COUNCIL REGULATION (EU) No 904/2010

 

of 7 October 2010

 

on administrative cooperation and combating fraud in the field of value added tax

 

(recast)

 

 

 

 

 

Amended by:

 

Council Regulation (EU) No 517/2013 of 13 May 2013

 

 

 

 

 

 

 

 


COUNCIL REGULATION (EU) No 904/2010

 

of 7 October 2010

 

on administrative cooperation and combating fraud in the field of value added tax

 

(recast)

 

 

 

THE COUNCIL OF THE EUROPEAN UNION,

 

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 113 thereof,

 

Having regard to the proposal from the European Commission,

 

Having regard to the opinion of the European Parliament[1],

 

Having regard to the opinion of the European Economic and Social Committee[2],

 

Acting in accordance with a special legislative procedure,

 

Whereas:

 

(1)     Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax[3] has been substantially amended several times. Since further amendments are to be made, it should be recast in the interests of clarity.

 

 

 

(2)        The instruments to combat fraud in the field of value added tax (hereinafter ‘VAT’) in Regulation (EC) No 1798/2003 should be improved and supplemented subsequent to the Council Conclusions of 7 October 2008; the Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee on a coordinated strategy to improve the fight against VAT fraud in the European Union; and the Report from the Commission to the Council and the European Parliament on the application of Council Regulation (EC) No 1798/2003 concerning administrative cooperation in the field of VAT (hereinafter the ‘Commission’s report’). Editorial and practical clarifications of the provisions of Regulation (EC) No 1798/2003 are also required.

 

 

 

(3)        Tax evasion and tax avoidance extending across the frontiers of Member States lead to budget losses and violations of the principle of fair taxation. They are also liable to bring about distortions of capital movements and of the conditions of competition. They thus affect the operation of the internal market.

 

 

 

(4)        Combating VAT evasion calls for close cooperation between the competent authorities in each Member State responsible for the application of the provisions in that field.

 

 

 

(5)        The tax harmonisation measures taken to complete the internal market should include the establishment of a common system for cooperation between the Member States, in particular as concerns exchange of information, whereby the Member States’ competent authorities are to assist each other and to cooperate with the Commission in order to ensure the proper application of VAT on supplies of goods and services, intra-Community acquisition of goods and importation of goods.

 

 

 

(6)        Administrative cooperation should not lead to an undue shift of administrative burdens between Member States.

 

 

 

(7)        For the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed. They must therefore not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State.

 

 

 

(8)        Monitoring the correct application of VAT on cross-border transactions taxable in a Member State other than that where the supplier is established depends in many cases on information which is held by the Member State of establishment or which can be much more easily obtained by that Member State. Effective supervision of such transactions is therefore dependent on the Member State of establishment collecting, or being in a position to collect, that information.

 

 

 

(9)        In order to establish the one-stop shop scheme provided for by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax[4], and to apply the refund procedure for taxable persons not established in the Member State of refund provided for in Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State[5], rules on the exchange and storage of information by Member States are required.

 

 

 

(10)      In cross-border situations, it is important to specify the obligations of each Member State so that the tax can be effectively monitored in the Member State in which it is owed.

 

 

 

(11)      Electronic storage and transmission of certain data for VAT control purposes are indispensable for the proper functioning of the VAT system. They allow for rapid information exchange and automated access to information, which strengthen the fight against fraud. That can be achieved by enhancing the databases on VAT-taxable persons and their intra-Community transactions through the inclusion in those databases of a range of information on the taxable persons and their transactions.

 

 

 

(12)      The Member States should implement proper verification procedures to ensure that the information is up-to-date, comparable and of good quality, thereby increasing its reliability. The conditions for the exchange of, and the automated access of Member States to, electronically stored data should be clearly defined.

 

 

 

(13)      In order to fight fraud effectively, it is necessary to provide for information exchange without prior request. To facilitate the exchange of information, the categories for which an automatic exchange needs to be established should be specified.

 

 

 

(14)      As indicated in the Commission’s report, feedback is an appropriate means to ensure continual improvement of the quality of the information exchanged. A framework for the provision of feedback should therefore be put in place.

 

 

 

(15)      For the effective monitoring of VAT on cross-border transactions, it is necessary to provide for the possibility of simultaneous controls by Member States and of the presence of officials of one Member State in the territory of another Member State, within the framework of administrative cooperation.

 

 

 

(16)      Online confirmation of the validity of VAT identification numbers is a tool which is increasingly used by operators. The system for confirming the validity of VAT identification numbers should provide automated confirmation of the relevant information to operators.

 

 

 

(17)      Some taxable persons are subject to specific obligations which are different from those in force in the Member State in which they are established, particularly as regards invoicing, when they supply goods or services to customers established on the territory of another Member State. A mechanism should be established to make information on such obligations readily available for those taxable persons.

 

 

 

(18)      Recent practical experience of the application of Regulation (EC) No 1798/2003 in the fight against carrousel fraud has shown that in some cases it is essential to establish a much faster mechanism for the exchange of information, covering much more, and better targeted, information in order to combat fraud effectively. In accordance with the Council Conclusions of 7 October 2008, a decentralised network without legal personality, to be called Eurofisc, should be established within the framework of this Regulation for all the Member States, to promote and facilitate multilateral and decentralised cooperation permitting targeted and swift action to combat specific types of fraud.

 

 

 

(19)      The Member State of consumption has primary responsibility for assuring that non-established suppliers comply with their obligations. To this end, the application of the temporary special scheme for electronically supplied services that is provided for in Chapter 6 of Title XII of Directive 2006/112/EC requires the definition of rules concerning the provision of information and transfer of money between the Member State of identification and the Member State of consumption.

 

 

 

(20)      Information obtained by a Member State from third countries may be very useful to other Member States. Likewise information obtained by a Member State from other Member States may be very useful to third countries. The conditions for the exchange of such information should therefore be specified.

 

 

 

(21)      National rules on banking secrecy should not stand in the way of the application of this Regulation.

 

 

 

(22)      This Regulation should not affect other measures adopted at Union level which contribute to combating VAT fraud.

 

 

 

(23)      In the interests of effectiveness and speed and on grounds of cost, it is essential that the information communicated under this Regulation should be provided by electronic means wherever possible.

 

 

 

(24)      In view of the repetitive nature of certain requests and the linguistic diversity within the Union, it is important to enhance the use of standard forms in the exchange of information so that information requests can be more rapidly processed.

 

 

 

(25)      The time limits laid down in this Regulation for the provision of information are to be understood as maximum periods not to be exceeded, the principle being that, in order for cooperation to be effective, information already available to the requested Member State should be provided without further delay.

 

 

 

(26)      For the purposes of this Regulation, it is appropriate to consider limitations of certain rights and obligations laid down by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data[6] in order to safeguard the interests referred to in Article 13(1)(e) of that Directive. Such limitations are necessary and proportionate in view of the potential loss of revenue for Member States and the crucial importance of information covered by this Regulation for the effectiveness of the fight against fraud.

 

 

 

(27)      As the measures necessary to implement this Regulation are measures of general scope within the meaning of Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[7], they must be adopted in conformity with the regulatory procedure provided for in Article 5 of that Decision,

 

HAS ADOPTED THIS REGULATION:

 

 

 

CHAPTER I - GENERAL PROVISIONS

 

Article 1

 

1.      This Regulation lays down the conditions under which the competent authorities in the Member States responsible for the application of the laws on VAT are to cooperate with each other and with the Commission to ensure compliance with those laws.

 

 

 

To that end, it lays down rules and procedures to enable the competent authorities of the Member States to cooperate and to exchange with each other any information that may help to effect a correct assessment of VAT, monitor the correct application of VAT, particularly on intra-Community transactions, and combat VAT fraud. In particular, it lays down rules and procedures for Member States to collect and exchange such information by electronic means.

 

2.      This Regulation lays down the conditions under which the authorities referred to in paragraph 1 are to assist in the protection of VAT revenue in all the Member States.

 

3.      This Regulation shall not affect the application in the Member States of the rules on mutual assistance in criminal matters.

 

4.      This Regulation also lays down rules and procedures for the exchange by electronic means of VAT information on services supplied electronically in accordance with the special scheme provided for in Chapter 6 of Title XII of Directive 2006/112/EC and also for any subsequent exchange of information and, as far as services covered by that special scheme are concerned, for the transfer of money between Member States’ competent authorities.

 

Article 2

 

1.      For the purposes of this Regulation, the following definitions shall apply:

 

(a)     ‘central liaison office’ means the office which has been designated pursuant to Article 4(1) with principal responsibility for contacts with other Member States in the field of administrative cooperation;

 

(b)     ‘liaison department’ means any office other than the central liaison office which has been designated as such by the competent authority pursuant to Article 4(2) to exchange directly information on the basis of this Regulation;

 

(c)     ‘competent official’ means any official who can directly exchange information on the basis of this Regulation for which he has been authorised pursuant to Article 4(3);

 

(d)    ‘requesting authority’ means the central liaison office, a liaison department or any competent official of a Member State who makes a request for assistance on behalf of the competent authority;

 

(e)     ‘requested authority’ means the central liaison office, a liaison department or any competent official of Member State who receives a request for assistance on behalf of the competent authority;

 

(f)     ‘intra-Community transactions’ means the intra-Community supply of goods or services;

 

(g)     ‘intra-Community supply of goods’ means any supply of goods which must be declared in the recapitulative statement provided for in Article 262 of Directive 2006/112/EC;

 

(h)     ‘intra-Community supply of services’ means any supply of services which must be declared in the recapitulative statement provided for in Article 262 of Directive 2006/112/EC;

 

(i)      ‘intra-Community acquisition of goods’ means the acquisition of the right pursuant to Article 20 of Directive 2006/112/EC to dispose as owner of moveable tangible property;

 

(j)      ‘VAT identification number’ means the number provided for in Articles 214, 215 and 216 of Directive 2006/112/EC;

 

(k)     ‘administrative enquiry’ means all the controls, checks and other action taken by Member States in the performance of their duties with a view to ensuring proper application of VAT legislation;

 

(l)      ‘automatic exchange’ means the systematic communication of predefined information to another Member State, without prior request;

 

(m)    ‘spontaneous exchange’ means the non-systematic communication, at any moment and without prior request, of information to another Member State;

 

(n)     ‘person’ means:

 

(i)      a natural person;

 

(ii)     a legal person;

 

(iii)    where the legislation in force so provides, an association of persons recognised as having the capacity to perform legal acts but lacking the legal status of a legal person; or

 

(iv)    any other legal arrangement of whatever nature and form, which has legal personality or not, and conducts transactions which are subject to VAT;

 

(o)     ‘automated access’ means the possibility of access without delay to an electronic system in order to consult certain information contained therein;

 

(p)     ‘by electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data, and employing wires, radio transmission, optical technologies or other electromagnetic means;

 

(q)     ‘CCN/CSI network’ means the common platform based on the common communication network (hereinafter the ‘CCN’) and common system interface (hereinafter the ‘CSI’), developed by the Union to ensure all transmissions by electronic means between competent authorities in the area of customs and taxation;

 

(r)     ‘simultaneous control’ means coordinated checks on the tax situation of a taxable person or related taxable persons, organised by two or more participating Member States with common or complementary interests.

 

2.      From 1 January 2015, the definitions contained in Articles 358, 358a and 369a of Directive 2006/112/EC shall also apply for the purposes of this Regulation.

 

Article 3

 

The competent authorities are the authorities in whose name this Regulation is to be applied, whether directly or by delegation.

 

Each Member State shall inform the Commission by 1 December 2010 of its competent authority for the purposes of this Regulation and shall subsequently inform the Commission without delay about any change thereof.

 

Croatia shall inform the Commission by 1 July 2013 of its competent authority for the purposes of this Regulation and of the subsequent changes as mentioned in the second paragraph.

 

The Commission shall make available to the Member States a list of all competent authorities and publish this information in the Official Journal of the European Union.

 

Article 4

 

1.      Each Member State shall designate a single central liaison office to which principal responsibility shall be delegated for contacts with other Member States in the field of administrative cooperation. It shall inform the Commission and the other Member States thereof. The central liaison office may also be designated as responsible for contacts with the Commission.

 

2.      The competent authority of each Member State may designate liaison departments. The central liaison office shall be responsible for keeping the list of those departments up-to-date and making it available to the central liaison offices of the other Member States concerned.

 

3.      The competent authority of each Member State may in addition designate, under the conditions laid down by it, competent officials who can directly exchange information on the basis of this Regulation. When it does so, it may limit the scope of such designation. The central liaison office shall be responsible for keeping the list of those officials up-to-date and making it available to the central liaison offices of the other Member States concerned.

 

4.      The officials exchanging information pursuant to Articles 28, 29 and 30 shall in any case be deemed to be competent officials for this purpose, in accordance with conditions laid down by the competent authorities.

 

Article 5

 

Where a liaison department or a competent official sends or receives a request or a reply to a request for assistance, it shall inform the central liaison office of its Member State under the conditions laid down by the latter.


Article 6

 

Where a liaison department or a competent official receives a request for assistance requiring action outside its territorial or operational area, it shall forward such request without delay to the central liaison office of its Member State and inform the requesting authority thereof. In such a case, the period laid down in Article 10 shall start the day after the request for assistance has been forwarded to the central liaison office.

 

CHAPTER II - EXCHANGE OF INFORMATION ON REQUEST

 

SECTION 1  - Request for information and for administrative enquiries

 

Article 7

 

1.      At the request of the requesting authority, the requested authority shall communicate the information referred to in Article 1, including any information relating to a specific case or cases.

