU) 2020/262 (³); (v) certified consignees within the meaning of point (13) of Article 3 of Directive (EU) 2020/262;

(b) a register of premises authorised as tax warehouses within the meaning of point (11) of Article 4 of Directive 2008/118/EC.

The registers referred to in paragraph 1 shall contain the following information:

(a) the unique excise number issued by the competent authority in respect of an economic operator or premises;

(b) the name and address of the economic operator or premises;

(c) the excise product category (CAT) and/or the excise product code (EPC) of the products covered by the authorisation referred to in Annex II, code list 10, to Commission Delegated Regulation (EU) 2022/1636 (⁴);

(d) the identification of the central excise liaison office or the excise office from which further information may be obtained;

(e) the date as of which the authorisation is valid, is amended and, where applicable, ceases to be valid;

(f) for authorised warehousekeepers, the tax warehouse or the list of tax warehouses to which his authorisation applies and, if applicable under national legislation, an indication that he is authorised to omit the details of the consignee at the time of dispatch in accordance with Article 22 of Directive (EU) 2020/262, that he is authorised to split a movement in accordance with Article 23 of that Directive or that he is authorised to have excise goods moved to a place of direct delivery in accordance with Article 16(4) of that Directive, and an indication that he is acting as a certified consignor or a certified consignee in accordance with Article 35(6) and (7) of that Directive;

(g) for registered consignees, if applicable under national legislation, an indication that he is authorised to have excise goods moved to a place of direct delivery in accordance with Article 16(4) of Directive (EU) 2020/262, and an indication that he is acting as a certified consignee in accordance with Article 35(7) of that Directive;

(h) for registered consignees referred to in Article 19(3) of Directive 2008/118/EC other than those referred to point (i) of this paragraph, the content of the authorisation regarding the quantity of excise goods, the identity of the consignor in the Member State of dispatch and the period of time for which the authorisation is valid;

(i) for registered consignees referred to in Article 19(3) of Directive 2008/118/EC that have an authorisation to receive wine from consignors who benefit from the derogation provided in Article 40 of Directive 2008/118/EC, the content of the authorisation regarding the quantity of excise goods and the period of time for which the authorisation is valid. An indication of the derogation under Article 40 of 2008/118/EC shall be included in the record;

(j) for tax warehouses, the authorised warehousekeeper or list of authorised warehousekeepers for whose use the tax warehouse is authorised;

(k) for registered consignors, an indication that he is authorised to omit the details of the consignee at the time of dispatch in accordance with Article 22 of Directive (EU) 2020/262, and an indication that he is acting as a certified consignor in accordance with Article 35(6) of that Directive;

(l) for certified consignors sending excise goods only occasionally referred to in Article 35(8) of Directive (EU) 2020/262, the quantity of excise goods, the identity of the consignee in the Member State of destination and the period of time for which the temporary certification is valid;

(m) for certified consignees receiving excise goods only occasionally referred to in Article 35(8) of Directive (EU) 2020/262, the quantity of excise goods, the identity of the consignor in the Member State of dispatch and the period of time for which the temporary certification is valid.

The Commission shall operate the register as a part of the computerised system in a manner that ensures at all times a correct up-to-date view of all national registry data provided by all Member States.

The central excise liaison offices or liaison departments of Member States shall communicate the content of the national register as well as any modification thereto to the Commission in a timely manner.

Article 20

Access to and correction of information

Article 21

Data retention

Article 22

Implementation

The Commission shall adopt implementing acts:

(a) to specify the technical details concerning the automated update of the databases referred to in Article 19(1) and of the central register referred to in Article 19(4);

(b) to specify the rules and procedures concerning the access to and correction of information under Article 20(1).

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 35(2).

CHAPTER V

COMMON CONDITIONS GOVERNING ASSISTANCE

Article 23

Language regime

Requests for assistance, including requests for notifications, and attached documents may be made in any language agreed between the requested and requesting authority. An accompanying translation into the official language or one of the official languages of the Member State in which the requested authority is established, shall be required only if the requested authority provides a justification explaining the need for translation.

Article 24

Quality of service

Article 25

General limits to the obligations of the requested authority