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6.11.2012 Official
Journal
of
the
European
Union L
306/21
DECISIONS
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,
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.
Having regard to the Treaty on the Functioning of the European
Union,
(5) It
is
necessary
to
establish
the
detailed
rules
concerning
the procedures for investigations, detailed criteria estab
lishing the amount of the fine, detailed rules guaranteeing
Having regard to Regulation (EU) No 1173/2011 of the
the rights of the defence, access to the file, legal repre
European Parliament and of the Council of 16 November
sentation, confidentiality, and provisions as to the timing
2011 on the effective enforcement of budgetary surveillance
and collection of fines.
in the euro area ( 1 ), and in particular Article 8(4) thereof,
Whereas:
(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 manipu
(1) Regulation
(EU)
No
1173/2011
sets
out
a
system
of
lation of the relevant deficit and debt data.
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.
(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,
(2) The
availability
of
sound
fiscal
data
is
essential
for
local or social-security level, in accordance with Council
budgetary surveillance in the euro area. In order to
Regulation (EC) No 2223/96 of 25 June 1996 on the
guarantee sound and independent statistics, Member
European system of national and regional accounts in
States should ensure the principle of professional inde
the Community ( 3 ), hereinafter referred to as ‘ESA 95’.
pendence 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 (
(8) In
order
to
confirm
a
suspicion
following
serious
indi

2 ), and as further set out in the
European Statistics Code of Practice.
cations 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
(3) Regulation (EU) No
1173/2011 empowers the
Council Regulation (EC) No 479/2009 of 25 May 2009
Commission to survey the economic and monetary
on the application of the Protocol on the excessive deficit
cooperation with a view to detecting and exposing
procedure annexed to the Treaty establishing the
manipulation of general government deficit and debt
European Community ( 4 ).
data relevant for the application of the multilateral
surveillance system and the excessive deficit procedure.
(9) In
assessing
what
constitutes
a
misrepresentation
of
deficit and debt data within the meaning of Regulation
(4) For
that
purpose,
the
Commission
should
conduct
all
(EU) No 1173/2011, incorrect implementation of ESA
necessary investigations to confirm the existence of
95 accounting rules which is not the result of either
( 1 ) OJ L 306, 23.11.2011, p. 1.
( 3 ) OJ L 310, 30.11.1996, p. 1.
( 2 ) OJ L 87, 31.3.2009, p. 164.
( 4 ) OJ L 145, 10.6.2009, p. 1.

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L 306/22
EN
Official Journal of the European Union
6.11.2012
intent or serious negligence should not be considered as
objectives established in Regulation (EU) No 1173/2011,
such. Further excluded from the application of this
in accordance with Article 5 of the Treaty on European
Decision should be revisions, including major revisions
Union.
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
(17) This
Decision
should
apply
without
prejudice
to
Regu
by the Member State concerned and clarification has
lation (EC) No 1049/2001 of the European Parliament
been requested from the Commission (Eurostat) in
and of the Council of 30 May 2001 regarding public
accordance with Article 10 of Regulation (EC)
access to European Parliament, Council and Commission
No 479/2009.
documents ( 1 ),
(10) Users
of
European
statistics
have
a
legitimate
expectation
HAS ADOPTED THIS DECISION:
that they are produced by statistical authorities that
conduct their activities professionally and with due dili
gence. An unintentional act or omission should be
considered a case of serious negligence if a person
CHAPTER I
responsible for the production of general government
deficit and debt data is in patent breach of his duty of
SUBJECT MATTER AND SCOPE
care.
Article 1
Subject matter and scope
(11) For the purpose of its defence, the Member State
1. This
Decision
lays
down
detailed
rules
concerning
the
concerned should be duly notified of the opening of as
procedures for investigating misrepresentations of general-
well as of the results of the Commission investigations.
government deficit and debt data that are the result of intent
The results of the investigations should be communicated
or serious negligence, detailed rules concerning the right of
by means of a Commission report to be transmitted to
defence and confidentiality, detailed criteria establishing the
the European Parliament and to the Council, and to be
amount of the fine and provisions as to the timing and
made public. The Commission (Eurostat) should keep the
collection of the fines referred to in Article 8(1) of Regulation
European Statistical System Committee and the European
(EU) No 1173/2011.
Statistical Governance Advisory Board appropriately
informed.
2. This
Decision
shall
apply
to
Member
States
whose
currency is the euro.
(12) The rights of defence and the principle of confidentiality
should be respected in accordance with the general prin
ciples of law and the case-law of the Court of Justice of
CHAPTER II
the European Union. In particular, the Member State
concerned should have the right to be heard by the
PROCEDURES FOR INVESTIGATIONS
Commission during the investigations, as well as to
access the file compiled by the Commission.
Article 2
Initiation of the investigations
(13) Recommendations to the Council to impose a fine
1. The
Commission
shall
notify
the
Member
State
concerned
should be based exclusively on grounds on which the
of its decision to initiate an investigation, including information
Member State concerned has been able to comment.
of the serious indications found of the existence of facts liable
to constitute a misrepresentation of general government deficit
and debt data arising from the manipulation of such data as a
result of either intent or serious negligence.
(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
2. During
an
investigation,
the
Commission
(Eurostat)
may
reference amount adapted upwards or downwards
request information, interview persons, conduct on-site
where necessary in the light of specific circumstances.
inspections and accede to the accounts of all government
entities at central, State, local and social security level, in
accordance with the procedures laid down in Articles 3 to 5.
Those means of investigation may be employed by the
(15) This Decision should be without prejudice to the
Commission (Eurostat), either individually or in combination.
Commission (Eurostat) exercising its powers under Regu
Where relevant and while fully respecting national rules
lation (EC) No 479/2009.
governing such institutions, the court of auditors or other
supreme audit institutions of the Member State concerned
may be invited to assist and participate.
(16) The
content
and
form
of
the
measures
laid
down
in
this
Decision do not exceed what is necessary to achieve the
( 1 ) OJ L 145, 31.5.2001, p. 43.

