The development of mutual assistance of eu member states for the recovery of public claims

Author:Jan Olszanowski/Wojciech Piatek
Position:PhD, University of Social Sciences and Humanities (Warsaw), Faculty in Poznan/PhD, Adam Mickiewicz University in Poznan, Law and Administration Faculty, Chair of Administrative Procedure
Pages:66-78
SUMMARY

The issue of the effective enforcement of public obligations is of the essence in case of the increasing migration of people to various directions, as well as the intensifying flow of international capital. For these reasons it was necessary to establish legal frames for the assistance between the EU member states for the recovery of public claims. The main purpose of the work was to show the development of recovery of public claims of EU member states for the recovery of public claims. First part of work shows short historical outline of European regulations concerning international mutual assistance for the recovery of public claims. The main part of work concentrates on current legal frames of forms of mutual assistance. Current EU regulations retains three forms of mutual assistance the provision of information by one member state, notification of an interested party or other persons of legal acts, and enforcement or indemnification of public claims. The most significant form of mutual assistance specified as the fundamental one is the assistance for the recovery of claims. A wider analysis of the discussed issue shows that international mutual assistance of the member states for the recovery of public claims will further deepen. Keywords: private law, recovery of public claims, enforcement of public obligations, debtor, recovery of public claims

 
CONTENT
66 JAN OLSZANOWSKI, WOJCIECH PIĄTEK
EUROPEAN UNION LAW
THE DEVELOPMENT OF MUTUAL ASSISTANCE OF EU
MEMBER STATES FOR THE RECOVERY OF PUBLIC CLAIMS
Jan OLSZANOWSKI
PhD, University of Social Sciences and Humanities (Warsaw),
Faculty in Poznan
Wojciech PI@TEK
PhD, Adam Mickiewicz University in Poznan,
Law and Administration Faculty, Chair of Administrative Procedure
Abstract
The issue of the effective enforcement of public obligations is of the essence in case of the
increasing migration of people to various directions, as well as the intensifying flow of international
capital. For these reasons it was necessary to establish legal frames for the assistance between the EU
member states for the recovery of public claims. The main purpose of the work was to show the
development of recovery of public claims of EU member states for the recovery of public claims. First
part of work shows short historical outline of European regulations concerning international mutual
assistance for the recovery of public claims. The main part of work concentrates on current legal
frames of forms of mutual assistance. Current EU regulations retains three forms of mutual
assistance the provision of information by one member state, notification of an interested party or
other persons of legal acts, and enforcement or indemnification of public claims. The most significant
form of mutual assistance specified as the fundamental one is the assistance for the recovery of
claims. A wider analysis of the discussed issue shows that international mutual assistance of the
member states for the recovery of public claims will further deepen.
Keywords: private law, recovery of public claims, enforcement of public obligations, debtor,
recovery of public claims.
1. General1
Ensuring the effectiveness of injunctions and prohibitions made by state
administrative authorities has a crucial significance for the legal order. The ideal of
E-mail: jolszanowski@swps.edu.pl.
1 The project was financed from funds of the National Science Centre on the basis of decision
DEC-2011/01/D/HS5/01526.
Law Review vol. IV, issue 2, July-December 2014, p. 66-78
The development of mutual assistance of EU member states … 67
a democratic state of law is to perform legal obligations by citizens and other
entities. This results from the nature of the state and of its law on account of its
freedom-related objectives and goals, as well as a mode of law making2.
Administration is able to effectively fulfil its tasks provided that administrative
injunctions and prohibitions are effectively performed. Therefore, the state
authorities must have means that allow them to exercise injunctions and
prohibitions straightforwardly resulting from the laws in force and administrative
acts. In the absence of such means, administration would be impossible3.
