Committee Reports > List of Committees > Joint > 1979 > Committee on the Secondary Legislation of the European Communities > Report No. 50 - Statutory Instruments [9]

REPORT

A. INTRODUCTION

Instruments Examined

1. Since the issue of its forty-fourth report (Prl. 7934) of 7th March, 1979 the Joint Committee has examined a further nine statutory instruments all of which were made under Section 3 of the European Communities Act, 1972 These instruments are listed in Appendix I to this report.

2. The Committee has comments to make on three of these instruments only.

B. EUROPEAN COMMUNITIES (MUTUAL ASSISTANCE IN THE FIELD OF DIRECT TAXATION) REGULATIONS, 1978 [S.I. No. 334 of 1978]

Parent Directive

3. Council Directive 77/799/EEC is directed against tax evasion and provides for the exchange of information between national revenue authorities to assist them in making correct assessment of taxes due on income and on capital. The fifty-first report (Prl. 6165) of 23rd March, 1977 of the former Joint Committee on EEC secondary legislation dealt inter alia with the Directive when it was still in the form of a proposal. The above-mentioned regulations implement the Directive in Ireland.

Obligation to furnish information on request

4. Article 2.1 of the Directive reads—

“The competent authority of a Member State may request the competent authority of another Member State to forward the information referred to in Article 1 (1) in a particular case. The competent authority of the requested State need not comply with the request if it appears that the competent authority of the State making the request has not exhausted its own usual sources of information, which it could have utilised, according to the circumstances, to obtain the information requested without running the risk of endangering the attainment of the sought after result”.

This provision is by no means clear but it may be thought by some that it could be interpreted to mean that the requested authority should have a discretionary authority to supply information even when not satisfied that the requesting authority has exhausted its own sources. If this interpretation be the correct one, the Joint Committee considers that the Irish regulations give the Revenue Commissioners no such discretion and it is re-enforced in its view by the reply which it has received to an enquiry which it addressed to the Department of Finance (see Appendix II).

Enquiries

5. Article 2.2 of the Directive provides that where a revenue authority is asked for information by an authority in another Member State it “shall arrange for the conduct of any enquiries necessary to obtain such information”. The Irish regulations contain no provision in relation to enquiries and accordingly the Committee asked the Department of Finance to indicate under what statutory authority such enquiries would be made.

6. In its reply (see Appendix II) the Department refers to Article 8.1 of the Directive which provides that the “Directive shall impose no obligation to have enquiries carried out… if the Member State, which should furnish the information, would be prevented by its laws or administrative practices from carrying out these enquiries…”. It goes on to draw attention to various powers enjoyed by the Revenue Commissioners under the Income Tax Act, 1967. The Joint Committee takes the view that these statutory powers enable the Revenue Commissioners to carry out enquiries only for the purpose of determining liability to Irish tax. It has therefore reached the conclusion that the Revenue Commissioners have power to conduct enquiries for the purpose of eliciting information for other Member States only where such enquiries happen to be necessary for the purpose of establishing liability to Irish tax. If this is in fact the position it would meet the recommendation made by the former Joint Committee in its report on the draft Directive.

C. EUROPEAN COMMUNITIES (NON-AUTOMATIC WEIGHING MACHINES) REGULATIONS, 1979 [S.I. No. 128 of 1979]

Fees

7. These Regulations are made to comply with EEC Directives regarding non-automatic weighing machines. They apply to those machines a system already in operation in this country for giving EEC type approval to measuring instruments and provide that machines from other Member States which have received such approval are allowed to be sold and used here. They also include a provision that a fee of £0.50 is to be charged for each machine submitted for EEC initial verification.

8. Like its predecessor the Joint Committee has been critical of statutory instruments which provide for charging fees but leave the amount of such fees to be fixed administratively. As demonstrated in the Committee’s twentieth report (Prl. 7279) of 28th June, 1978, such provisions effectively remove fees from parliamentary control. The Committee is therefore very pleased to note that in the Regulations, S.I. No. 128 of 1979, the amount of the fee to be charged is specified. The Committee trusts that the example will be followed in future statutory instruments made under the European Communities Act, 1972.

D. EUROPEAN COMMUNITIES (FREEDOM TO PROVIDE SERVICES) (LAWYERS) REGULATIONS, 1979 [S.I. No. 58 of 1979]

Publicity

9. These Regulations implement Council Directive 77/249/EEC so as to enable lawyers from other Member States to provide legal services in this country. The Joint Committee believes that the provisions of the instrument should formally be brought to the attention of the members of the legal profession in this country. It recommends that the Department of Justice consult the professional bodies concerned to see how this might best be done.

Amendment of Statute

10. It notes that the instrument inter alia amends the Solicitors Act, 1954. While the Joint Committee accepts that Ministers may amend statutes by regulations made under the European Communities Act, 1972 it does not think it desirable that amendments of statutes, and particularly of those in common use, should remain scattered throughout statutory instruments indefinitely. It believes that such amendments should be incorporated in amending legislation as soon as a convenient opportunity presents itself.

Vice-Chairman of the Joint Committee.

30th May, 1979.