 

2.      For the purpose of forwarding the information referred to in paragraph 1, the requested authority shall arrange for the conduct of any administrative enquiries necessary to obtain such information.

 

3.      Until 31 December 2014, the request referred to in paragraph 1 may contain a reasoned request for an administrative enquiry. If the requested authority takes the view that the administrative enquiry is not necessary, it shall immediately inform the requesting authority of the reasons thereof.

 

4.      As from 1 January 2015, the request referred to in paragraph 1 may contain a reasoned request for a specific administrative enquiry. If the requested authority takes the view that no administrative enquiry is necessary, it shall immediately inform the requesting authority of the reasons thereof.

 

Notwithstanding the first subparagraph, an enquiry into the amounts declared by a taxable person in connection with the supplies of goods or services listed in Annex I, which are made by a taxable person established in the Member State of the requested authority and are taxable in the Member State of the requesting authority, may be refused solely:

 

(a)     on the grounds provided for in Article 54(1), assessed by the requested authority in conformity with a statement of best practices concerning the interaction of this paragraph and Article 54(1), to be adopted in accordance with the procedure provided for in Article 58(2);

 

(b)     on the grounds provided for in paragraphs 2, 3 and 4 of Article 54; or

 

(c)     on the grounds that the requested authority had already supplied the requesting authority with information on the same taxable person as a result of an administrative enquiry held less than two years previously.

 

Where the requested authority refuses an administrative enquiry referred to in the second subparagraph on the grounds set out in points (a) or (b), it shall nevertheless provide to the requesting authority the dates and values of any relevant supplies made by the taxable person in the Member State of the requesting authority over the previous two years.

 

5.      In order to obtain the information sought or to conduct the administrative enquiry requested, the requested authority or the administrative authority to which it has recourse shall proceed as though acting on its own account or at the request of another authority in its own Member State.

 

Article 8

 

Requests for information and for administrative enquiries pursuant to Article 7 shall be sent using a standard form adopted in accordance with the procedure provided for in Article 58(2), except in the cases referred to in Article 50 or in exceptional cases where the request includes the reasons for which the requesting authority considers the standard form not to be appropriate.

 

Article 9

 

1.      At the request of the requesting authority, the requested authority shall communicate to it any pertinent information it obtains or has in its possession as well as the results of administrative enquiries, in the form of reports, statements and any other documents, or certified true copies or extracts thereof.

 

2.      Original documents shall be provided only where this is not contrary to the provisions in force in the Member State in which the requested authority is established.

 

SECTION 2  - Time limit for providing information

 

Article 10

 

The requested authority shall provide the information referred to in Articles 7 and 9 as quickly as possible and no later than three months following the date of receipt of the request.

 

However, where the requested authority is already in possession of that information, the time limit shall be reduced to a maximum period of one month.

 

Article 11

 

In certain special categories of cases, time limits which are different from those provided for in Article 10 may be agreed between the requested and the requesting authorities.

 

Article 12

 

Where the requested authority is unable to respond to the request by the deadline, it shall inform the requesting authority in writing forthwith of the reasons for its failure to do so, and when it considers it would be likely to be able to respond.

 

 

 

CHAPTER III - EXCHANGE OF INFORMATION WITHOUT PRIOR REQUEST

 

Article 13

 

1.      The competent authority of each Member State shall, without prior request, forward the information referred to in Article 1 to the competent authority of any other Member State concerned, in the following cases:

 

(a)     where taxation is deemed to take place in the Member State of destination and the information provided by the Member State of origin is necessary for the effectiveness of the control system of the Member State of destination;

 

(b)     where a Member State has grounds to believe that a breach of VAT legislation has been committed or is likely to have been committed in the other Member State;

 

(c)     where there is a risk of tax loss in the other Member State.

 

2.      The exchange of information without prior request shall either be automatic, in accordance with Article 14, or spontaneous, in accordance with Article 15.

 

3.      The information shall be forwarded by means of standard forms adopted in accordance with the procedure provided for in Article 58(2).

 

Article 14

 

1.      The following shall be determined in accordance with the procedure provided for in Article 58(2):

 

(a)     the exact categories of information subject to automatic exchange;

 

(b)     the frequency of the automatic exchange for each category of information; and

 

(c)     the practical arrangements for the automatic exchange of information.

 

A Member State may abstain from taking part in the automatic exchange of information with respect to one or more categories where the collection of information for such exchange would require the imposition of new obligations on persons liable for VAT or would impose a disproportionate administrative burden on the Member State.

 

The results of the automatic exchange of information for each category shall be reviewed once a year by the Committee referred to in Article 58(1), so as to ensure that this type of exchange takes places only where it is the most efficient means for the exchange of information.

 

2.      As from 1 January 2015, the competent authority of each Member State shall, in particular, exchange information automatically in order to enable Member States of consumption to ascertain whether taxable persons not established in their territory declare and correctly pay the VAT due with regard to telecommunication services, broadcasting services and electronically supplied services, regardless of whether those taxable persons make use of the special scheme provided for in Section 3 of Chapter 6 of Title XII of Directive 2006/112/EC. The Member State of establishment shall inform the Member State of consumption of any discrepancies of which it becomes aware.

 

Article 15

 

The competent authorities of the Member States shall, by spontaneous exchange, forward to the competent authorities of the other Member States any information referred to in Article 13(1) which has not been forwarded under the automatic exchange referred to in Article 14 of which they are aware and which they consider may be useful to those competent authorities.

 

CHAPTER IV - FEEDBACK

 

Article 16

 

Where a competent authority provides information pursuant to Article 7 or 15, it may request the competent authority which receives the information to give feedback thereon. If such request is made, the competent authority which receives the information shall, without prejudice to the rules on tax secrecy and data protection applicable in its Member State, send feedback as soon as possible, provided that this does not impose a disproportionate administrative burden on it. Practical arrangements shall be determined in accordance with the procedure provided for in Article 58(2).

 

CHAPTER V - STORAGE AND EXCHANGE OF SPECIFIC INFORMATION

 

Article 17

 

1.      Each Member State shall store in an electronic system the following information:

 

(a)     information which it collects pursuant to Chapter 6 of Title XI of Directive 2006/112/EC;

 

(b)     data on the identity, activity, legal form and address of persons to whom it has issued a VAT identification number, collected pursuant to Article 213 of Directive 2006/112/EC, as well as the date on which that number was issued;

 

(c)     data on VAT identification numbers it has issued which have become invalid, and the dates on which those numbers became invalid; and

 

(d)    information which it collects pursuant to Articles 360, 361, 364 and 365 of Directive 2006/112/EC as well as, from 1 January 2015, information which it collects pursuant to Articles 369c, 369f and 369g of that Directive.

 

2.      The technical details concerning the automated enquiry of the information referred to in points (b), (c) and (d) of paragraph 1 shall be adopted in accordance with the procedure provided for in Article 58(2).


Article 18

 

To enable the information referred to in Article 17 to be used in the procedures provided for in this Regulation, that information shall be available for at least five years from the end of the first calendar year in which access to the information is to be granted.

 

Article 19

 

Member States shall ensure that the information available in the electronic system referred to in Article 17 is kept up-to-date, and is complete and accurate.

 

Criteria shall be defined, in accordance with the procedure provided for in Article 58(2), to determine which changes are not pertinent, essential or useful and therefore need not be made.

 

Article 20

 

1.      The information referred to in Article 17 shall be entered into the electronic system without delay.

 

2.      By way of derogation from paragraph 1, the information referred to in Article 17(1)(a) shall be entered into the electronic system no later than one month after the end of the period to which that information relates.

 

3.      By way of derogation from paragraphs 1 and 2, where information is to be corrected in, or added to, the electronic system pursuant to Article 19, the information must be entered no later than one month after the period in which it was collected.

 

Article 21

 

1.      Every Member State shall grant the competent authority of any other Member State automated access to the information stored pursuant to Article 17.

 

2.      With respect to the information referred to in Article 17(1)(a), at least the following details shall be accessible:

 

(a)     VAT identification numbers issued by the Member State receiving the information;

 

(b)     the total value of all intra-Community supplies of goods and the total value of all intra-Community supplies of services to persons holding a VAT identification number referred to in point (a) by all operators identified for the purposes of VAT in the Member State providing the information;

 

(c)     the VAT identification numbers of the persons who carried out the supplies of goods and services referred to in point (b);

 

(d)    the total value of the supplies of goods and services referred to in point (b) from each person referred to in point (c) to each person holding a VAT identification number referred to in point (a);

 

(e)     the total value of the supplies of goods and services referred to in point (b) from each person referred to in point (c) to each person holding a VAT identification number issued by another Member State under the following conditions:

 

(i)      access is in connection with an investigation into suspected fraud;

 

(ii)     access is through a Eurofisc liaison official, as referred to in Article 36(1), who holds a personal user identification for the electronic systems allowing access to this information; and

 

(iii)    access is only granted during general working hours.

 

The values referred to in points (b), (d) and (e) shall be expressed in the currency of the Member State providing the information and shall relate to the periods for submission of the recapitulative statements specific to each taxable person which are established in accordance with Article 263 of Directive 2006/112/EC.

 

Article 22

 

1.      In order to provide a reasonable level of assurance to tax administrations with regard to the quality and reliability of the information available through the electronic system referred to in Article 17, Member States shall adopt the measures necessary to ensure that the data provided by taxable persons and non-taxable legal persons for their identification for VAT purposes in accordance with Article 214 of Directive 2006/112/EC, are, in their assessment, complete and accurate.

 

Member States shall implement procedures for checking these data as determined by the results of their risk assessment. The checks shall be carried out, in principle, prior to identification for VAT purposes or, where only preliminary checks are conducted before such identification, no later than six months from such identification.

 

2.      The Member States shall inform the Committee referred to in Article 58(1) of the measures implemented at national level to ensure the quality and reliability of the information in accordance with paragraph 1.

 

Article 23

 

Member States shall ensure that the VAT identification number, referred to in Article 214 of Directive 2006/112/EC, is shown as invalid in the electronic system referred to in Article 17 of this Regulation at least in the following situations:

 

(a)     where persons identified for VAT purposes have stated that their economic activity, as defined in Article 9 of Directive 2006/112/EC, has ceased or where the competent tax administration considers that they have ceased such activity. A tax administration may presume in particular that a person has ceased economic activity when, despite being required to do so, that person has failed to submit VAT returns and recapitulative statements for a year after expiry of the deadline for submission of the first return or statement missed. The person shall have the right to prove the existence of an economic activity by other means;

 

(b)     where persons have declared false data in order to obtain VAT identification or have failed to communicate changes to their data and, had the tax administration known, the latter would have refused identification for VAT purposes or withdrawn the VAT identification number.

 

Article 24

 

Where, for the purposes of Articles 17 to 21, the competent authorities of the Member States exchange information by electronic means, they shall take all measures necessary to ensure compliance with Article 55.

 

Member States shall be responsible for all necessary developments to their systems to permit the exchange of that information using the CCN/CSI network.

 

CHAPTER VI - REQUEST FOR ADMINISTRATIVE NOTIFICATION

 

Article 25

 

The requested authority shall, at the request of the requesting authority and in accordance with the rules governing the notification of similar instruments in the Member State in which the requested authority is established, notify the addressee of all instruments and decisions which emanate from the competent authorities and concern the application of VAT legislation in the territory of the Member State in which the requesting authority is established.

 

Article 26

 

Requests for notification, mentioning the subject of the instrument or decision to be notified, shall indicate the name, address and any other relevant information for identifying the addressee.

 

Article 27

 

The requested authority shall inform the requesting authority immediately of its response to the request for notification and notify it, in particular, of the date of notification of the decision or instrument to the addressee.

 

CHAPTER VII - PRESENCE IN ADMINISTRATIVE OFFICES AND PARTICIPATION IN ADMINISTRATIVE ENQUIRIES

 

Article 28

 

1.      By agreement between the requesting authority and the requested authority, and in accordance with the arrangements laid down by the latter, officials authorised by the requesting authority may, with a view to exchanging the information referred to in Article 1, be present in the offices of the administrative authorities of the requested Member State, or any other place where those authorities carry out their duties. Where the requested information is contained in documentation to which the officials of the requested authority have access, the officials of the requesting authority shall be given copies thereof.

 

2.      By agreement between the requesting authority and the requested authority, and in accordance with the arrangements laid down by the latter, officials authorised by the requesting authority may, with a view to exchanging the information referred to in Article 1, be present during the administrative enquiries carried out in the territory of the requested Member State. Such administrative enquiries shall be carried out exclusively by the officials of the requested authority. The officials of the requesting authority shall not exercise the powers of inspection conferred on officials of the requested authority. They may, however, have access to the same premises and documents as the latter, through the intermediation of the officials of the requested authority and for the sole purpose of carrying out the administrative enquiry.

 

3.      The officials of the requesting authority present in another Member State in accordance with paragraphs 1 and 2 must at all times be able to produce written authority stating their identity and their official capacity.

 

CHAPTER VIII - SIMULTANEOUS CONTROLS

 

Article 29

 

Member States may agree to conduct simultaneous controls whenever they consider such controls to be more effective than controls carried out by only one Member State.

 

Article 30

 

1.      A Member State shall identify independently the taxable persons which it intends to propose for a simultaneous control. The competent authority of that Member State shall notify the competent authority of the other Member States concerned of the cases proposed for a simultaneous control. It shall give reasons for its choice, as far as possible, by providing the information which led to its decision. It shall specify the period of time during which such controls should be conducted.