The issue of the effective enforcement of public obligations is of the essence in
case of the increasing migration of people to various directions, as well as the
intensifying flow of international capital. These phenomena are also intensified by
political and economic approaches of EU member states. Therefore, it was
necessary to establish legal frames for the assistance between the EU member
states for the recovery of public claims and consequently this fact was to deepen
the mutual assistance inside the EU as part of the common legal and economic
space4. This state-level assistance for the recovery of public claims should include
all its forms, most notably exchange of information, conducting of simultaneous
inspections, conducting of administrative procedures brought by a competent
authority of another state and presence of authorized officials in the office of the
authority which conveys information and this assistance is provided by competent
authorities of minimum two states to the extent of the broadly-defined
administrative issues5. In German this assistance is defined by two words
(Amtshilfe and Rechtshilfe) emphasizing their different meanings and, in simple
terms, the semantic difference between them is that the first word describes the
assistance between state administrative authorities, whereas the latter one refers to
the assistance between courts6. In English this assistance is described as mutual
assistance7. In French the words entraide, assistance mutuelle, coopération8 are used
interchangeably. In Polish the scientists apply the expression wzajemna pomoc
pomidzy pastwami członkowskimi or midzynarodowa współpraca 9 and in this way
they describe both the essence of this process and its name which does not have its
statutory definition.
The fundamental aim of the regulations pertaining to the international mutual
assistance to the discussed extent is to ensure that in each member state it is
2 See: Smoktunowicz, Warsaw (1995).
3 More: LeoRski (1969), Ochendowski, (2010), Skoczylas (2010).
4 See: Wettner (2005), ¥lebzak (2012).
5 See: MAczyRski (2009).
6 The indicated difference is, however, disputable in literature. More: A. Idziok (1997), Wettner
(2005).
7 More: Lao (2013).
8 More: F. Wettner (2005) and listed reference books.
9 See: D. MAczyRski (2009), Przybysz (2011), Skoczylas (2012) Cisowska-Sakrajda (2012).
68 JAN OLSZANOWSKI, WOJCIECH PIĄTEK
possible to recover claims that aroused in another member state10. The
international mutual assistance is one of the fundamental principles of the
international tax law11. Since it allows enforcement measures to be applied with
respect to the entity obliged to pay public debts, irrespective of its abode or
registered office.
2. The historical outline of European regulations concerning international
mutual assistance for the recovery of public claims
The first legal act that governed the mutual assistance of member states for the
recovery of public claims was Council Directive No 76/308/EEC of 15 March 1976
on mutual assistance for the recovery of claims resulting from operations forming
part of the system of financing the European Agricultural Guidance and Guarantee
Fund, and of agricultural levies and customs duties12. This legal act was
implemented as a consequence of the failure to enforce the claim for recovering
public claims that emerged prior to its enactment. The preamble of Directive No
76/308/EEC provided that a lack of specific regulations constituted the obstacle to
implement and function the common market and that was one of the purposes of
uniting member states13.
The intensification of the flow of capital between the member states and the
increase in migration of people resulted in the growth in the significance of the
discussed regulations. This was expressed by the intensification of works that
aimed at deepening the mutual assistance of the member states and the growth in
efficiency of the actions taken. It was stated that there was a risk that problems
with the trans-border recovery of claims may hinder the proper development of
the internal market14. Therefore, in 2008 there was executed the consolidated
version of Directive No 76/308/EEC in a form of a new Directive No 2008/55/EC
of 26 May 2008 on mutual assistance for the recovery of claims relating to certain
levies, duties, taxes and other measures15. The scope of implementation of this legal
act was considerably expanded in comparison with Directive No 76/308/EEC. The
provisions of the 2008 Directive were elaborated through the implementation
10 See: MAczynski (2009)..
11 More: Ruiz (2003).
12 Council Directive No 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of
claims resulting from operations forming part of the system of financing the E uropean Agricultural
Guidance and Guarantee Fund, and of agricultural levies and customs duties (Official Journal of the
European Union L No 333 of 24 December 1977), hereinafter referred to as Directive No 76/308/EEC.
13 Concurrently, it is necessary to emphasize that the international mutual assistance to the
discussed extent between the European states was still held in the mid-war period, more: Cannes
(2013).
14 Green Paper. The effective enforcement of judgments in the European Union: the transparency
of debtors’ assets, COM (2008), 128, http://eur-lex.europa.eu.
15 Council directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims
relating to certain levies, duties, taxes and other measures (Official Journal of the European Union L
No 150 of 10 June 2008), hereinafter referred to as Directive No 2008/55/EC.
