Commission Delegated Decision of 29 June 2012 on investigations and fines related to the manipulation of statistics as referred to in Regulation (EU) No 1173/2011 of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (2012/678/EU)

Commission Delegated Decision

of 29 June 2012

on investigations and fines related to the manipulation of statistics as referred to in Regulation (EU) No 1173/2011 of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area

(2012/678/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area(1), and in particular Article 8(4) thereof,

Whereas:

(1) Regulation (EU) No 1173/2011 sets out a system of sanctions for enhancing the enforcement of the preventive and corrective parts of the Stability and Growth Pact in the euro area. It applies to Member States whose currency is the euro.

(2) The availability of sound fiscal data is essential for budgetary surveillance in the euro area. In order to guarantee sound and independent statistics, Member States should ensure the principle of professional independence of national statistical authorities in conformity with Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics(2), and as further set out in the European Statistics Code of Practice.

(3) Regulation (EU) No 1173/2011 empowers the Commission to survey the economic and monetary cooperation with a view to detecting and exposing manipulation of general government deficit and debt data relevant for the application of the multilateral surveillance system and the excessive deficit procedure.

(4) For that purpose, the Commission should conduct all necessary investigations to confirm the existence of misrepresentations of actual deficit and debt data, as a result of intent or serious negligence, as referred to in Article 8(1) of Regulation (EU) No 1173/2011.

(5) It is necessary to establish the detailed rules concerning the procedures for investigations, detailed criteria establishing the amount of the fine, detailed rules guaranteeing the rights of the defence, access to the file, legal representation, confidentiality, and provisions as to the timing and collection of fines.

(6) A decision by the Commission to launch investigations should be justified, and the investigations undertaken should be proportionate so as not to go beyond what is necessary to establish the possible existence of manipulation of the relevant deficit and debt data.

(7) When undertaking such investigations, the Commission should be able to conduct on-site inspections and request information from any entity to be classified in the general-government sector, whether at central, State, local or social-security level, in accordance with Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community(3), hereinafter referred to as ‘ESA 95’.

(8) In order to confirm a suspicion following serious indications of misrepresentation of the relevant deficit and debt data, the launch of an investigation should normally be preceded by a methodological visit conducted by the Commission (Eurostat) in accordance with Article 11b of Council Regulation (EC) No 479/2009 of 25 May 2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community(4).

(9) In assessing what constitutes a misrepresentation of deficit and debt data within the meaning of Regulation (EU) No 1173/2011, incorrect implementation of ESA 95 accounting rules which is not the result of either intent or serious negligence should not be considered as such. Further excluded from the application of this Decision should be revisions, including major revisions due to changes in methodology for all historical years, that are clearly and adequately explained, insignificant mistakes and cases where a doubt has been expressed by the Member State concerned and clarification has been requested from the Commission (Eurostat) in accordance with Article 10 of Regulation (EC) No 479/2009.

(10) Users of European statistics have a legitimate expectation that they are produced by statistical authorities that conduct their activities professionally and with due diligence. An unintentional act or omission should be considered a case of serious negligence if a person responsible for the production of general government deficit and debt data is in patent breach of his duty of care.

(11) For the purpose of its defence, the Member State concerned should be duly notified of the opening of as well as of the results of the Commission investigations. The results of the investigations should be communicated by means of a Commission report to be transmitted to the European Parliament and to the Council, and to be made public. The Commission (Eurostat) should keep the European Statistical System Committee and the European Statistical Governance Advisory Board appropriately informed.

(12) The rights of defence and the principle of confidentiality should be respected in accordance with the general principles of law and the case-law of the Court of Justice of the European Union. In particular, the Member State concerned should have the right to be heard by the Commission during the investigations, as well as to access the file compiled by the Commission.

(13) Recommendations to the Council to impose a fine should be based exclusively on grounds on which the Member State concerned has been able to comment.

(14) Criteria determining the amount of the fine should be established. These criteria should be used to ensure that the fine proposed is fixed at an appropriate level, making it effective, proportionate and dissuasive, based on a reference amount adapted upwards or downwards where necessary in the light of specific circumstances.

(15) This Decision should be without prejudice to the Commission (Eurostat) exercising its powers under Regulation (EC) No 479/2009.

(16) The content and form of the measures laid down in this Decision do not exceed what is necessary to achieve the objectives established in Regulation (EU) No 1173/2011, in accordance with Article 5 of the Treaty on European Union.

(17) This Decision should apply without prejudice to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(5),

HAS ADOPTED THIS DECISION:

(1)

OJ L 306, 23.11.2011, p. 1.

(2)

OJ L 87, 31.3.2009, p. 164.

(3)

OJ L 310, 30.11.1996, p. 1.

(4)

OJ L 145, 10.6.2009, p. 1.

(5)

OJ L 145, 31.5.2001, p. 43.