 

2.      The competent authority of the Member State that receives the proposal for a simultaneous control shall confirm its agreement or communicate its reasoned refusal to its counterpart authority, in principle within two weeks of receipt of the proposal, but within a month at the latest.

 

3.      Each competent authority of the Member States concerned shall appoint a representative to be responsible for supervising and coordinating the control operation.

 

CHAPTER IX - PROVIDING INFORMATION TO TAXABLE PERSONS

 

Article 31

 

1.      The competent authorities of each Member State shall ensure that persons involved in the intra-Community supply of goods or of services and non-established taxable persons supplying telecommunication services, broadcasting services and electronically supplied services, in particular those referred to in Annex II to Directive 2006/112/EC, are allowed to obtain, for the purposes of such transactions, confirmation by electronic means of the validity of the VAT identification number of any specified person as well as the associated name and address. This information shall correspond to the data referred to in Article 17.

 

2.      Each Member State shall provide confirmation by electronic means of the name and address of the person to whom the VAT identification number has been issued in accordance with its national data protection rules.

 

3.      During the period provided for in Article 357 of Directive 2006/112/EC, paragraph 1 of this Article shall not apply to non-established taxable persons supplying telecommunication services and radio and television broadcasting services.

 

Article 32

 

1.      The Commission shall, on the basis of the information provided by the Member States, publish on its website the details of the provisions approved by each Member State which transpose Chapter 3 of Title XI of Directive 2006/112/EC.

 

2.      The details and format of the information to be submitted shall be decided in accordance with the procedure provided for in Article 58(2).

 

CHAPTER X - EUROFISC

 

Article 33

 

1.      In order to promote and facilitate multilateral cooperation in the fight against VAT fraud, this Chapter establishes a network for the swift exchange of targeted information between Member States hereinafter called ‘Eurofisc’.

 

2.      Within the framework of Eurofisc, Member States shall:

 

(a)     establish a multilateral early warning mechanism for combating VAT fraud;

 

(b)     coordinate the swift multilateral exchange of targeted information in the subject areas in which Eurofisc will operate (hereinafter ‘Eurofisc working fields’);

 

(c)     coordinate the work of the Eurofisc liaison officials of the participating Member States in acting on warnings received.

 

Article 34

 

1.      Member States shall participate in the Eurofisc working fields of their choice and may also decide to terminate their participation therein.

 

2.      Member States having chosen to take part in a Eurofisc working field shall actively participate in the multilateral exchange of targeted information between all participating Member States.

 

3.      Information exchanged shall be confidential, as provided for in Article 55.


Article 35

 

The Commission shall provide Eurofisc with technical and logistical support. The Commission shall not have access to the information referred to in Article 1, which may be exchanged over Eurofisc.

 

Article 36

 

1.      The competent authorities of each Member State shall designate at least one Eurofisc liaison official. Eurofisc liaison officials shall be competent officials within the meaning of Article 2(1)(c) and shall carry out the activities referred to in Article 33(2). They shall remain answerable only to their national administrations.

 

2.      The liaison officials of the Member States participating in a particular Eurofisc working field (hereinafter ‘participating Eurofisc liaison officials’) shall designate a coordinator (hereinafter ‘Eurofisc working field coordinator’), among the participating Eurofisc liaison officials, for a limited period of time. Eurofisc working field coordinators shall:

 

(a)     collate the information received from the participating Eurofisc liaison officials and make all information available to the other participating Eurofisc liaison officials. The information shall be exchanged by electronic means;

 

(b)     ensure that the information received from the participating Eurofisc liaison officials is processed, as agreed by the participants in the working field, and make the result available to the participating Eurofisc liaison officials;

 

(c)     provide feedback to the participating Eurofisc liaison officials.

 

Article 37

 

Eurofisc working field coordinators shall submit an annual report of the activities of all working fields to the Committee referred to in Article 58(1).

 

CHAPTER XI - PROVISIONS CONCERNING THE SPECIAL SCHEMES IN CHAPTER 6 OF TITLE XII OF DIRECTIVE 2006/112/EC

 

SECTION 1 - Provisions applicable until 31 December 2014

 

Article 38

 

The following provisions shall apply concerning the special scheme provided for in Chapter 6 of Title XII of Directive 2006/112/EC. The definitions contained in Article 358 of that Directive shall also apply for the purpose of this Chapter.

 

Article 39

 

1.      The information provided by the taxable person not established in the Community to the Member State of identification, when his activities commence pursuant to Article 361 of Directive 2006/112/EC, shall be submitted by electronic means. The technical details, including a common electronic message, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

2.      The Member State of identification shall transmit this information by electronic means to the competent authorities of the other Member States within 10 days from the end of the month during which the information was received from the non-established taxable person. In the same manner the competent authorities of the other Member States shall be informed of the allocated identification number. The technical details, including a common electronic message, by which this information is to be transmitted, shall be determined in accordance with the procedure provided for in Article 58(2).

 

3.      The Member State of identification shall without delay inform by electronic means the competent authorities of the other Members States if a non-established taxable person is excluded from the identification register.

 

Article 40

 

1.      The return with the details set out in Article 365 of Directive 2006/112/EC is to be submitted by electronic means. The technical details, including a common electronic message, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

2.      The Member State of identification shall transmit this information by electronic means to the competent authority of the Member State concerned at the latest 10 days after the end of the month during which the return was received. Member States which have required the tax return to be made in a national currency other than euro, shall convert the amounts into euro using the exchange rate valid for the last date of the reporting period. The exchange shall be done following the exchange rates published by the European Central Bank for that day, or, if there is no publication on that day, on the next day of publication. The technical details by which this information is to be transmitted shall be determined in accordance with the procedure provided for in Article 58(2).

 

3.      The Member State of identification shall transmit by electronic means to the Member State of consumption the information needed to link each payment with a relevant quarterly tax return.

 

Article 41

 

1.      The Member State of identification shall ensure that the amount the non-established taxable person has paid is transferred to the bank account denominated in euro which has been designated by the Member State of consumption to which the payment is due. Member States which required the payments in a national currency other than euro shall convert the amounts into euro using the exchange rate valid for the last date of the reporting period. The exchange shall be done following the exchange rates published by the European Central Bank for that day, or, if there is no publication on that day, on the next day of publication. The transfer shall take place at the latest 10 days after the end of the month during which the payment was received.

 

2.      If the non-established taxable person does not pay the total tax due, the Member State of identification shall ensure that the payment is transferred to the Member States of consumption in proportion to the tax due in each Member State. The Member State of identification shall inform by electronic means the competent authorities of the Member States of consumption thereof.

 

Article 42

 

Member States shall notify by electronic means the competent authorities of the other Member States of the relevant bank account numbers for receiving payments according to Article 41.

 

Member States shall without delay notify by electronic means the competent authorities of the other Member States and the Commission of changes in the standard tax rate.

 

SECTION 2  - Provisions applicable from 1 January 2015

 

Article 43

 

The following provisions shall apply concerning the special schemes provided for in Chapter 6 of Title XII of Directive 2006/112/EC.

 

Article 44

 

1.      The information provided by the taxable person not established in the Community to the Member State of identification when his activities commence pursuant to Article 361 of Directive 2006/112/EC shall be submitted by electronic means. The technical details, including a common electronic message, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

2.      The Member State of identification shall transmit the information referred to in paragraph 1 by electronic means to the competent authorities of the other Member States within 10 days from the end of the month during which the information was received from the taxable person not established within the Community. Similar details for the identification of the taxable person applying the special scheme pursuant to Article 369b of Directive 2006/112/EC shall be transmitted within 10 days from the end of the month during which the taxable person stated that his taxable activities under that scheme commenced. In the same manner the competent authorities of the other Member States shall be informed of the allocated identification number.

 

The technical details, including a common electronic message, by which this information is to be transmitted, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

3.      The Member State of identification shall without delay inform by electronic means the competent authorities of the other Member States if a taxable person not established in the Community or a taxable person not established in the Member State of consumption is excluded from the special scheme.


Article 45

 

1.      The return with the details set out in Articles 365 and 369g of Directive 2006/112/EC is to be submitted by electronic means. The technical details, including a common electronic message, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

2.      The Member State of identification shall transmit this information by electronic means to the competent authority of the Member State of consumption concerned at the latest 10 days after the end of the month during which the return was received. The information provided for in the second paragraph of Article 369g of Directive 2006/112/EC shall also be transmitted to the competent authority of the Member State of establishment concerned. Member States which have required the tax return to be made in a national currency other that euro, shall convert the amounts into euro using the exchange rate valid for the last date of the reporting period. The exchange shall be done following the exchange rates published by the European Central Bank for that day, or, if there is no publication on that day, on the next day of publication. The technical details by which this information is to be transmitted shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

3.      The Member State of identification shall transmit by electronic means to the Member State of consumption the information needed to link each payment with a relevant quarterly tax return.

 

Article 46

 

1.      The Member State of identification shall ensure that the amount the non-established taxable person has paid is transferred to the bank account denominated in euro which has been designated by the Member State of consumption to which the payment is due. Member States which required the payments in a national currency other than euro shall convert the amounts into euro using the exchange rate valid for the last date of the reporting period. The exchange shall be done following the exchange rates published by the European Central Bank for that day, or, if there is no publication on that day, on the next day of publication. The transfer shall take place at the latest 10 days after the end of the month during which the payment was received.

 

2.      If the non-established taxable person does not pay the total tax due, the Member State of identification shall ensure that the payment is transferred to the Member States of consumption in proportion to the tax due in each Member State. The Member State of identification shall inform by electronic means the competent authorities of the Member States of consumption thereof.

 

3.      Concerning the payments to be transferred to the Member State of consumption in accordance with the special scheme provided for in Section 3 of Chapter 6 of Title XII of Directive 2006/112/EC, the Member State of identification shall, of the amounts referred to in paragraphs 1 and 2 of this Article, be entitled to retain:

 

(a)     from 1 January 2015 until 31 December 2016 — 30 %;

 

(b)     from 1 January 2017 until 31 December 2018 — 15 %;

 

(c)     from 1 January 2019 — 0 %.

 

Article 47

 

Member States shall notify by electronic means the competent authorities of the other Member States of the relevant bank account numbers for receiving payments in accordance with Article 46.

 

Member States shall without delay notify by electronic means the competent authorities of the other Member States and the Commission of changes in the tax rate applicable for supplies of telecommunication services, broadcasting services and electronically supplied services.

 

CHAPTER XII - EXCHANGE AND CONSERVATION OF INFORMATION IN THE CONTEXT OF THE PROCEDURE FOR THE REFUND OF VAT TO TAXABLE PERSONS NOT ESTABLISHED IN THE MEMBER STATE OF REFUND BUT ESTABLISHED IN ANOTHER MEMBER STATE

 

Article 48

 

1.      Where the competent authority of the Member State of establishment receives an application for refund of VAT pursuant to Article 5 of Directive 2008/9/EC, and Article 18 of that Directive is not applicable, it shall, within 15 calendar days of its receipt and by electronic means, forward the application to the competent authorities of each Member State of refund concerned with confirmation that the applicant as defined in Article 2(5) of Directive 2008/9/EC is a taxable person for the purposes of VAT and that the identification or registration number given by this person is valid for the refund period.

 

2.      The competent authorities of each Member State of refund shall notify by electronic means the competent authorities of the other Member States of any information required by them pursuant to Article 9(2) of Directive 2008/9/EC. The technical details, including a common electronic message by which this information is to be transmitted, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.

 

3.      The competent authorities of each Member State of refund shall notify by electronic means the competent authorities of the other Member States if they want to make use of the option to require the applicant to provide the description of business activity by harmonised codes as referred to in Article 11 of Directive 2008/9/EC.

 

The harmonised codes referred to in the first subparagraph shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation on the basis of the NACE classification established by Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2[8].

 

 

 

CHAPTER XIII - RELATIONS WITH THE COMMISSION

 

Article 49

 

1.      The Member States and the Commission shall examine and evaluate how the arrangements for administrative cooperation provided for in this Regulation are working. The Commission shall pool the Member States’ experience with the aim of improving the operation of those arrangements.

 

2.      The Member States shall communicate to the Commission any available information relevant to their application of this Regulation.

 

3.      A list of statistical data needed for evaluation of this Regulation shall be determined in accordance with the procedure provided for in Article 58(2). The Member States shall communicate these data to the Commission in so far as they are available and the communication is not likely to involve administrative burdens which would be unjustified.

 

4.      With a view to evaluating the effectiveness of this system of administrative cooperation in combating tax evasion and tax avoidance, Member States may communicate to the Commission any other information referred to in Article 1.

 

5.      The Commission shall forward the information referred to in paragraphs 2, 3 and 4 to the other Member States concerned.

 

6.      Where necessary, in addition to what is required by other provisions in this Regulation, the Commission shall send to the competent authorities of each Member State any information that might enable them to combat fraud in the field of VAT as soon as it obtains such information.

 

7.      The Commission may, at the request of a Member State, provide its expert opinions, technical or logistical assistance, or any other support with a view to attaining the objectives of this Regulation.

 

 

 

CHAPTER XIV - RELATIONS WITH THIRD COUNTRIES

 

Article 50

 

1.      When the competent authority of a Member State receives information from a third country, that authority may pass the information on to the competent authorities of Member States which might be interested in it and, in any event, to all those which request it, in so far as permitted by assistance arrangements with that particular third country.