The development of mutual assistance of EU member states … 69
of Commission Regulation (EC) No 1179/2008 of 28 November 2008 laying
down detailed rules for implementing certain provisions of Council Directive
No 2008/55/EC on mutual assistance for the recovery of claims relating to certain
levies, duties, taxes and other measures16.
In connection with social and economic changes and gradual expansion of the
EU, and for the purpose of the better protection of the member states’ financial
interest and the assurance of the internal market, it was necessary to expand the
scope of mutual assistance, and hence increase its efficiency. It was of paramount
importance to replace the regulations in force with Council Directive No 2010/24/EU
of 16 March 2010 on mutual assistance for the recovery of claims relating to taxes,
duties and other measures17. The adoption of this legal act created new and
presently applicable mutual assistance frames for the development of the idea of
the compulsory claim of public obligations, irrespective of the abode or the
registered office of the entity obliged to perform such obligations18.
3. Legislation in force in the European Union
In the reference books the reasons for adopting the 2010 Directive are classified
in two groups. Firstly, the procedural argument was the excessive length of
procedures conducted under the previous regulations, the increase in the number
of EU member states and - this partly results from the increased number of the EU
member states - the growing number of requests for the mutual legal assistance19.
Secondly, the argument concerning the European Community’s goal was to ensure
the proper operation of the internal market, convergence of legal systems
(including tax ones) of the member states, assurance of tax neutrality and security
of the member states’ financial interests20.
The selection of the form that determines the scope of mutual assistance
between the member states needs to be considered as justified due to the legal
16 Commission Regulation No 1179/2008 of 28 November 2008 laying down detailed rules for
implementing certain provisions of Council Directive No 2008/55/EC (Official Journal of the
European Union of 2011 No 319 of 29 November 2008), hereinafter referred to as Regulation
No 1179/2008.
17 Council Directive No 2010/24/EU of 16 March 2010 concerning mutual assistance for the
recovery of claims relating to taxes, duties and other measures (Official Journal of the European
Union L 84/1 of 31 March 2010), hereinafter referred to as Directive No 2010/24/EU.
18 Communication from the Commission to the European Parliament and the Council - An
Action Plan to strengthen the fight against tax fraud and tax evasion, COM (2012), 722, http://eur-
lex.europa.eu.
19 The statement of reasons in the Council’s Proposal for the 2010 Directive of 2 February 2009,
COM (2009), 28, http://eur-lex.europa.eu and the Communication from the Commission to the
Council and the European Parliament on the application of provisions concerning mutual assistance
for the recovery of claims relating to taxes, duties and other measures in the years 2005-2008 of 4
September 2009, COM (2009), 451, http://eur-lex.europa.eu.
20 See: Kortz (2012), Paduch (2012).
70 JAN OLSZANOWSKI, WOJCIECH PIĄTEK
nature of the directive. Since this legal act is the key tool for harmonization of
national laws in individual member states. This results from the adopted model of
the integration of the member states’ legislations - the replacement of unification
(substitution) with the harmonization process with respect to the fundamental and
uniform level of regulation. The directives (at least direct ones) are addressed to
the member states. This is depicted by the fact that directives constitute guidelines
for the member states how to achieve objectives thereof21. Therefore, the foregoing
- in connection with the Community case-law that provides for the direct
effectiveness of directives and the ability to derive rights from them - results in
advancing a thesis about the hybrid nature of directives: on the one hand, this
instrument is specific and individual (vis-à-vis addresses of directives), but on the
other hand, it has some features of the general and abstract legal act to which - as
the source of law - persons may refer22.
Directive No 2010/24/EU retains three forms of mutual assistance specified in
previous regulations, id est the provision of information by one member state,
notification of an interested party or other persons of legal acts, and enforcement
or indemnification of public claims23. Whereas, the scope of mutual assistance was
expanded and, in general, it covered any and all public claims24. Concurrently, it is
necessary to add that albeit the directive does not specify it directly, the mutual
assistance may only apply to pecuniary claims25.
