Council Regulation (EU) No 389/2012Show full title

CHAPTER V U.K. COMMON CONDITIONS GOVERNING ASSISTANCE

Article 23 U.K. 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 U.K. Quality of service

1. The Commission and the Member States shall ensure that the parts of the computerised system necessary for the exchange of information described in this Regulation are operational, appropriately maintained and further developed.

2. The Commission and the Member States shall conclude a service level agreement and agree a security policy for the computerised system. The service level agreement shall define the technical quality and quantity of the services to be delivered by the Commission and the Member States in order to ensure the secure functioning of all parts of the computerised system and of the electronic communication and the allocation of responsibilities for the further development of that system.

Article 25 U.K. General limits to the obligations of the requested authority

1. The requested authority shall provide the requesting authority with the information requested in accordance with this Regulation, provided that:

(a) the requesting authority has exhausted the usual sources of information which it could have used in the circumstances to obtain the information requested, without running the risk of jeopardising the achievement of the desired end; and

(b) the number and the nature of the requests for information made by the requesting authority within a specific period do not impose a disproportionate administrative burden on that requested authority.

2. This Regulation shall impose no obligation on the competent authority of a Member State to carry out enquiries or to provide information if the laws or administrative practices of that Member State do not authorise its authorities to carry out such enquiries or to collect or use such information for that Member State’s own purposes.

3. The competent authority of a Member State may refuse to provide information if the requesting Member State is unable, for legal reasons, to provide similar information.

4. The provision of information may be refused where it would lead to the disclosure of a commercial, industrial or professional secret or of a commercial process, or where its disclosure would be contrary to public policy.

5. The requested authority shall inform the requesting authority of the grounds for refusing a request for assistance. For statistical purposes, competent authorities shall, on an annual basis, inform the Commission of the categories of grounds for refusals.

6. In no case shall paragraphs 2, 3 or 4 be construed as permitting a requested authority to decline to supply information solely because that information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.

Article 26 U.K. Expenses

Member States shall waive mutually all claims for the reimbursement of expenses incurred in applying this Regulation, with the exception of claims in respect of fees paid to experts.

Article 27 U.K. Minimum amount

1. A request for assistance may be subject to a minimum threshold based upon the excise duty that is potentially due.

2. The Commission may adopt implementing acts to specify the threshold referred to in paragraph 1 of this Article.

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

Article 28 U.K. Official secrecy, data protection and use of the information communicated under this Regulation

1. Information communicated or collected by Member States pursuant to this Regulation or any information to which an official or other employee, or a contractor has had access in the course of his duties shall be covered by the obligation of official secrecy and shall enjoy the protection granted to similar information under the law of the Member State receiving that information.

2. The information referred to in paragraph 1 may be used for the following purposes:

(a) establishing the assessment base for excise duties;

(b) the collection or administrative control of excise duties;

(c) the monitoring of movements of excise goods;

(d) risk analysis in the field of excise duties;

(e) enquiries in the field of excise duties;

(f) establishing other taxes, duties and charges covered by Article 2 of Directive 2010/24/EU.

However, the competent authority of the Member State providing the information shall permit its use for other purposes in the Member State of the requesting authority, if the legislation of the Member State of the requested authority allows the information to be used for similar purposes in that Member State.

To the extent allowed by national law, and without prejudice to Article 1(2), the information referred to in paragraph 1 of this Article may be used in connection with judicial or administrative proceedings that can involve penalties initiated as a result of infringements of tax law, without prejudice to the rules governing the rights of the defendants and witnesses in such proceedings.

3. Where the requesting authority considers that information it has received from the requested authority may be useful to the competent authority of another Member State, it may forward it to that authority. It shall inform the requested authority thereof.

The requested authority may make the communication of information to another Member State subject to its prior consent.

4. All processing of personal data by Member States referred to in this Regulation shall be subject to the national provisions implementing Directive 95/46/EC.

Member States shall, for the purpose of the correct application of this Regulation, restrict the scope of the obligations and rights provided for in Article 10, Article 11(1) and Articles 12 and 21 of Directive 95/46/EC to the extent necessary to safeguard the interests referred to in point (e) of Article 13(1) of that Directive. Such restrictions shall be proportionate to the interest in question.

Article 29 U.K. Access to information under Commission authorisation

Persons duly authorised by the Commission may be provided with access to the information referred to in Article 28(4) only to the extent necessary for the care, maintenance and development of the CCN/CSI network and the operation of the central register.

Such persons shall be subject to the obligation of official secrecy. The information accessed shall be protected as personal data under Regulation (EC) No 45/2001.

Article 30 U.K. Evidential value of information obtained

Reports, statements, and any other documents or certified true copies or extracts thereof communicated by the competent authority of a Member State to the competent authority of another Member State in accordance with this Regulation may be invoked as evidence by the competent bodies of the other Member State on the same basis as similar documents provided by another authority of that other Member State.

Article 31 U.K. Obligation to cooperate

1. For the purposes of applying this Regulation, a Member State shall take all necessary measures to:

(a) ensure effective internal coordination between the authorities referred to in Articles 3 to 5;

(b) establish direct cooperation between the authorities authorised for the purposes of coordination referred to in point (a) of this paragraph;

(c) ensure the smooth operation of the information exchange system provided for in this Regulation.

2. The Commission shall communicate without delay to the competent authority of each Member State any information necessary to ensure the correct application of legislation on excise duties, which it receives and which it is able to provide.

Article 32 U.K. Relations with third countries

1. A competent authority of a Member State which receives information from a third country may pass that information on to the competent authorities of any Member State which might be interested in it and, in particular, to the competent authorities which request it, in so far as permitted by assistance arrangements with that particular third country. Such information may also be passed on to the Commission whenever it is in the interest of the Union for the purposes of this Regulation.

2. Where the third country concerned has given a legal undertaking to provide the assistance required to gather evidence of the irregular nature of transactions which appear to contravene legislation on excise duties, information obtained under this Regulation may be communicated by the competent authority of a Member State to that third country, in accordance with that Member State’s national law regarding transfers of personal data to third countries, for the purposes of the correct application of excise duties or similar taxes, duties and charges applicable in the third country with the consent of the competent authorities which supplied the information, in accordance with their national law.

Article 33 U.K. Assistance to economic operators

1. The authorities of a Member State in which a consignor of excise goods is established may grant assistance to that consignor where the latter fails to receive a report of receipt referred to in Article 24(4) of Directive 2008/118/EC, a report of export referred to in Article 25(3) of that Directive or, in the situations referred to in Article 33(1) of that Directive, a copy of the accompanying document referred to in Article 34 thereof.

Granting of such assistance shall be without prejudice to the tax obligations of the assisted consignor.

2. Where a Member State grants assistance pursuant to paragraph 1 of this Article and considers it necessary to obtain information from another Member State, it shall request such information in accordance with Article 8. The other Member State may refuse to obtain the information requested if the consignor has not exhausted all the means available to him to obtain proof that the movement of excise goods between Member States has ended.