 

2.      Competent authorities may communicate, in accordance with their domestic provisions on the communication of personal data to third countries, information obtained in accordance with this Regulation to a third country, provided that the following conditions are met:

 

(a)     the competent authority of the Member State from which the information originates has consented to that communication; and

 

(b)     the third country concerned has given an undertaking to provide the cooperation required to gather evidence of the irregular nature of transactions which appear to contravene VAT legislation.

 

CHAPTER XV - CONDITIONS GOVERNING THE EXCHANGE OF INFORMATION

 

Article 51

 

1.      Information communicated pursuant to this Regulation shall, as far as possible, be provided by electronic means under arrangements to be adopted in accordance with the procedure provided for in Article 58(2).

 

2.      Where the request has not been lodged completely through the electronic system referred to in paragraph 1, the requested authority shall confirm receipt of the request by electronic means without delay and, in any event, no later than five working days after receipt.

 

Where an authority has received a request or information of which it is not the intended recipient, it shall send a message by electronic means to the sender without delay and, in any event, no later than five working days after receipt.

 

Article 52

 

Requests for assistance, including requests for notification, and attached documents may be made in any language agreed between the requested and requesting authority. The said requests shall be accompanied by a translation into the official language or one of the official languages of the Member State in which the requested authority is established only in special cases when the requested authority gives a reason for asking for such a translation.

 

Article 53

 

The Commission and the Member States shall ensure that such existing or new communication and information exchange systems which are necessary to provide for the exchanges of information described in this Regulation are operational. A service level agreement ensuring the technical quality and quantity of the services to be delivered by the Commission and the Member States for the functioning of those communication and information exchange systems shall be decided in accordance with the procedure provided for in Article 58(2). The Commission shall be responsible for whatever development of the CCN/CSI network is necessary to permit the exchange of this information between Member States. Member States shall be responsible for whatever development of their systems is necessary to permit this information to be exchanged using the CCN/CSI network.

 

Member States shall waive all claims for the reimbursement of expenses incurred in applying this Regulation except, where appropriate, in respect of fees paid to experts.


Article 54

 

1.      The requested authority in one Member State shall provide a requesting authority in another Member State with the information referred to in Article 1 provided that:

 

(a)     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;

 

(b)     that 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.

 

2.      This Regulation shall impose no obligation to have enquiries carried out or to provide information on a particular case if the laws or administrative practices of the Member State which would have to supply the information do not authorise the Member State to carry out those enquiries or collect or use that information for that Member State’s own purposes.

 

3.      The competent authority of a requested Member State may refuse to provide information where the requesting Member State is unable, for legal reasons, to provide similar information. The Commission shall be informed of the grounds of the refusal by the requested Member State.

 

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 of information whose disclosure would be contrary to public policy.

 

5.      Paragraphs 2, 3 and 4 should on no account be interpreted as authorising the requested authority of a Member State to refuse to supply information on a taxable person identified for VAT purposes in the Member State of the requesting authority on the sole grounds that this information is held by a bank, other financial institution, nominee or person acting in an agency or fiduciary capacity or because it relates to ownership interests in a legal person.

 

6.      The requested authority shall inform the requesting authority of the grounds for refusing a request for assistance.

 

7.      A minimum threshold triggering a request for assistance may be adopted in accordance with the procedure provided for in Article 58(2).

 

Article 55

 

1.      Information communicated or collected in any form pursuant to this Regulation, including any information to which an official has had access in the circumstances set out in Chapters VII, VIII and X, and in the cases referred to in paragraph 2 of this Article, shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under both the national law of the Member State which received it and the corresponding provisions applicable to Union authorities. Such information shall be used only in the circumstances provided for in this Regulation.

 

 

 

Such information may be used for the purpose of establishing the assessment base or the collection or administrative control of tax for the purpose of establishing the assessment base.

 

The information may also be used for the assessment of other levies, duties, and taxes covered by Article 2 of 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[9].

 

In addition, it may be used in connection with judicial proceedings that may involve penalties, initiated as a result of infringements of tax law without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.

 

2.      Persons duly accredited by the Security Accreditation Authority of the Commission may have access to this information only in so far as it is necessary for care, maintenance and development of the CCN/CSI network.

 

3.      By way of derogation from paragraph 1, 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, under the legislation of the Member State of the requested authority, the information can be used for similar purposes.

 

4.      Where the requesting authority considers that information it has received from the requested authority is likely to be useful to the competent authority of a third Member State, it may transmit it to the latter authority. It shall inform the requested authority thereof in advance. The requested authority may require that the transmission of the information to a third party be subject to its prior agreement.

 

5.      All storage or exchange of information referred to in this Regulation is subject to the provisions implementing Directive 95/46/EC. However, 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 required in order to safeguard the interests referred to in Article 13(1)(e) of that Directive.

 

Article 56

 

Reports, statements and any other documents, or certified true copies or extracts thereof, obtained by the staff of the requested authority and communicated to the requesting authority under the assistance provided for by this Regulation may be invoked as evidence by the competent bodies of the Member State of the requesting authority on the same basis as similar documents provided by another authority of that country.


Article 57

 

1.      For the purpose of applying this Regulation, Member States shall take all necessary measures to:

 

(a)     ensure effective internal coordination between the competent authorities;

 

(b)     establish direct cooperation between the authorities authorised for the purposes of such coordination;

 

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

 

2.      The Commission shall communicate to each Member State, as quickly as possible, any information which it receives and which it is able to provide.

 

CHAPTER XVI - FINAL PROVISIONS

 

Article 58

 

1.      The Commission shall be assisted by the Standing Committee on Administrative Cooperation.

 

2.      Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

 

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

 

Article 59

 

1.      By 1 November 2013 and thereafter every five years, the Commission shall report to the European Parliament and the Council on the application of this Regulation.

 

2.      Member States shall communicate to the Commission the text of any provisions of national law which they adopt in the field covered by this Regulation.

 

Article 60

 

1.      This Regulation shall be without prejudice to the fulfilment of any wider obligations in relation to mutual assistance ensuing from other legal acts, including bilateral or multilateral agreements.

 

2.      Where the Member States conclude bilateral arrangements on matters covered by this Regulation, in particular pursuant to Article 11, other than to deal with individual cases, they shall inform the Commission without delay. The Commission shall in turn inform the other Member States.


Article 61

 

Regulation (EC) No 1798/2003 shall be repealed with effect from 1 January 2012. However, the effects of Article 2(1) of that Regulation shall be maintained until the date of publication by the Commission of the list of competent authorities referred to in Article 3 of this Regulation.

 

Chapter V, with the exception of Article 27(4), of that Regulation shall remain applicable until 31 December 2012.

 

References made to the repealed Regulation shall be construed as references to this Regulation.

 

Article 62

 

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

 

It shall apply from 1 January 2012.

 

However, Articles 33 to 37 shall apply from 1 November 2010;

 

Chapter V, with the exception of Articles 22 and 23, shall apply from 1 January 2013;

 

    Articles 38 to 42 shall apply from 1 January 2012 until 31 December 2014; and

 

    Articles 43 to 47 shall apply from 1 January 2015.

 

This Regulation shall be binding in its entirety and directly applicable in all Member States.

 

 

 

 

 

 


ANNEX I

 

List of supplies of goods and services to which Article 7(3) and (4) applies:

 

1.      distance selling (Articles 33 and 34 of Directive 2006/112/EC);

 

2.      services connected with immovable property (Article 47 of Directive 2006/112/EC);

 

3.      telecommunication services, radio and television broadcasting services and electronically supplied services (Article 58 of Directive 2006/112/EC);

 

4.      hiring, other than short-term hiring, of a means of transport to a non-taxable person (Article 56 of Directive 2006/112/EC).

 

 

 

 

 

 


ANNEX II

 

Repealed Regulation and successive amendments

 

Council Regulation (EC) No 1798/2003              OJ L 264, 15.10.2003, p. 1.

 

Council Regulation (EC) No 885/2004                OJ L 168, 1.5.2004, p. 1.

 

Council Regulation (EC) No 1791/2006              OJ L 363, 20.12.2006, p. 1.

 

Council Regulation (EC) No 143/2008                OJ L 44, 20.2.2008, p. 1.

 

Council Regulation (EC) No 37/2009                  OJ L 14, 20.1.2009, p. 1.

 

 

 

 

 

 


ANNEX III

 

CORRELATION TABLE

 

Regulation (EC) No 1798/2003

This Regulation

First and second subparagraphs of Article 1(1)

 

First and second subparagraphs of Article 1(1)

Third subparagraph of Article 1(1)

 

Fourth subparagraph of Article 1(1)

 

Article 1(4)

Article 1(2)

 

Article 1(3)

Article 2(1)(1)

 

Article 3

Article 2(1)(2)

 

Article 2(1)(a)

Article 2(1)(3)

 

Article 2(1)(b)

Article 2(1)(4)

 

Article 2(1)(c)

Article 2(1)(5)

 

Article 2(1)(d)

Article 2(1)(6)

 

Article 2(1)(e)

Article 2(1)(7)

 

Article 2(1)(f)

Article 2(1)(8)

 

Article 2(1)(g)

Article 2(1)(9)

 

Article 2(1)(h)

Article 2(1)(10)

 

Article 2(1)(i)

Article 2(1)(11)

 

Article 2(1)(j)

Article 2(1)(12)

 

Article 2(1)(k)

Article 2(1)(13)

 

Article 2(1)(l)

Article 2(1)(14)

 

Article 2(1)(15)

 

Article 2(1)(m)

Article 2(1)(16)

 

Article 2(1)(n)

Article 2(1)(17)

 

Article 2(1)(18)

 

Article 2(1)(p)

Article 2(1)(19)

 

Article 2(1)(q)

Article 2(2)

 

Article 2(2)

Article 3(1)

 

Article 3(2)

 

Article 4(1)

Article 3(3)

 

Article 4(2)

Article 3(4)

 

Article 4(3)

Article 3(5)

 

Article 4(4)

Article 3(6)

 

Article 5

Article 3(7)

 

Article 6

Article 4

 

Article 5(1)

 

Article 7(1)

Article 5(2)

 

Article 7(2)

Article 5(3)

 

 

Up to 31 December 2014: Article 7(3)

From 1 January 2015: Article 7(4)

Article 5(4)

 

Article 7(5)

Article 6

 

Article 8

Article 7

 

Article 9

Article 8

 

Article 10

Article 9

 

Article 11

Article 10

 

Article 12

Article 11

 

Article 28

Article 12

 

Article 29

Article 13

 

Article 30

Article 14

 

Article 25

Article 15

 

Article 26

Article 16

 

Article 27

Article 17 first subparagraph

 

Article 13(1)

Article 17 second subparagraph

 

Article 14(2)

Article 18

 

First subparagraph of Article 14(1)

Article 19

 

Article 20

 

Article 21

 

Second subparagraph of Article 14(1)

First subparagraph of Article 22(1)

 

Article 17(1)(a)

Second subparagraph of Article 22(1)

 

Article 18

Article 22(2)

 

Article 19

First paragraph of Article 23

 

Article 21(2)(a) and (b)

Second paragraph of Article 23

 

Second subparagraph of Article 21(2)

First paragraph of Article 24, point (1)

 

Article 21(2)(c)

First paragraph of Article 24, point (2)

 

Article 21(2)(d)

Second paragraph of Article 24

 

Second subparagraph of Article 21(2)

Article 25(1)

 

Article 20(1)

Article 25(2)

 

Article 20(2)

Article 25(3)

 

Article 26

 

Article 24 first subparagraph

Article 27(1)

 

Article 17(1)(b)

Article 27(2)

 

Article 17(1)(b) and Article 21(1)

Article 27(3)

 

Article 17(1)(b) and Article 21(1)

Article 27(4)

 

Article 31

Article 27(5)

 

Article 24

Article 28

 

 

Up to 31 December 2014: Article 38

From 1 January 2015: Article 43

Article 29

 

 

Up to 31 December 2014: Article 39

From 1 January 2015: Article 44

Article 30

 

 

Up to 31 December 2014: Article 40

From 1 January 2015: Article 45

Article 31

 

Article 17(1)(d)

Article 32

 

 

Up to 31 December 2014: Article 41

From 1 January 2015: Article 46

Article 33

 

 

Up to 31 December 2014: Article 42

From 1 January 2015: Article 47

Article 34

 

Article 34a

 

Article 48

Article 35

 

Article 49

Article 36

 

Article 50

Article 37

 

Article 51(1)

Article 38

 

Article 52

Article 39

 

Article 53

Article 40

 

Article 54

Article 41

 

Article 55

Article 42

 

Article 56

Article 43

 

Article 57

Article 44

 

Article 58

Article 45

 

Article 59

Article 46

 

Article 60

Article 47

 

Article 61

Article 48

 

Article 62

 

 

 



[1]     Opinion of 5 May 2010 (not yet published in the Official Journal).

[2]       Opinion of 17 February 2010 (not yet published in the Official Journal).

[3]       OJ L 264, 15.10.2003, p. 1.

[4]       OJ L 347, 11.12.2006, p. 1.

[5]       OJ L 44, 20.2.2008, p. 23.

[6]       OJ L 281, 23.11.1995, p. 31.

[7]       OJ L 184, 17.7.1999, p. 23.

[8]       OJ L 393, 30.12.2006, p. 1.

[9]       OJ L 150, 10.6.2008, p. 28.