Article 2, letter (c) of Directive No 2010/24/EU defines the term “person”, id
est an entity to which mechanisms formulated in this legal act may apply. The
aforesaid article provides that except for natural and legal persons, any other
entities lacking the legal status of a legal person, but having legal capacity, as well
as any other legal arrangement of whatever nature and form owning or managing
assets which, including income derived therefrom, are subject to any of the taxes
covered by this directive. The reference books indicate that the adopted legislative
solution should ensure that norms concerning the international mutual assistance
will cover any and all entities, the activity of which is subject to the tax obligation26.
At the same time, as a result of the increased possibility of mutual assistance
between the member states, the administrative apparatus authorised to perform
activities pertaining to the legal assistance is developed. In particular, it is
noteworthy that the uniform instrument permitting enforcement was established
and solutions concerning the so-called mutual assistance of officials were
implemented. Pursuant to Art. 7 of Directive No 2010/24/EU officials authorised
21 More: Morris (1989). .
22 See: Ja]kowski (2001).
23 See: Paduch (2012).
24 See: Craig (2012). , Cross-border assistance in the collection of taxes, Tax Journal, 13 July 2012,
p. 21.
25 Skoczylas (2010).
26 More: Lao (2013).
The development of mutual assistance of EU member states … 71
by the applicant authority may be present in the offices where the administrative
authorities of the requested member state carry out their duties, during
administrative enquiries carried out in the territory of the requested member state,
as well as assist the competent officials of the requested member state during court
proceedings in that member state. The presence of officials of the applicant
member state may be, however, limited by the requested state’s legislation27.
The first form of mutual assistance set forth in the directive is the possibility to
request to provide any information which is foreseeably relevant to the applicant
authority in the recovery of its claims [Art. 5(1) of Directive No 2010/24/EU]. In
case of this kind of mutual assistance there applies the mutuality principle, which,
by the way, is considered as the fundamental requirement for ensuring the
efficiency of the international mutual assistance for the recovery of public claims28.
In view of this principle the requested authority is not obliged to supply
information which it would not be able to obtain for the purpose of recovering
similar claims arising in the requested member state [Art. 5(2)(a) of Directive
No 2010/24/EU]. At the same time, it is worth mentioning that Art. 6 of Directive
No 2010/24/EU also provides for the exchange of information without any prior
request. In the reference books this kind of regulation is referred to as the
“spontaneous, occasional” exchange of information29. In practice, this kind of
providing information may emerge to be more effective than the provision of
information at the request because it applies to information obtained by the tax
authority as part of its official actions30.
Another available form of mutual assistance is the assistance for the
notification of documents. The requested authority notifies to the addressee all
documents which emanate from the applicant member state and which relate to
claims as referred to in Directive No 2010/24/EU. A request for notification may
be made only when it is unable to notify in accordance with the rules governing
the notification of the document concerned in the applicant member state, or when
such notification would give rise to disproportionate difficulties (Art. 8(2) of
Directive No 2010/24/EU). This solution protects against the excessive and
unjustified use of the applied mechanisms by the individual member states in
cases where it is possible to implement other legal instruments that do not request
the authorities of the requested state to involve31.
The most significant form of mutual assistance specified as the fundamental one32
is the assistance for the recovery of claims covered by Directive No 2010/24/EU.
However, in order to apply this kind of mechanism, it is necessary to observe some
27 See: Vascega, Van Thiel (2010).
28 See: Bal (2011).
29 See: Forner (2013), Lao (2013).
30 More on this exchange of information, see: Jeong (2013).
31 More: Terra, Wattel (2008). .
32 More: Kortz (2012).
72 JAN OLSZANOWSKI, WOJCIECH PIĄTEK
specific formal conditions. Firstly, it is necessary to draw attention to the fact that
the making of the request for mutual assistance for the recovery of claims - as a
matter of principle - is possible only after conducting the procedure in the home
state of the obliged party. It is exceptionally essential due to the possibility to
refuse to grant the mutual assistance in the event that from the maturity date of the
claim to the date of making a request lapsed at least five years33. The exception to
this rule in a situation when in the applicant member state there are no assets for
recovery or the procedure does not result in the entire reimbursement of claims,
and the applicant has information on assets located in the requested member state.
