L 127/70 Official Journal of the European Union 29.4.2004 COUNCIL DIRECTIVE 2004/56/EC of 21 April 2004 amending Directive 77/799/EEC concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, certain excise duties and taxation of insurance premiums THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Com- munity, and in particular Articles 93 and 94 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament (*), Having regard to the opinion of the European Economic and Social Committee (), Whereas: 1 Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authori- ties of the Member States in the field of direct taxation, certain excise duties and taxation of insurance premiums (*) established the ground rules for administra- tive cooperation and the exchange of information between Member States in order to detect and prevent tax evasion and tax fraud and to enable Member States to carry out a correct tax assessment. It is essential to improve, expand and modernise those rules. When a Member State conducts enquiries in order to obtain the information necessary to respond to a request for assistance, that State should be regarded as acting on its own account; in that way, there will only be one set of rules applying to the information-gathering process and the investigation will not be undermined by delays. It is inappropriate, if the fight against tax fraud is to be effective, that a Member State which has received infor- mation from another Member State should subsequently have to request permission to disclose the information in public hearings or judgements. It should be made clear that a Member State is not under any obligation to carry out enquiries in order to obtain the information necessary to respond to a request for assistance where either its legislation or administra- tive practices do not permit its competent authority to conduct enquiries or to collect such information. It should be possible for the competent authority of a Member State to refuse information or assistance when the requesting Member State is not in a position to supply the same type of information, whether for reasons of fact or of law. (") Opinion delivered on 15 January 2004 (not yet published in the Official Journal). () O] C 32, 5.2.2004, p. 94. () OJ L 336,27.12.1977, p. 15. Directive as last amended by Directive 2003/93[EC (O] L 264, 15.10.2003, p. 23). (6) In view of the legal requirement in certain Member States that a taxpayer be notified of decisions and instru- ments concerning his tax liability and of the ensuing difficulties for the tax authorities, including cases where the taxpayer has relocated to another Member State, it is desirable that, in such circumstances, the tax authorities should be able to call upon the assistance of the compe- tent authorities of the Member State to which the taxpayer has relocated. Since the tax situation of one or more persons liable to tax established in several Member States often is of common or complementary interest, it should be made possible for simultaneous controls to be carried out to such persons by two or more Member States, by mutual agreement and on a voluntary basis, whenever such controls appear to be more effective than controls carried out by only one Member State. The Commission submitted its proposal for a Directive on the basis of Article 95 of the Treaty. The Council, taking the view that the proposal for a Directive related to the harmonisation of legislation in the field of both direct and indirect taxation and that the act should therefore be adopted on the basis of Articles 93 and 94 of the Treaty, consulted the European Parliament by letter dated 12 November 2003 informing it of the Council's intention of changing the legal basis. Directive 77/799/EEC should therefore be amended accordingly, HAS ADOPTED THIS DIRECTIVE: Atrticle 1 Directive 77/799/EEC is hereby amended as follows: 1. Article 1(5) shall be amended as follows: (@) the wording under ‘in Italy’ shall be replaced by the following: ‘il Capo del Dipartimento per le Politiche Fiscali or his authorised representatives’ the wording under ‘in Sweden’ shall be replaced by the following: ‘Chefen for Finansdepartementet or his authorised repre- sentative’