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EN
6.11.2012 Official
Journal
of
the
European
Union L
306/23
3. The
Commission
may
opt
not
to
conduct
such
an
inves
(e) ask any representative or member of staff of the entity
tigation until a methodological visit has been carried out in
concerned for explanations on facts or documents relating
accordance with a decision taken by the Commission (Eurostat)
to the subject matter and purpose of the inspection, under
under Regulation (EC) No 479/2009.
the conditions laid down in Article 4.
4. The
Commission
shall
inform
the
European
Parliament 2. The Commission officials and other accompanying
and the Council of its decision to initiate an investigation.
persons authorised by the Commission to conduct an
inspection shall present a written authorisation specifying the
subject matter and purpose of the inspection, stating the date
Article 3
on which the inspection begins.
Request for information
1. At the request of the Commission, any government entity,
3. The
entity
concerned
shall
fully
cooperate
with
the
directly or indirectly involved in compiling debt and deficit data
Commission for the purposes of the inspection.
of the Member State concerned, or whose accounts are used for
this compilation (hereinafter referred to as ‘the entity
concerned’) shall provide the Commission with all necessary
4. Staff
members
of
statistical
authorities
of
the
Member
information to perform its task of investigation. The Member
State concerned shall, at the request of the Commission,
State concerned shall be informed about any such request by
actively assist the officials and other accompanying persons
the Commission to the entity concerned.
authorised by the Commission. To this end, they shall enjoy
the powers specified in paragraph 1.
2. The Commission shall state the purpose of the request,
specifying that the request is made pursuant to this Decision,
5. Where
the
Commission
officials
and
other
accompanying
and shall indicate a deadline for the reply, which shall be no less
persons authorised by the Commission find that an entity
than four weeks.
opposes an inspection ordered pursuant to this Article, the
Member State concerned shall provide them the necessary
assistance according to national rules.
Article 4
Interviews
6. If,
by
national
rules,
the
authorisation
from
a
judicial
The Commission may interview any person directly or indirectly
authority is necessary for the conduct of the inspection, such
involved in compiling deficit and debt data, who agrees to be
authorisation shall be applied for by the Commission. In those
interviewed, for the purpose of collecting information or expla
cases the authorisation from a judicial authority shall be
nations concerning facts or documents relating to the subject
presented along with the written authorisation referred to in
matter of an investigation and to record the answers. The entity
paragraph 2.
concerned shall be informed before any of its representatives or
members of staff are interviewed. The person interviewed may
request the assistance of a representative of the entity concerned
Article 6
or of a legal counsel.
Right to be heard
Before adoption of the report referred to in Article 7, the
Article 5
Commission shall invite the Member State concerned to
Inspections
submit written observations on the preliminary findings.
1. The Commission officials and other accompanying
persons authorised by the Commission to conduct an
It shall do so in writing, indicating a deadline for the
inspection shall be empowered to:
submission of those observations, which shall be no less than
four weeks.
(a) enter any premises of the entity concerned;
Article 7
(b) accede all records and accounts of the entity concerned,
Reporting
irrespective of the medium on which they are stored;
1. The
Commission
shall
adopt
a
report
presenting
its
findings and the observations submitted by the Member State
(c) take or obtain any form of copy or extract of any records
concerned in the light of the investigations conducted in
and accounts;
accordance with this Chapter and submit it to that Member
State.
(d) seal any records and accounts to the extent and for the
period of time necessary to compile the factual evidence
2. The
Commission
shall
transmit
this
report
to
the
for the investigation while not hampering the essential
European Parliament and the Council. This report shall be
activities of the entity concerned;
made public.