It is possible to withdraw from conducting the prior enforcement procedure in the
applicant member state when it would give rise to disproportionate difficulty. The
exception to the rule that necessitates the prior exhaustion of means of recovery
claims in the member state that applies for mutual assistance is a novelty in
comparison with the previous laws that did not lay down any exceptions to this
extent34. In terms of the protection of interests of the entity obliged to pay claims
the guarantee provision is the inability to make a request for recovery as long as
the claim or the instrument permitting its enforcement in the applicant member
state are contested in that member state [Art. 11(1) of Directive No 2010/24/EU].
In order to facilitate the mutual assistance between member states there was
implemented the obligation to append the uniform instrument permitting its
enforcement to the request for recovery in that member state. Its aim is to reflect
the content of the initial instrument permitting its enforcement and its supplement
or approval in the requested member state is impermissible. Further, there is no
need to approve its content prior to commencing the recovery procedure
[Art. 11(1) of Directive No 2010/24/EU]. The adoption of the mechanism of
making a uniform instrument permitting its enforcement aims at solving problems
concerning the recognition and translation of instruments permitting its
enforcement made in various member states35. A lack of this solution constitutes
one of the crucial reasons for the ineffectiveness of the applicable findings with
respect for the mutual assistance for recovery of claims.
Directive No 2010/24/EU directly provided that, as a rule, any claims in
respect of which a request for recovery has been made by the applicant member
state should be treated as if they were claims of the requested member state
[Art. 13 (1) of the Directive]. The introduction of this kind of mechanism in
juxtaposition with the rule of inability to recognise, supplement or replace the
uniform instrument permitting its enforcement undoubtedly forms the basis for
the deepening trust between the EU member states. Further, the equation of the
33 More: Lao (2013).
34 More: Seer (2011).
35 More: Lao (2013).
The development of mutual assistance of EU member states … 73
mode of recovering claims as part of the discussed provisions with the recovery on
the basis of the national law ensures the efficiency of the mutual assistance system.
The mode of procedure that applies to the request for granting the mutual
assistance is fundamentally governed by the law of the state granting the mutual
assistance. This means that the lex fori principle applies in compliance with the
locus regit actum principle. Therefore, the procedure for granting the mutual
assistance is affected by the legal system that applies in the office of the authority
granting the mutual assistance. The Polish reference books set forth that the
qualification of a given action in compliance with the legis fori principle is much
simpler as the requested authority better knows its own law36.
A display of the mutual assistance and trust between the member states which
realize requests for recovery of claims is to implement the duty to inform the
applicant authority of any action it has taken on the request for recovery (Art. 13(2)
of Directive No 2010/24/EU). Further, the requested authority may, where the
laws, regulations or administrative provisions in force in the requested member
state so permit, allow the debtor time to pay or authorise payment by instalment
(Art. 13(4) of the Directive). Moreover, there was implemented the rule that the
requested member states renounce - pursuant to Art. 20 (2) of Directive No
2010/24/EU - all claims on each other for the reimbursement of costs arising from
any mutual assistance.
A display of the trust between the member states is also the possibility to use
precautionary measures as part of the international mutual assistance conducted
under Directive No 2010/24/EU (Art. 16)37. In this case, the mutual assistance
principle applies, as well. In addition, the condition essential for taking
precautionary measures is also to ensure that the national law of the requested
state provides for their implementation and it is in compliance with the applicable
administrative practices.
In order to fully protect the entity’s rights against which the procedure for the
recovery of claims is conducted, authorities of the applicant state has jurisdiction
with respect to disputes about claims covered by the initial instrument permitting
enforcement. In this case, the enforcement procedure is suspended. In exceptional
and justified cases it is possible to conduct the procedure at the request of the
applicant state. In the event that the dispute is solved for the benefit of the debtor,
any costs of the procedure and any possible damages will be incurred by the
applicant member state. Disputes concerning the enforcement measures taken in
the requested member state will be brought before the competent body of that
member state (Art. 14(2) of Directive No 2010/24/EU).