 

 

 

 

COUNCIL IMPLEMENTING REGULATION (EU) No 282/2011

 

of 15 March 2011

 

laying down implementing measures for Directive 2006/112/EC on the common system of value added tax

 

(recast)

 

 

 

THE COUNCIL OF THE EUROPEAN UNION,

 

Having regard to the Treaty on the Functioning of the European Union,

 

Having regard to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax[1], and in particular Article 397 thereof,

 

Having regard to the proposal from the European Commission,

 

Whereas:

 

(1)         A number of substantial changes are to be made to Council Regulation (EC) No 1777/2005 of 17 October 2005 laying down implementing measures for Directive 77/388/EEC on the common system of value added tax[2]. It is desirable, for reasons of clarity and rationalisation, that the provisions in question should be recast.

 

(2)         Directive 2006/112/EC contains rules on value added tax (VAT) which, in some cases, are subject to interpretation by the Member States. The adoption of common provisions implementing Directive 2006/112/EC should ensure that application of the VAT system complies more fully with the objective of the internal market, in cases where divergences in application have arisen or may arise which are incompatible with the proper functioning of such internal market. These implementing measures are legally binding only from the date of the entry into force of this Regulation and are without prejudice to the validity of the legislation and interpretation previously adopted by the Member States.

 

(3)         Changes resulting from the adoption of Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of supply of services[3] should be reflected in this Regulation.

 

(4)         The objective of this Regulation is to ensure uniform application of the current VAT system by laying down rules implementing Directive 2006/112/EC, in particular in respect of taxable persons, the supply of goods and services, and the place of taxable transactions. In accordance with the principle of proportionality as set out in Article 5(4) of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve this objective. Since it is binding and directly applicable in all Member States, uniformity of application will be best ensured by a Regulation.

 

(5)         These implementing provisions contain specific rules in response to selective questions of application and are designed to bring uniform treatment throughout the Union to those specific circumstances only. They are therefore not conclusive for other cases and, in view of their formulation, are to be applied restrictively.

 

(6)         If a non-taxable person changes residence and transfers a new means of transport, or a new means of transport returns to the Member State from which it was originally supplied exempt of VAT to the non-taxable person returning it, it should be clarified that such a transfer does not constitute the intra-Community acquisition of a new means of transport.

 

(7)         For certain services, it is sufficient for the supplier to demonstrate that the customer for these services, whether or not a taxable person, is located outside the Community for the supply of those services to fall outside the scope of VAT.

 

(8)         It should be specified that the allocation of a VAT identification number to a taxable person who makes or receives a supply of services to or from another Member State, and for which the VAT is payable solely by the customer, does not affect the right of that taxable person to benefit from non-taxation of his intra-Community acquisitions of goods. However, if the taxable person communicates his VAT identification number to the supplier in respect of an intra-Community acquisition of goods, he is in any event deemed to have opted to make those transactions subject to VAT.

 

(9)         The further integration of the internal market has led to an increased need for cooperation by economic operators established in different Member States across internal borders and the development of European economic interest groupings (EEIGs), constituted in accordance with Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG)[4]. It should therefore be clarified that EEIGs are taxable persons where they supply goods or services for consideration.

 

(10)     It is necessary to clearly define restaurant and catering services, the distinction between the two, and the appropriate treatment of these services.

 

(11)     In order to enhance clarity, the transactions identified as electronically supplied services should be listed without the lists being definitive or exhaustive.

 

(12)     It is necessary, on the one hand, to establish that a transaction which consists solely of assembling the various parts of a machine provided by a customer must be considered as a supply of services, and, on the other hand, to establish the place of such supply when the service is supplied to a non-taxable person.

 

(13)     The sale of an option as a financial instrument should be treated as a supply of services separate from the underlying transactions to which the option relates.

 

(14)     To ensure the uniform application of rules relating to the place of taxable transactions, concepts such as the place where a taxable person has established his business, fixed establishment, permanent address and the place where a person usually resides should be clarified. While taking into account the case law of the Court of Justice, the use of criteria which are as clear and objective as possible should facilitate the practical application of these concepts.

 

(15)     Rules should be established to ensure the uniform treatment of supplies of goods once a supplier has exceeded the distance selling threshold for supplies to another Member State.

 

(16)     It should be clarified that the journey of the means of transport determines the section of a passenger transport operation effected within the Community, and not the journey of the passengers within it.

 

(17)     In the case of intra-Community acquisition of goods, the right of the Member State of acquisition to tax the acquisition should remain unaffected by the VAT treatment of the transaction in the Member States of departure.

 

(18)     The correct application of the rules governing the place of supply of services relies mainly on the status of the customer as a taxable or non-taxable person, and on the capacity in which he is acting. In order to determine the customer’s status as a taxable person, it is necessary to establish what the supplier should be required to obtain as evidence from his customer.

 

(19)     It should be clarified that when services supplied to a taxable person are intended for private use, including use by the customer’s staff, that taxable person cannot be deemed to be acting in his capacity as a taxable person. Communication by the customer of his VAT identification number to the supplier is sufficient to establish that the customer is acting in his capacity as a taxable person, unless the supplier has information to the contrary. It should also be ensured that a single service acquired for the business but also used for private purposes is only taxed in one place.

 

(20)     In order to determine the customer’s place of establishment precisely, the supplier of the service is required to verify the information provided by the customer.

 

(21)     Without prejudice to the general rule on the place of supply of services to a taxable person, where services are supplied to a customer established in more than one place, there should be rules to help the supplier determine the customer’s fixed establishment to which the service is provided, taking account of the circumstances. If the supplier of the services is not able to determine that place, there should be rules to clarify the supplier’s obligations. Those rules should not interfere with or change the customer’s obligations.

 

(22)     The time at which the supplier of the service must determine the status, the capacity and the location of the customer, whether a taxable person or not, should also be specified.

 

(23)     Without prejudice to the general application of the principle with respect to abusive practices to the provisions of this Regulation, it is appropriate to draw specific attention to its application to certain provisions of this Regulation.

 

(24)     Certain specific services such as the assignment of television broadcasting rights in respect of football matches, the translation of texts, services for claiming VAT refunds, and services as an intermediary to a non-taxable person involve cross-border scenarios or even the participation of economic operators established outside the Community. The place of supply of these services needs to be clearly determined in order to create greater legal certainty.

 

(25)     It should be specified that services supplied by an intermediary acting in the name and on behalf of another person who takes part in the provision of accommodation in the hotel sector are not governed by the specific rule for the supply of services connected with immovable property.

 

(26)     Where various services supplied in the framework of organising a funeral form part of a single service, the rule on the place of supply should also be determined.

 

(27)     In order to ensure uniform treatment of supplies of cultural, artistic, sporting, scientific, educational, entertainment and similar services, admission to such events and ancillary services which are related to admission need to be defined.

 

(28)     It is necessary to clarify the treatment of restaurant services and catering services supplied on board a means of transport when passenger transport is being carried out on the territory of several countries.

 

(29)     Given that particular rules for the hiring of a means of transport depend on the duration of its possession or use, it is necessary not only to establish which vehicles should be considered means of transport, but also to clarify the treatment of such a supply where one successive contract follows another. It is also necessary to determine the place where a means of transport is actually put at the disposal of the customer.

 

(30)     In certain specific circumstances a credit or debit card handling fee which is paid in connection with a transaction should not reduce the taxable amount for that transaction.

 

(31)     It is necessary to clarify that the reduced rate may be applied to the hiring out of tents, caravans and mobile homes installed on camping sites and used as accommodation.

 

(32)     Vocational training or retraining should include instruction relating directly to a trade or profession as well as any instruction aimed at acquiring or updating knowledge for vocational purposes, regardless of the duration of a course.

 

(33)     Platinum nobles should be treated as being excluded from the exemptions for currency, bank notes and coins.

 

(34)     It should be specified that the exemption of the supply of services relating to the importation of goods the value of which is included in the taxable amount of those goods should cover transport services carried out during a change of residence.

 

(35)     Goods transported outside the Community by the purchaser thereof and used for the equipping, fuelling or provisioning of means of transport used for non-business purposes by persons other than natural persons, such as bodies governed by public law and associations, should be excluded from the exemption for export transactions.

 

(36)     To guarantee uniform administrative practices for the calculation of the minimum value for exemption on exportation of goods carried in the personal luggage of travellers, the provisions on such calculations should be harmonised.

 

(37)     It should be specified that the exemption for certain transactions treated as exports should also apply to services covered by the special scheme for electronically supplied services.

 

(38)     A body to be set up under the legal framework for a European Research Infrastructure Consortium (ERIC) should only qualify as an international body for the purposes of exemption from VAT where it fulfils certain conditions. The features necessary for it to benefit from exemption should therefore be identified.

 

(39)     Supplies of goods and services under diplomatic and consular arrangements, or to recognised international bodies, or to certain armed forces are exempt from VAT subject to certain limits and conditions. In order that a taxable person making such a supply from another Member State can establish that the conditions and limits for this exemption are met, an exemption certificate should be established.

 

(40)     Electronic import documents should also be admitted to exercise the right to deduct, where they fulfil the same requirements as paper-based documents.

 

(41)     Where a supplier of goods or services has a fixed establishment within the territory of the Member State where the tax is due, the circumstances under which that establishment should be liable for payment of VAT should be specified.

 

(42)     It should be clarified that a taxable person who has established his business within the territory of the Member State where the tax is due must be deemed to be a taxable person established in that Member State for the purposes of liability for the tax, even when that place of business is not involved in the supply of goods or services.

 

(43)     It should be clarified that every taxable person is required to communicate his VAT identification number, as soon as he has one, for certain taxable transactions in order to ensure fairer collection of the tax.

 

(44)     Weights for investment gold which are definitely accepted by the bullion market should be named and a common date for establishing the value of gold coins be determined to ensure equal treatment of economic operators.

 

(45)     The special scheme for taxable persons not established in the Community, supplying services electronically to non-taxable persons established or resident within the Community, is subject to certain conditions. Where those conditions are no longer fulfilled, the consequences thereof should, in particular, be made clear.

 

(46)     Certain changes result from Directive 2008/8/EC. Since those changes concern, on the one hand, the taxation of the long-term hiring of means of transport as from 1 January 2013 and, on the other, the taxation of electronically supplied services as from 1 January 2015, it should be specified that the corresponding Articles of this Regulation apply only as from those dates,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HAS ADOPTED THIS REGULATION:

 

CHAPTER I

 

SUBJECT MATTER

 

Article 1

 

This Regulation lays down measures for the implementation of certain provisions of Titles I to V, and VII to XII of Directive 2006/112/EC.

 

CHAPTER II

 

SCOPE

 

(TITLE I OF DIRECTIVE 2006/112/EC)

 

Article 2

 

The following shall not result in intra-Community acquisitions within the meaning of point (b) of Article 2(1) of Directive 2006/112/EC:

 

(a)     the transfer of a new means of transport by a non-taxable person upon change of residence provided that the exemption provided for in point (a) of Article 138(2) of Directive 2006/112/EC could not apply at the time of supply;

 

(b)     the return of a new means of transport by a non-taxable person to the Member State from which it was initially supplied to him under the exemption provided for in point (a) of Article 138(2) of Directive 2006/112/EC.

 

Article 3

 

Without prejudice to point (b) of the first paragraph of Article 59a of Directive 2006/112/EC, the supply of the following services is not subject to VAT if the supplier demonstrates that the place of supply determined in accordance with Subsections 3 and 4 of Section 4 of Chapter V of this Regulation is outside the Community:

 

(a)     from 1 January 2013, the service referred to in the first subparagraph of Article 56(2) of Directive 2006/112/EC;

 

(b)     from 1 January 2015, the services listed in Article 58 of Directive 2006/112/EC;

 

( c)    the services listed in Article 59 of Directive 2006/112/EC.

 

Article 4

 

A taxable person who is entitled to non-taxation of his intra-Community acquisitions of goods, in accordance with Article 3 of Directive 2006/112/EC, shall remain so where, pursuant to Article 214(1)(d) or (e) of that Directive, a VAT identification number has been attributed to that taxable person for the services received for which he is liable to pay VAT or for the services supplied by him within the territory of another Member State for which VAT is payable solely by the recipient.

 

However, if that taxable person communicates this VAT identification number to a supplier in respect of an intra-Community acquisition of goods, he shall be deemed to have exercised the option provided for in Article 3(3) of that Directive.

 

CHAPTER III

 

TAXABLE PERSONS

 

(TITLE III OF DIRECTIVE 2006/112/EC)

 

Article 5

 

A European Economic Interest Grouping (EEIG) constituted in accordance with Regulation (EEC) No 2137/85 which supplies goods or services for consideration to its members or to third parties shall be a taxable person within the meaning of Article 9(1) of Directive 2006/112/EC.

 

CHAPTER IV

 

TAXABLE TRANSACTIONS

 

(ARTICLES 24 TO 29 OF DIRECTIVE 2006/112/EC)

 

Article 6

 

1.      Restaurant and catering services mean services consisting of the supply of prepared or unprepared food or beverages or both, for human consumption, accompanied by sufficient support services allowing for the immediate consumption thereof. The provision of food or beverages or both is only one component of the whole in which services shall predominate. Restaurant services are the supply of such services on the premises of the supplier, and catering services are the supply of such services off the premises of the supplier.

 

2.      The supply of prepared or unprepared food or beverages or both, whether or not including transport but without any other support services, shall not be considered restaurant or catering services within the meaning of paragraph 1.

 

Article 7

 

1.      ‘Electronically supplied services’ as referred to in Directive 2006/112/EC shall include services which are delivered over the Internet or an electronic network and the nature of which renders their supply essentially automated and involving minimal human intervention, and impossible to ensure in the absence of information technology.