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L 306/24
EN
Official Journal of the European Union
6.11.2012
3. The
Commission
(Eurostat)
shall
inform
the
European
Article 12
Statistical System Committee and the European Statistical
Governance Advisory Board about the outcome of the investi
Confidentiality and professional secrecy
gation.
The investigations set out in Chapter II shall be conducted
subject to the principles of confidentiality and professional
secrecy. The Commission officials and other accompanying
4. Any
Commission
recommendation
to
the
Council
to persons authorised by the Commission shall not disclose
impose a fine on the Member State concerned shall be based
information that is acquired in the framework of the investi
on the report referred to in paragraph 1.
gation which is covered by the obligation of professional
secrecy and confidentiality.
Article 8
Duration
Documents or information obtained by the Commission in the
course of the investigations shall be used solely for the purposes
1. The
Commission
shall
adopt
the
report
referred
to
in of this Decision.
Article 7 no later than 10 months after notification of its
decision to initiate an investigation according to Article 2. In
exceptional cases, where the investigations are obstructed or
where the acquisition of the information necessary for the
CHAPTER IV
investigations involves excessively long procedures, the
Commission may extend the deadline by five months.
CRITERIA FOR ESTABLISHING THE AMOUNT OF THE FINE
Article 13
2. The inspections shall be completed within six months of
Maximum amount
the starting date of the inspection. In exceptional cases, where
the inspections are obstructed or where the acquisition of the
The total amount of the fine shall not exceed 0,2 % of the latest
information in connection with the inspections involves
official gross domestic product at current market prices of the
excessively long procedures, the Commission may extend the
Member State concerned, as defined in ESA 95, in the preceding
deadline by three months.
year.
CHAPTER III
Article 14
RIGHT OF DEFENCE AND CONFIDENTIALITY
Criteria with regard to the amount of the fine
Article 9
1. The
Commission
shall
ensure
that
the
fine
to
be
recom
mended is effective, proportionate and dissuasive. The fine shall
Right of defence
be established on the basis of a reference amount that may be
The principle of the right of defence shall apply to any imple
modulated upwards or downwards when taking into account
mentation of this Decision.
the specific circumstances referred to in paragraph 3.
Article 10
2. The
reference
amount
shall
be
equal
to
5
%
of
the
larger
impact of the misrepresentation on the level of either the
Access to the file
general government deficit or debt of the Member State for
The Member State concerned shall have the right, on request, to
the relevant years covered by the notification in the context
access all documents and other factual materials compiled by
of the excessive deficit procedure.
the Commission which could serve as supporting evidence for
the recommendation to the Council to impose the said Member
State a fine.
3. Taking
into
account
the
maximum
amount
established
in
Article 13, the Commission shall in each case take into
consideration, where relevant, the following circumstances:
Documents obtained by the Member State concerned through
access to the file shall be used solely for the purposes of this
Decision.
(a) the seriousness and the wider effects of the misrepresen
tation; in particular, the impact of the misrepresentation
Article 11
on the functioning of the strengthened economic
governance of the Union;
Legal representation
The Member State concerned, any entity concerned, any person
working for such an entity or any other natural person
(b) the fact that the misrepresentation has been shown to be
concerned shall have the right to legal representation during
the result of serious negligence or, alternatively, the misrep
the investigations.
resentation has been shown to be intentional;

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EN
6.11.2012 Official
Journal
of
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European
Union L
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(c) the fact that the misrepresentation was the work of one
3. The
limitation
period
for
the
recovery
of
fines
shall
be
entity acting alone or, alternatively, the misrepresentation
interrupted by any action of the Commission designed to
was the result of a concerted action by two or more entities;
enforce payment of the fine or shall be suspended for so
long as enforcement of payment is suspended pursuant to a
decision of the Court of Justice of the European Union.
(d) the repetition, frequency or duration of the misrepresen
tation by the Member State concerned; in such cases, the
reference amount shall be the highest magnitude detected
and shall be multiplied by the number of years, across the
CHAPTER V
four years of the last notification, in which the relevant
misrepresentation occurred;
FINAL PROVISION
Article 16
(e) the degree of diligence and cooperation, alternatively the
degree of obstruction, shown by the Member State
Entry into force
concerned in the detection of the misrepresentation and
in the course of the investigations.
This Decision shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union.
Article 15
Limitation period for the collection of fines
1. The
right
of
the
Commission
to
enforce
decisions
taken Done at Brussels, 29 June 2012.
by the Council pursuant to Article 8(1) of Regulation (EU)
No 1173/2011 shall be exercised within a period of five years.
For the Commission
2. The period shall begin to run on the day on which the
Member State concerned is notified of the decision of the
The President
Council.
José Manuel BARROSO

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Document Outline

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