Directive No 2010/24/EU provided for the possibility to refuse to grant the
assistance, if recovery of the claim would, because of the situation of the debtor,
36 See: Skoczylas (2010).
37 See: Prats (2002).
74 JAN OLSZANOWSKI, WOJCIECH PIĄTEK
create any serious economic or social difficulties in the requested member state, in
so far as the laws, regulations and administrative practices in force in that member
state allow such renunciation [Art. 18(1) of Directive No 2010/24/EU]. The
requested authority is not obliged to grant the assistance provided for in the
provisions thereof in respect of the claims which are more than 5 years old, dating
from the due date of the claim in the applicant member state [Art. 18(2) of
Directive No 2010/24/EU]. At the same time, there was introduced a quota
limitation concerning the obligation to grant the assistance with a proviso that the
member state may refuse to grant assistance if the total amount of the claims
covered by this directive is less than EUR 1,500. The introduction of this kind of
regulations specified by the de minimis principle is justified by the need to limit a
potential growth in the number of requests for mutual assistance only to those
cases in which the involvement of administrative authorities of the member states
is economically justified38.
Directive No 2010/24/EU also postulated to implement the obligation to
communicate requests and documents in a digital form and via an electronic
network. This allows the member states to handle requests faster and more easily.
There was developed a common platform based on the common communication
network (CCN). The rule is that requests are sent in the official language of the
requested member state.
Commission Implementing Regulation (EU) No 1189/2011 of 18 November
2011 laying down detailed rules in relation to certain provisions of Council
Directive No 2010/24/EU concerning mutual assistance for the recovery of claims
relating to taxes, duties and other measures implemented regulations aimed at
establishing practical aspects of mutual assistance between the member states39.
This legal act details the mode of performing the mutual assistance via the CCN.
Furthermore, the regulation includes some detailed regulations pertaining to the
mode of mutual assistance between the member states with respect to each of the
forms of mutual assistance referred to in the directive, id est the communication of
information, notification and recovery of claims.
The significance of the provisions of Regulation No 1189/2011 play a crucial
role for the course of mutual assistance between the member states for the recovery
of claims covered by this directive. Although the Community regulations have
general application, they are binding in their entirety and directly applicable in all
member states (second paragraph of Art. 249 of the Treaty Establishing the
European Community). It is noteworthy that as a rule provisions of the
Community regulations should be complete in order not to be supplemented by
the national law40.
38 See: Vascega, Van Thiel (2010). .
39 Commission Regulation No 1189/2011 of 18 November 2011 laying down detailed rules in
relation to certain provisions of Council Directive No 2010/24/EU (Official Journal of the European
Union of 2011 No 302 of 19 November 2011), hereinafter referred to as Regulation No 1189/2011.
40 See: Biernat (2004).
The development of mutual assistance of EU member states … 75
4. The national regulations on the basis of Polish law
Directive No 2010/24/EU imposed the obligation to adopt and publish not
later than 31 December 2011 the statutory secondary and administrative
regulations that would implement the solutions referred to therein. Since it is
necessary to point out that the directive is binding on the member state not only
with respect to the purpose (result) therein, but also to the deadline as referred to
therein. This strengthens the legally binding directive41.
In the Polish legal system regulations that govern the course of mutual
assistance between the member states and Poland for the recovery of claims were
initially regulated in the Act of 17 June 1966 on Administrative Enforcement
Proceedings42. The need to regulate the issue of granting the mutual assistance to a
foreign state and the use of its assistance for the recovery of pecuniary claims in the
Polish enforcement act resulted from the need to follow the principle of application
of domestic procedural law (lex fori proccessualis) which constitutes one of the
fundamental principles of all procedures43. Since the sovereignty of the state
requires it to establish the form and methods of its authorities’ activity44.
The Act of 11 October 2013 on Mutual Assistance for the Recovery of Taxes,
Duties and Other Measures45 eliminated the provisions governing modes of
mutual assistance with foreign states for the recovery of claims arising out of the
Act on Administrative Enforcement Proceedings. They were replaced with a
structurally separate act, and thus Directive 2010/24/EU was finally transposed to
Polish law and the framework of principles of mutual assistance between the
member states for the recovery of public claims so far governed by the Act on
Administrative Enforcement Proceedings was expanded. It is necessary to point
out that Art. 4(1) of this Act lays down that the procedure under the mutual
assistance for the recovery of public claims is conducted under principles set forth
in the Act on Administrative Enforcement Proceedings, whereas Art. 4(2) provides
for the obligation to properly apply the provisions referred to in Act of 14 June
1960 on Code of Administrative Procedure46 unless otherwise specified therein.