 

2.      Paragraph 1 shall cover, in particular, the following:

 

(a)     the supply of digitised products generally, including software and changes to or upgrades of software;

 

(b)     services providing or supporting a business or personal presence on an electronic network such as a website or a webpage;

 

(c)     services automatically generated from a computer via the Internet or an electronic network, in response to specific data input by the recipient;

 

(d)    the transfer for consideration of the right to put goods or services up for sale on an Internet site operating as an online market on which potential buyers make their bids by an automated procedure and on which the parties are notified of a sale by electronic mail automatically generated from a computer;

 

(e)     Internet Service Packages (ISP) of information in which the telecommunications component forms an ancillary and subordinate part (i.e. packages going beyond mere Internet access and including other elements such as content pages giving access to news, weather or travel reports; playgrounds; website hosting; access to online debates etc.);

 

(f)     the services listed in Annex I.

 

 

 

3.      Paragraph 1 shall not, in particular, cover the following:

 

(a)     radio and television broadcasting services;

 

(b)     telecommunications services;

 

(c)     goods, where the order and processing is done electronically;

 

(d)    CD-ROMs, floppy disks and similar tangible media;

 

(e)     printed matter, such as books, newsletters, newspapers or journals;

 

(f)     CDs and audio cassettes;

 

(g)     video cassettes and DVDs;

 

(h)     games on a CD-ROM;

 

(i)      services of professionals such as lawyers and financial consultants, who advise clients by e-mail;

 

(j)      teaching services, where the course content is delivered by a teacher over the Internet or an electronic network (namely via a remote link);

 

(k)     offline physical repair services of computer equipment;

 

(l)      offline data warehousing services;

 

(m)    advertising services, in particular as in newspapers, on posters and on television;

 

(n)     telephone helpdesk services;

 

(o)     teaching services purely involving correspondence courses, such as postal courses;

 

(p)     conventional auctioneers’ services reliant on direct human intervention, irrespective of how bids are made;

 

(q)     telephone services with a video component, otherwise known as videophone services;

 

(r)     access to the Internet and World Wide Web;

 

(s)     telephone services provided through the Internet.

 

 

 

Article 8

 

If a taxable person only assembles the various parts of a machine all of which were provided to him by his customer, that transaction shall be a supply of services within the meaning of Article 24(1) of Directive 2006/112/EC.

 

Article 9

 

The sale of an option, where such a sale is a transaction falling within the scope of point (f) of Article 135(1) of Directive 2006/112/EC, shall be a supply of services within the meaning of Article 24(1) of that Directive. That supply of services shall be distinct from the underlying transactions to which the services relate.

 

CHAPTER V

 

PLACE OF TAXABLE TRANSACTIONS

 

SECTION 1

 

Concepts

 

Article 10

 

1.      For the application of Articles 44 and 45 of Directive 2006/112/EC, the place where the business of a taxable person is established shall be the place where the functions of the business’s central administration are carried out.

 

2.      In order to determine the place referred to in paragraph 1, account shall be taken of the place where essential decisions concerning the general management of the business are taken, the place where the registered office of the business is located and the place where management meets.

 

Where these criteria do not allow the place of establishment of a business to be determined with certainty, the place where essential decisions concerning the general management of the business are taken shall take precedence.

 

3.      The mere presence of a postal address may not be taken to be the place of establishment of a business of a taxable person.

 

Article 11

 

1.      For the application of Article 44 of Directive 2006/112/EC, a ‘fixed establishment’ shall be any establishment, other than the place of establishment of a business referred to in Article 10 of this Regulation, characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to receive and use the services supplied to it for its own needs.

 

2.      For the application of the following Articles, a ‘fixed establishment’ shall be any establishment, other than the place of establishment of a business referred to in Article 10 of this Regulation, characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to provide the services which it supplies:

 

(a)     Article 45 of Directive 2006/112/EC;

 

(b)     from 1 January 2013, the second subparagraph of Article 56(2) of Directive 2006/112/EC;

 

(c)     until 31 December 2014, Article 58 of Directive 2006/112/EC;

 

(d)    Article 192a of Directive 2006/112/EC.

 

3.      The fact of having a VAT identification number shall not in itself be sufficient to consider that a taxable person has a fixed establishment.

 

Article 12

 

For the application of Directive 2006/112/EC, the ‘permanent address’ of a natural person, whether or not a taxable person, shall be the address entered in the population or similar register, or the address indicated by that person to the relevant tax authorities, unless there is evidence that this address does not reflect reality.

 

Article 13

 

The place where a natural person ‘usually resides’, whether or not a taxable person, as referred to in Directive 2006/112/EC shall be the place where that natural person usually lives as a result of personal and occupational ties.

 

Where the occupational ties are in a country different from that of the personal ties, or where no occupational ties exist, the place of usual residence shall be determined by personal ties which show close links between the natural person and a place where he is living.


SECTION 2

 

Place of supply of goods

 

(Articles 31 to 39 of Directive 2006/112/EC)

 

Article 14

 

Where in the course of a calendar year the threshold applied by a Member State in accordance with Article 34 of Directive 2006/112/EC is exceeded, Article 33 of that Directive shall not modify the place of supplies of goods other than products subject to excise duty carried out in the course of the same calendar year which are made before the threshold applied by the Member State for the calendar year then current is exceeded provided that all of the following conditions are met:

 

(a)     the supplier has not exercised the option provided for under Article 34(4) of that Directive;

 

(b)     the value of his supplies of goods did not exceed the threshold in the course of the preceding calendar year.

 

However, Article 33 of Directive 2006/112/EC shall modify the place of the following supplies to the Member State in which the dispatch or transport ends:

 

(a)     the supply of goods by which the threshold applied by the Member State for the calendar year then current was exceeded in the course of the same calendar year;

 

(b)     any subsequent supplies of goods within that Member State in that calendar year;

 

(c)     supplies of goods within that Member State in the calendar year following the calendar year in which the event referred to in point (a) occurred.

 

 

 

Article 15

 

The section of a passenger transport operation effected within the Community referred to in Article 37 of Directive 2006/112/EC, shall be determined by the journey of the means of transport and not by the journey completed by each of the passengers.

 

SECTION 3

 

Place of intra-Community acquisitions of goods

 

(Articles 40, 41 and 42 of Directive 2006/112/EC)

 

Article 16

 

Where an intra-Community acquisition of goods within the meaning of Article 20 of Directive 2006/112/EC has taken place, the Member State in which the dispatch or transport ends shall exercise its power of taxation irrespective of the VAT treatment applied to the transaction in the Member State in which the dispatch or transport began.

 

Any request by a supplier of goods for a correction in the VAT invoiced by him and reported by him to the Member State where the dispatch or transport of the goods began shall be treated by that Member State in accordance with its own domestic rules.

 

SECTION 4

 

Place of supply of services

 

(Articles 43 to 59 of Directive 2006/112/EC)

 

Subsection 1

 

Status of the customer

 

Article 17

 

1.      If the place of supply of services depends on whether the customer is a taxable or non-taxable person, the status of the customer shall be determined on the basis of Articles 9 to 13 and Article 43 of Directive 2006/112/EC.

 

2.      A non-taxable legal person who is identified or required to be identified for VAT purposes under point (b) of Article 214(1) of Directive 2006/112/EC because his intra-Community acquisitions of goods are subject to VAT or because he has exercised the option of making those operations subject to VAT shall be a taxable person within the meaning of Article 43 of that Directive.

 

Article 18

 

1.      Unless he has information to the contrary, the supplier may regard a customer established within the Community as a taxable person:

 

(a)     where the customer has communicated his individual VAT identification number to him, and the supplier obtains confirmation of the validity of that identification number and of the associated name and address in accordance with Article 31 of Council Regulation (EC) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax[5];

 

(b)     where the customer has not yet received an individual VAT identification number, but informs the supplier that he has applied for it and the supplier obtains any other proof which demonstrates that the customer is a taxable person or a non-taxable legal person required to be identified for VAT purposes and carries out a reasonable level of verification of the accuracy of the information provided by the customer, by normal commercial security measures such as those relating to identity or payment checks.

 

2.      Unless he has information to the contrary, the supplier may regard a customer established within the Community as a non-taxable person when he can demonstrate that the customer has not communicated his individual VAT identification number to him.

 

3.      Unless he has information to the contrary, the supplier may regard a customer established outside the Community as a taxable person:

 

(a)     if he obtains from the customer a certificate issued by the customer’s competent tax authorities as confirmation that the customer is engaged in economic activities in order to enable him to obtain a refund of VAT under Council Directive 86/560/EEC of 17 November 1986 on the harmonization of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in Community territory[6];

 

(b)     where the customer does not possess that certificate, if the supplier has the VAT number, or a similar number attributed to the customer by the country of establishment and used to identify businesses or any other proof which demonstrates that the customer is a taxable person and if the supplier carries out a reasonable level of verification of the accuracy of the information provided by the customer, by normal commercial security measures such as those relating to identity or payment checks.

 

Subsection 2

 

Capacity of the customer

 

Article 19

 

For the purpose of applying the rules concerning the place of supply of services laid down in Articles 44 and 45 of Directive 2006/112/EC, a taxable person, or a non-taxable legal person deemed to be a taxable person, who receives services exclusively for private use, including use by his staff, shall be regarded as a non-taxable person.

 

Unless he has information to the contrary, such as information on the nature of the services provided, the supplier may consider that the services are for the customer’s business use if, for that transaction, the customer has communicated his individual VAT identification number.

 

Where one and the same service is intended for both private use, including use by the customer’s staff, and business use, the supply of that service shall be covered exclusively by Article 44 of Directive 2006/112/EC, provided there is no abusive practice.

 

Subsection 3

 

Location of the customer

 

Article 20

 

Where a supply of services carried out for a taxable person, or a non-taxable legal person deemed to be a taxable person, falls within the scope of Article 44 of Directive 2006/112/EC, and where that taxable person is established in a single country, or, in the absence of a place of establishment of a business or a fixed establishment, has his permanent address and usually resides in a single country, that supply of services shall be taxable in that country.

 

The supplier shall establish that place based on information from the customer, and verify that information by normal commercial security measures such as those relating to identity or payment checks.

 

The information may include the VAT identification number attributed by the Member State where the customer is established.


Article 21

 

Where a supply of services to a taxable person, or a non-taxable legal person deemed to be a taxable person, falls within the scope of Article 44 of Directive 2006/112/EC, and the taxable person is established in more than one country, that supply shall be taxable in the country where that taxable person has established his business.

 

However, where the service is provided to a fixed establishment of the taxable person located in a place other than that where the customer has established his business, that supply shall be taxable at the place of the fixed establishment receiving that service and using it for its own needs.

 

Where the taxable person does not have a place of establishment of a business or a fixed establishment, the supply shall be taxable at his permanent address or usual residence.

 

Article 22

 

1.      In order to identify the customer’s fixed establishment to which the service is provided, the supplier shall examine the nature and use of the service provided.

 

Where the nature and use of the service provided do not enable him to identify the fixed establishment to which the service is provided, the supplier, in identifying that fixed establishment, shall pay particular attention to whether the contract, the order form and the VAT identification number attributed by the Member State of the customer and communicated to him by the customer identify the fixed establishment as the customer of the service and whether the fixed establishment is the entity paying for the service.

 

Where the customer’s fixed establishment to which the service is provided cannot be determined in accordance with the first and second subparagraphs of this paragraph or where services covered by Article 44 of Directive 2006/112/EC are supplied to a taxable person under a contract covering one or more services used in an unidentifiable and non-quantifiable manner, the supplier may legitimately consider that the services have been supplied at the place where the customer has established his business.

 

2.      The application of this Article shall be without prejudice to the customer’s obligations.

 

Article 23

 

1.      From 1 January 2013, where, in accordance with the first subparagraph of Article 56(2) of Directive 2006/112/EC, a supply of services is taxable at the place where the customer is established, or, in the absence of an establishment, where he has his permanent address or usually resides, the supplier shall establish that place based on factual information provided by the customer, and verify that information by normal commercial security measures such as those relating to identity or payment checks.

 

2.      Where, in accordance with Articles 58 and 59 of Directive 2006/112/EC, a supply of services is taxable at the place where the customer is established, or, in the absence of an establishment, where he has his permanent address or usually resides, the supplier shall establish that place based on factual information provided by the customer, and verify that information by normal commercial security measures such as those relating to identity or payment checks.


Article 24

 

1.      From 1 January 2013, where services covered by the first subparagraph of Article 56(2) of Directive 2006/112/EC, are supplied to a non-taxable person who is established in more than one country or has his permanent address in one country and his usual residence in another, priority shall be given to the place that best ensures taxation at the place of actual consumption when determining the place of supply of those services.

 

2.      Where services covered by Articles 58 and 59 of Directive 2006/112/EC are supplied to a non-taxable person who is established in more than one country or has his permanent address in one country and his usual residence in another, priority shall be given to the place that best ensures taxation at the place of actual consumption when determining the place of supply of those services.

 

Subsection 4

 

Common provision regarding determination of the status, the capacity and the location of the customer

 

Article 25

 

For the application of the rules governing the place of supply of services, only the circumstances existing at the time of the chargeable event shall be taken into account. Any subsequent changes to the use of the service received shall not affect the determination of the place of supply, provided there is no abusive practice.

 

Subsection 5

 

Supply of services governed by the general rules

 

Article 26

 

A transaction whereby a body assigns television broadcasting rights in respect of football matches to taxable persons, shall be covered by Article 44 of Directive 2006/112/EC.

 

Article 27

 

The supply of services which consist in applying for or receiving refunds of VAT under Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State[7] shall be covered by Article 44 of Directive 2006/112/EC.