Therefore, the discussed legal act refers, with respect to the course of the
procedure, to two key acts for the course of the administrative procedure, the aim
of which is to seek claims.
The resignation from implementing the regulations concerning the
international mutual assistance for the recovery of public claims in the legal act
41 More: Wróbel (2005).
42 Act of 17 June 1966 on Administrative Enforcement Proceedings (consolidated text, Journal of
Laws of 2012, item 1015, as amended).
43 See: Skoczylas (2010).
44 More: Ciszewski, EreciRski (2000).
45 The Act of 11 October 2013 on Mutual Assistance for the Recovery of Taxes, Duties and Other
Measures (Journal of Laws of 2013, item 1289).
46 The Act of 14 June 1960 on Code of Administrative Procedure (Journal of Laws of 2000, No 98,
item 1071, as amended).
76 JAN OLSZANOWSKI, WOJCIECH PIĄTEK
governing the administrative enforcement procedure to the development of a new
separate act was to more effectively use and grant the mutual assistance and
ensure the broader exchange of information between the member states. The
development of the act separate from the Act on Administrative Enforcement
Proceedings is to guarantee the efficiency, reliability, transparency and promptness
of activities carried out by the authorities of the member state with respect to the
mutual assistance for the recovery of pecuniary claims47. In the remaining EU
member states, for instance Germany, directive 2010/24/EU was also
implemented through the enactment of a separate legal act48. As for the German
act it is noteworthy that the realisation of requests for mutual assistance refers to
the Tax Ordinance, not to the provisions of the general administrative procedure49.
5. Summary
Undoubtedly, the international mutual assistance of the member states for the
recovery of public claims will further deepen. Since it is necessary to emphasize
that the tax system cannot be considered as fair and complete, if it does not
guarantee mechanisms aimed at the compulsory recovery of claims50. The
speeding up and improvement of the realisation of requests for granting the
mutual assistance facilitate providing the request to the member state or a third-
party state, which guarantees more effective enforcement.
At the same time, the laws in force lease some judicial discretion with respect
to some disputable situations between the member states. From the discussed
regulations there may also be drawn a conclusion that they reflect the deepening
mutual trust of enforcement authorities of the member states. For example, this is
proved by a situation in which some employees of the third-party state’s
authorities can be present in the performance of any actions concerning the request
for the mutual assistance. Moreover, it is noteworthy that the rule of resigning
from seeking the reimbursement of costs arising in connection with the assistance
procedure was established.
It needs to be emphasized that the EU and national laws in force should not
narrow the mutual assistance between the individual member states as part of
mutual or multilateral arrangement or agreements. As part of these mutual or
multilateral arrangement or agreements it is possible meet any and all obligations
broader than specified in Directive No 2010/24/EU. Concurrently, Art. 24 (3) of
Directive No 2010/24/EU makes it possible to carry out the mutual assistance to
the broader extent via the communication network established for the needs of the
member states and standard forms.
47 The statement of reasons for the proposal is available at www.rcl.gov.pl.
48 The act implementing Directive No 2010/24/EU of 7 December 2011. (BGB 2011, Vol. I,
No 64).
49 More: Gabert (2012).
50 See: Bal (2011). .
The development of mutual assistance of EU member states … 77
Despite some limitations resulting from the applicable regulations, it needs to
be said that they ensure the broad and effective cooperation between the member
states for the recovery of public claims. The introduction of standards with respect
to the content and form of the uniform instrument permitting enforcement and the
establishment of the communication network between the authorities authorized
to meet obligations resulting from the adopted regulations ensure that there are
not any misunderstandings and language problems and introduce the unified
framework of the course of the procedure itself. Concurrently, the possibility to
intensify the cooperation under the bilateral agreements undoubtedly allows for a
possible tightening of the cooperation between the individual member states due
to the increased turnover with respect to the economic relationships between
individual EU member states.
References
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