 

Article 28

 

In so far as they constitute a single service, the supply of services made in the framework of organising a funeral shall fall within the scope of Articles 44 and 45 of Directive 2006/112/EC.

 

Article 29

 

Without prejudice to Article 41 of this Regulation, the supply of services of translation of texts shall fall within the scope of Articles 44 and 45 of Directive 2006/112/EC.

 

Subsection 6

 

Supply of services by intermediaries

 

Article 30

 

The supply of services of intermediaries as referred to in Article 46 of Directive 2006/112/EC shall cover the services of intermediaries acting in the name and on behalf of the recipient of the service procured and the services performed by intermediaries acting in the name and on behalf of the provider of the services procured.

 

Article 31

 

Services supplied by intermediaries acting in the name and on behalf of another person consisting of the intermediation in the provision of accommodation in the hotel sector or in sectors having a similar function shall fall within the scope of:

 

(a)     Article 44 of Directive 2006/112/EC if supplied to a taxable person acting as such, or a non-taxable legal person deemed to be a taxable person;

 

(b)     Article 46 of that Directive, if supplied to a non-taxable person.

 

 

 

Subsection 7

 

Supply of cultural, artistic, sporting, scientific, educational, entertainment, and similar services

 

Article 32

 

1.      Services in respect of admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events as referred to in Article 53 of Directive 2006/112/EC shall include the supply of services of which the essential characteristics are the granting of the right of admission to an event in exchange for a ticket or payment, including payment in the form of a subscription, a season ticket or a periodic fee.

 

2.      Paragraph 1 shall apply in particular to:

 

(a)     the right of admission to shows, theatrical performances, circus performances, fairs, amusement parks, concerts, exhibitions, and other similar cultural events;

 

(b)     the right of admission to sporting events such as matches or competitions;

 

(c)     the right of admission to educational and scientific events such as conferences and seminars.

 

3.      Paragraph 1 shall not cover the use of facilities such as gymnastics halls and suchlike, in exchange for the payment of a fee.


Article 33

 

The ancillary services referred to in Article 53 of Directive 2006/112/EC shall include services which are directly related to admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events and which are supplied separately for a consideration to a person attending an event.

 

Such ancillary services shall include in particular the use of cloakrooms or sanitary facilities but shall not include mere intermediary services relating to the sale of tickets.

 

Subsection 8

 

Supply of ancillary transport services and valuations of and work on movable property

 

Article 34

 

Except where the goods being assembled become part of immovable property, the place of the supply of services to a non-taxable person consisting only of the assembly by a taxable person of the various parts of a machine, all of which were provided to him by his customer, shall be established in accordance with Article 54 of Directive 2006/112/EC.

 

Subsection 9

 

Supply of restaurant and catering services on board means of transport

 

Article 35

 

The section of a passenger transport operation effected within the Community as referred to in Article 57 of Directive 2006/112/EC shall be determined by the journey of the means of transport and not by the journey completed by each of the passengers.

 

Article 36

 

Where restaurant services and catering services are supplied during the section of a passenger transport operation effected within the Community, that supply shall be covered by Article 57 of Directive 2006/112/EC.

 

Where restaurant services and catering services are supplied outside such a section but on the territory of a Member State or a third country or third territory, that supply shall be covered by Article 55 of that Directive.

 

Article 37

 

The place of supply of a restaurant service or catering service carried out within the Community partly during a section of a passenger transport operation effected within the Community, and partly outside such a section but on the territory of a Member State, shall be determined in its entirety according to the rules for determining the place of supply applicable at the beginning of the supply of the restaurant or catering service.


Subsection 10

 

Hiring of means of transport

 

Article 38

 

1.      ‘Means of transport’ as referred to in Article 56 and point (g) of the first paragraph of Article 59 of Directive 2006/112/EC shall include vehicles, whether motorised or not, and other equipment and devices designed to transport persons or objects from one place to another, which might be pulled, drawn or pushed by vehicles and which are normally designed to be used and actually capable of being used for transport.

 

2.      The means of transport referred to in paragraph 1 shall include, in particular, the following vehicles:

 

(a)     land vehicles, such as cars, motor cycles, bicycles, tricycles and caravans;

 

(b)     trailers and semi-trailers;

 

(c)     railway wagons;

 

(d)    vessels;

 

(e)     aircraft;

 

(f)     vehicles specifically designed for the transport of sick or injured persons;

 

(g)     agricultural tractors and other agricultural vehicles;

 

(h)     mechanically or electronically propelled invalid carriages.

 

3.      Vehicles which are permanently immobilised and containers shall not be considered to be means of transport as referred to in paragraph 1.

 

Article 39

 

1.      For the application of Article 56 of Directive 2006/112/EC, the duration of the continuous possession or use of a means of transport which is the subject of hiring shall be determined on the basis of the contract between the parties involved.

 

The contract shall serve as a presumption which may be rebutted by any means in fact or law in order to establish the actual duration of the continuous possession or use.

 

The fact that the contractual period of short-term hiring within the meaning of Article 56 of Directive 2006/112/EC is exceeded on grounds of force majeure shall have no bearing on the determination of the duration of the continuous possession or use of the means of transport.

 

2.      Where hiring of one and the same means of transport is covered by consecutive contracts between the same parties, the duration shall be that of the continuous possession or use of the means of transport provided for under the contracts as a whole.

 

For the purposes of the first subparagraph a contract and its extensions shall be consecutive contracts.

 

However, the duration of the short-term hire contract or contracts preceding a contract which is regarded as long-term shall not be called into question provided there is no abusive practice.

 

3.      Unless there is abusive practice, consecutive contracts between the same parties for different means of transport shall not be considered to be consecutive contracts for the purposes of paragraph 2.

 

Article 40

 

The place where the means of transport is actually put at the disposal of the customer as referred to in Article 56(1) of Directive 2006/112/EC, shall be the place where the customer or a third party acting on his behalf takes physical possession of it.

 

Subsection 11

 

Supply of services to non-taxable persons outside the Community

 

Article 41

 

The supply of services of translation of texts to a non-taxable person established outside the Community shall be covered by point (c) of the first paragraph of Article 59 of Directive 2006/112/EC.

 

CHAPTER VI

 

TAXABLE AMOUNT

 

(TITLE VII OF DIRECTIVE 2006/112/EC)

 

Article 42

 

Where a supplier of goods or services, as a condition of accepting payment by credit or debit card, requires the customer to pay an amount to himself or another undertaking, and where the total price payable by that customer is unaffected irrespective of how payment is accepted, that amount shall constitute an integral part of the taxable amount for the supply of the goods or services, under Articles 73 to 80 of Directive 2006/112/EC.

 

CHAPTER VII

 

RATES

 

Article 43

 

‘Provision of holiday accommodation’ as referred to in point (12) of Annex III to Directive 2006/112/EC shall include the hiring out of tents, caravans or mobile homes installed on camping sites and used as accommodation.


CHAPTER VIII

 

EXEMPTIONS

 

SECTION 1

 

Exemptions for certain activities in the public interest

 

(Articles 132, 133 and 134 of Directive 2006/112/EC)

 

Article 44

 

Vocational training or retraining services provided under the conditions set out in point (i) of Article 132(1) of Directive 2006/112/EC shall include instruction relating directly to a trade or profession as well as any instruction aimed at acquiring or updating knowledge for vocational purposes. The duration of a vocational training or retraining course shall be irrelevant for this purpose.

 

SECTION 2

 

Exemptions for other activities

 

(Articles 135, 136 and 137 of Directive 2006/112/EC)

 

Article 45

 

The exemption provided for in point (e) of Article 135(1) of Directive 2006/112/EC shall not apply to platinum nobles.

 

SECTION 3

 

Exemptions on importation

 

(Articles 143, 144 and 145 of Directive 2006/112/EC)

 

Article 46

 

The exemption provided for in Article 144 of Directive 2006/112/EC shall apply to transport services connected with the importation of movable property carried out as part of a change of residence.

 

SECTION 4

 

Exemptions on exportation

 

(Articles 146 and 147 of Directive 2006/112/EC)

 

Article 47

 

‘Means of transport for private use’ as referred to in point (b) of Article 146(1) of Directive 2006/112/EC shall include means of transport used for non-business purposes by persons other than natural persons, such as bodies governed by public law within the meaning of Article 13 of that Directive and associations.

 

Article 48

 

In order to determine whether, as a condition for the exemption of the supply of goods carried in the personal luggage of travellers, the threshold set by a Member State in accordance with point (c) of the first subparagraph of Article 147(1) of Directive 2006/112/EC has been exceeded, the calculation shall be based on the invoice value. The aggregate value of several goods may be used only if all those goods are included on the same invoice issued by the same taxable person supplying goods to the same customer.

 

SECTION 5

 

Exemptions relating to certain transactions treated as exports

 

(Articles 151 and 152 of Directive 2006/112/EC)

 

Article 49

 

The exemption provided for in Article 151 of Directive 2006/112/EC shall also apply to electronic services where these are provided by a taxable person to whom the special scheme for electronically supplied services provided for in Articles 357 to 369 of that Directive applies.

 

Article 50

 

1.      In order to qualify for recognition as an international body for the application of point (g) of Article 143(1) and point (b) of the first subparagraph of Article 151(1) of Directive 2006/112/EC a body which is to be set up as a European Research Infrastructure Consortium (ERIC), as referred to in Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC)[8] shall fulfil all of the following conditions:

 

(a)     it shall have a distinct legal personality and full legal capacity;

 

 

 

(b)     it shall be set up under and shall be subject to European Union law;

 

 

 

(c)     its membership shall include Member States and, where appropriate, third countries and inter-governmental organisations, but exclude private bodies;

 

 

 

(d)    it shall have specific and legitimate objectives that are jointly pursued and essentially non-economic in nature.

 

2.      The exemption provided for in point (g) of Article 143(1) and point (b) of the first subparagraph of Article 151(1) of Directive 2006/112/EC shall apply to an ERIC referred to in paragraph 1 where it is recognised as an international body by the host Member State.

 

The limits and conditions of such an exemption shall be laid down by agreement between the members of the ERIC in accordance with point (d) of Article 5(1) of Regulation (EC) No 723/2009. Where the goods are not dispatched or transported out of the Member State in which the supply takes place, and in the case of services, the exemption may be granted by means of a refund of the VAT in accordance with Article 151(2) of Directive 2006/112/EC.

 

Article 51

 

1.      Where the recipient of a supply of goods or services is established within the Community but not in the Member State in which the supply takes place, the VAT and/or excise duty exemption certificate set out in Annex II to this Regulation shall, subject to the explanatory notes set out in the Annex to that certificate, serve to confirm that the transaction qualifies for the exemption under Article 151 of Directive 2006/112/EC.

 

When making use of that certificate, the Member State in which the recipient of the supply of goods or services is established may decide to use either a common VAT and excise duty exemption certificate or two separate certificates.

 

2.      The certificate referred to in paragraph 1 shall be stamped by the competent authorities of the host Member State. However, if the goods or services are intended for official use, Member States may dispense the recipient from the requirement to have the certificate stamped under such conditions as they may lay down. This dispensation may be withdrawn in the case of abuse.

 

Member States shall inform the Commission of the contact point designated to identify the services responsible for stamping the certificate and the extent to which they dispense with the requirement to have the certificate stamped. The Commission shall inform the other Member States of the information received from Member States.

 

3.      Where direct exemption is applied in the Member State in which the supply takes place, the supplier shall obtain the certificate referred to in paragraph 1 of this Article from the recipient of the goods or services and retain it as part of his records. If the exemption is granted by means of a refund of the VAT, pursuant to Article 151(2) of Directive 2006/112/EC, the certificate shall be attached to the request for refund submitted to the Member State concerned.

 

CHAPTER IX

 

DEDUCTIONS

 

(TITLE X OF DIRECTIVE 2006/112/EC)

 

Article 52

 

Where the Member State of importation has introduced an electronic system for completing customs formalities, the term ‘import document’ in point (e) of Article 178 of Directive 2006/112/EC shall cover electronic versions of such documents, provided that they allow for the exercise of the right of deduction to be checked.


CHAPTER X

 

OBLIGATIONS OF TAXABLE PERSONS AND CERTAIN NON-TAXABLE PERSONS

 

(TITLE XI OF DIRECTIVE 2006/112/EC)

 

SECTION 1

 

Persons liable to pay the VAT

 

(Articles 192a to 205 of Directive 2006/112/EC)

 

Article 53

 

1.      For the application of Article 192a of Directive 2006/112/EC, a fixed establishment of the taxable person shall be taken into consideration only when it is characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to make the supply of goods or services in which it intervenes.

 

2.      Where a taxable person has a fixed establishment within the territory of the Member State where the VAT is due, that establishment shall be considered as not intervening in the supply of goods or services within the meaning of point (b) of Article 192a of Directive 2006/112/EC, unless the technical and human resources of that fixed establishment are used by him for transactions inherent in the fulfilment of the taxable supply of those goods or services made within that Member State, before or during this fulfilment.

 

Where the resources of the fixed establishment are only used for administrative support tasks such as accounting, invoicing and collection of debt-claims, they shall not be regarded as being used for the fulfilment of the supply of goods or services.

 

However, if an invoice is issued under the VAT identification number attributed by the Member State of the fixed establishment, that fixed establishment shall be regarded as having intervened in the supply of goods or services made in that Member State unless there is proof to the contrary.

 

Article 54

 

Where a taxable person has established his place of business within the territory of the Member State where the VAT is due, Article 192a of Directive 2006/112/EC shall not apply whether or not that place of business intervenes in the supply of goods or services he makes within that Member State.

 

 


SECTION 2

 

Miscellaneous provisions

 

(Articles 272 and 273 of Directive 2006/112/EC)

 

Article 55

 

For the transactions referred to in Article 262 of Directive 2006/112/EC, taxable persons to whom a VAT identification number has been attributed in accordance with Article 214 of that Directive and non-taxable legal persons identified for VAT purposes shall be required, when acting as such, to communicate their VAT identification number forthwith to those supplying goods and services to them.

 

The taxable persons referred to in point (b) of Article 3(1) of Directive 2006/112/EC, who are entitled to non-taxation of their intra-Community acquisitions of goods in accordance with the first paragraph of Article 4 of this Regulation, shall not be required to communicate their VAT identification number to those supplying goods to them when a VAT identification number has been attributed to them in accordance with Article 214(1)(d) or (e) of that Directive.

 

CHAPTER XI

 

SPECIAL SCHEMES

 

SECTION 1

 

Special scheme for investment gold

 

(Articles 344 to 356 of Directive 2006/112/EC)

 

Article 56

 

‘Weights accepted by the bullion markets’ as referred to in point (l) of Article 344(1) of Directive 2006/112/EC shall at least cover the units and the weights traded as set out in Annex III to this Regulation.

 

Article 57

 

For the purposes of establishing the list of gold coins referred to in Article 345 of Directive 2006/112/EC, ‘price’ and ‘open market value’ as referred to in point (2) of Article 344(1) of that Directive shall be the price and open market value on 1 April of each year. If 1 April does not fall on a day on which those values are fixed, the values of the next day on which they are fixed shall be used.


SECTION 2

 

Special scheme for non-established taxable persons supplying electronic services to non-taxable persons

 

(Articles 357 to 369 of Directive 2006/112/EC)

 

Article 58

 

Where, in the course of a calendar quarter, a non-established taxable person using the special scheme for electronically supplied services provided for in Articles 357 to 369 of Directive 2006/112/EC meets at least one of the criteria for exclusion laid down in Article 363 of that Directive, the Member State of identification shall exclude that non-established taxable person from the special scheme. In such cases the non-established taxable person may subsequently be excluded from the special scheme at any time during that quarter.

 

In respect of services supplied electronically prior to exclusion but during the calendar quarter in which exclusion occurs, the non-established taxable person shall submit a VAT return for the entire quarter in accordance with Article 364 of Directive 2006/112/EC. The requirement to submit this return shall have no effect on the requirement, if any, to be identified for VAT purposes in a Member State under the normal rules.

 

Article 59

 

Any return period (calendar quarter) within the meaning of Article 364 of Directive 2006/112/EC shall be a separate return period.

 

Article 60

 

Once a VAT return has been submitted as provided for under Article 364 of Directive 2006/112/EC, any subsequent changes to the figures contained therein may be made only by means of an amendment to that return and not by an adjustment to a subsequent return.

 

Article 61

 

Amounts on VAT returns made under the special scheme for electronically supplied services provided for in Articles 357 to 369 of Directive 2006/112/EC shall not be rounded up or down to the nearest whole monetary unit. The exact amount of VAT shall be reported and remitted.

 

Article 62

 

A Member State of identification which receives a payment in excess of that resulting from the VAT return submitted for electronically supplied services under Article 364 of Directive 2006/112/EC shall reimburse the overpaid amount directly to the taxable person concerned.

 

Where the Member State of identification has received an amount pursuant to a VAT return subsequently found to be incorrect, and that Member State has already distributed that amount among the Member States of consumption, those Member States shall directly reimburse the overpayment to the non-established taxable person and inform the Member State of identification of the adjustment to be made.

 

 

 

Article 63

 

Amounts of VAT paid under Article 367 of Directive 2006/112/EC shall be specific to the VAT return submitted pursuant to Article 364 of that Directive. Any subsequent amendments to the amounts paid may be effected only by reference to that return and may not be allocated to another return, or adjusted on a subsequent return.

 

CHAPTER XII

 

FINAL PROVISIONS

 

Article 64

 

Regulation (EC) No 1777/2005 is hereby repealed.

 

References made to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex IV.

 

Article 65

 

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

 

It shall apply from 1 July 2011.

 

However:

 

     point (a) of Article 3, point (b) of Article 11(2), Article 23(1) and Article 24(1) shall apply from 1 January 2013,

 

 

 

     point (b) of Article 3 shall apply from 1 January 2015,

 

 

 

     point (c) of Article 11(2) shall apply until 31 December 2014.

 

This Regulation shall be binding in its entirety and directly applicable in all Member States.

 

Done at Brussels, 15 March 2011.

 

 

 

 

 

For the Council

 

The President

 

MATOLCSY Gy.

 

 


ANNEX I

 

Article 7 of this Regulation

 

(1)     Point (1) of Annex II to Directive 2006/112/EC:

 

(a)     Website hosting and webpage hosting;

 

 

 

(b)     automated, online and distance maintenance of programmes;

 

 

 

(c)     remote systems administration;

 

 

 

(d)    online data warehousing where specific data is stored and retrieved electronically;

 

 

 

(e)     online supply of on-demand disc space.

 

 

 

 

 

(2)     Point (2) of Annex II to Directive 2006/112/EC:

 

(a)     Accessing or downloading software (including procurement/accountancy programmes and anti-virus software) plus updates;

 

 

 

(b)     software to block banner adverts showing, otherwise known as Bannerblockers;

 

 

 

(c)     download drivers, such as software that interfaces computers with peripheral equipment (such as printers);

 

 

 

(d)    online automated installation of filters on websites;

 

 

 

(e)     online automated installation of firewalls.

 

 

 

 

 

(3)     Point (3) of Annex II to Directive 2006/112/EC:

 

(a)     Accessing or downloading desktop themes;

 

 

 

(b)     accessing or downloading photographic or pictorial images or screensavers;

 

 

 

(c)     the digitised content of books and other electronic publications;

 

 

 

(d)    subscription to online newspapers and journals;

 

 

 

(e)     weblogs and website statistics;

 

 

 

(f)     online news, traffic information and weather reports;

 

 

 

(g)     online information generated automatically by software from specific data input by the customer, such as legal and financial data, (in particular such data as continually updated stock market data, in real time);

 

 

 

(h)     the provision of advertising space including banner ads on a website/web page;

 

 

 

(i)      use of search engines and Internet directories.

 

 

 

 

 

(4)     Point (4) of Annex II to Directive 2006/112/EC:

 

(a)     Accessing or downloading of music on to computers and mobile phones;

 

 

 

(b)     accessing or downloading of jingles, excerpts, ringtones, or other sounds;

 

 

 

(c)     accessing or downloading of films;

 

 

 

(d)    downloading of games on to computers and mobile phones;

 

 

 

(e)     accessing automated online games which are dependent on the Internet, or other similar electronic networks, where players are geographically remote from one another.

 

 

 

 

 

(5)     Point (5) of Annex II to Directive 2006/112/EC:

 

(a)     Automated distance teaching dependent on the Internet or similar electronic network to function and the supply of which requires limited or no human intervention, including virtual classrooms, except where the Internet or similar electronic network is used as a tool simply for communication between the teacher and student;

 

 

 

(b)     workbooks completed by pupils online and marked automatically, without human intervention.

 

 

 

 


ANNEX II

 

Article 51 of this Regulation

 

Image

 

Image


Explanatory notes

 

1.      For the supplier and/or the authorised warehousekeeper, this certificate serves as a supporting document for the tax exemption of the supplies of goods and services or the consignments of goods to the eligible bodies/individuals referred to in Article 151 of Directive 2006/112/EC and Article 13 of Directive 2008/118/EC. Accordingly, one certificate shall be drawn up for each supplier/warehousekeeper. Moreover, the supplier/warehousekeeper is required to keep this certificate as part of his records in accordance with the legal provisions applicable in his Member State.

 

 

 

2.     

 

(a)     The general specification of the paper to be used is as laid down in the Official Journal of the European Communities C 164 of 1.7.1989, p. 3.

 

         The paper is to be white for all copies and should be 210 millimetres by 297 millimetres with а maximum tolerance of 5 millimetres less or 8 millimetres more with regard to their length.

 

         For an exemption from excise duty the exemption certificate shall be drawn up in duplicate:

 

     one copy to be kept by the consignor,

 

 

 

     one copy to accompany the movement of the products subject to excise duty.

 

 

 

 

 

(b)     Any unused space in box 5.B. is to be crossed out so that nothing can be added.

 

 

 

(c)     The document must be completed legibly and in a manner that makes entries indelible. No erasures or overwriting are permitted. It shall be completed in a language recognised by the host Member State.

 

 

 

(d)    If the description of the goods and/or services (box 5.B of the certificate) refers to a purchase order form drawn up in a language other than a language recognised by the host Member Stale, a translation must be attached by the eligible body/individual.

 

 

 

(e)     On the other hand, if the certificate is drawn up in a language other than a language recognised by the Member State of the supplier/warehousekeeper, a translation of the information concerning the goods and services in box 5.B must be attached by the eligible body/individual.

 

 

 

(f)     A recognised language means one of the languages officially in use in the Member State or any other official language of the Union which the Member State declares can be used for this purpose.

 

 

 

 

 

3.      By its declaration in box 3 of the certificate, the eligible body/individual provides the information necessary for the evaluation of the request for exemption in the host Member State.

 

 

 

4.      By its declaration in box 4 of the certificate, the body confirms the details in boxes 1 and 3(a) of the document and certifies that the eligible individual is a staff member of the body.

 

 

 

5.     

 

(a)     The reference to the purchase order form (box 5.B of the certificate) must contain at least the date and order number. The order form should contain all the elements that figure at box 5 of the certificate. If the certificate has to be stamped by the competent authority of the host Member State, the order form shall also be stamped.

 

 

 

(b)     The indication of the excise identification number as defined in Article 22(2)(a) of Council Regulation (EC) No 2073/2004 of 16 November 2004 on administrative cooperation in the field of excise duties is optional; the VAT identification number or tax reference number must be indicated.

 

 

 

(c)     The currencies should be indicated by means of a three-letter code in conformity with the ISO code 4217 standard established by the International Standards Organisation[9].

 

 

 

 

 

6.      The abovementioned declaration by the eligible body/individual; shall be authenticated at box 6 by the stamp of the competent authority of the host Member State. That authority can make its approval dependent on the agreement of another authority in its Member State. It is up to the competent tax authority to obtain such an agreement.

 

 

 

7.      To simplify the procedure, the competent authority can dispense with the obligation on the eligible body to ask for the stamp in the case of exemption for official use. The eligible body should mention this dispensation at box 7 of the certificate.

 

 


ANNEX III

 

Article 56 of this Regulation

 

Unit

Weights traded

Kg

12,5/1

Gram

500/250/100/50/20/10/5/2,5/2

Ounce (1 oz = 31,1035 g)

100/10/5/1/1/2/1/4

Tael (1 tael = 1,193 oz)[10]

10/5/1

Tola (10 tolas = 3,75 oz)[11]

10

 

 


ANNEX IV

 

Correlation Table

 

Regulation (EC) No 1777/2005

This Regulation

Chapter I

Chapter I

Article 1

Article 1

Chapter II

Chapters III and IV

Section 1 of Chapter II

Chapter III

Article 2

Article 5

Section 2 of Chapter II

Chapter IV

Article 3(1)

Article 9

Article 3(2)

Article 8

Chapter III

Chapter V

Section 1 of Chapter III

Section 4 of Chapter V

Article 4

Article 28

Section 2 of Chapter III

Section 4 of Chapter V

Article 5

Article 34

Article 6

Articles 29 and 41

Article 7

Article 26

Article 8

Article 27

Article 9

Article 30

Article 10

Article 38(2)(b) and (c)

Article 11(1) and (2)

Article 7(1) and (2)

Article 12

Article 7(3)

Chapter IV

Chapter VI

Article 13

Article 42

Chapter V

Chapter VIII

Section 1 of Chapter V

Section 1 of Chapter VIII

Article 14

Article 44

Article 15

Article 45

Section 2 of Chapter V

Section 4 of Chapter VIII

Article 16

Article 47

Article 17

Article 48

Chapter VI

Chapter IX

Article 18

Article 52

Chapter VII

Chapter XI

Article 19(1)

Article 56

Article 19(2)

Article 57

Article 20(1)

Article 58

Article 20(2)

Article 62

Article 20(3), first subparagraph

Article 59

Article 20(3), second subparagraph

Article 60

Article 20(3), third subparagraph

Article 63

Article 20(4)

Article 61

Chapter VIII

Section 3 of Chapter V

Article 21

Article 16

Article 22

Article 14

Chapter IX

Chapter XII

Article 23

Article 65

Annex I

Annex I

Annex II

Annex III

 

 

 

 

 



[9]     As an indication, some codes relating to currencies currently used: EUR (euro), BGN (lev), CZK (Czech koruna), DKK (Danish krone), GBP (pound sterling), HUF (forint), LTL (litas), PLN (zloty), RON (Romanian leu), SEK (Swedish krona), USD (United States dollar).

 

[10]     Tael = a traditional Chinese unit of weight. The nominal fineness of a Hong Kong tael bar is 990 but in Taiwan 5 and 10 tael bars can be 999,9 fineness.

[11]     Tola = a traditional Indian unit of weight for gold. The most popular sized bar is 10 tola, 999 fineness.

 

 

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