This document is an excerpt from the EUR-Lex website
Document 02010R0904-20210701
Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (recast)
Consolidated text: Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (recast)
Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (recast)
02010R0904 — EN — 01.07.2021 — 004.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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COUNCIL REGULATION (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 268 12.10.2010, p. 1) |
Amended by:
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Official Journal |
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No |
page |
date |
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L 158 |
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10.6.2013 |
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L 348 |
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29.12.2017 |
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Amended by: COUNCIL REGULATION (EU) 2018/1541 of 2 October 2018 |
L 259 |
1 |
16.10.2018 |
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Amended by: COUNCIL REGULATION (EU) 2020/1108 of 20 July 2020 |
L 244 |
1 |
29.7.2020 |
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L 259 |
1 |
16.10.2018 |
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L 311 |
1 |
7.12.2018 |
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Corrected by:
COUNCIL REGULATION (EU) No 904/2010
of 7 October 2010
on administrative cooperation and combating fraud in the field of value added tax
(recast)
CHAPTER I
GENERAL PROVISIONS
Article 1
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.
Article 2
For the purposes of this Regulation, the following definitions shall apply:
‘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;
‘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;
‘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);
‘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;
‘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;
‘intra-Community transactions’ means the intra-Community supply of goods or services;
‘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;
‘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;
‘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;
‘VAT identification number’ means the number provided for in Articles 214, 215 and 216 of Directive 2006/112/EC;
‘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;
‘automatic exchange’ means the systematic communication of predefined information to another Member State, without prior request;
‘spontaneous exchange’ means the non-systematic communication, at any moment and without prior request, of information to another Member State;
‘person’ means:
a natural person;
a legal person;
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
any other legal arrangement of whatever nature and form, which has legal personality or not, and conducts transactions which are subject to VAT;
‘automated access’ means the possibility of access without delay to an electronic system in order to consult certain information contained therein;
‘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;
‘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;
‘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.
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
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
▼M3 M5 —————
Notwithstanding the first subparagraph, an enquiry into the amounts declared or those that should have been declared by a taxable person established in the Member State of the requested authority, in connection with supplies of goods or services which are made by this taxable person and which are taxable in the Member State of the requesting authority, may be refused solely on any of the following grounds:
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);
on the grounds provided for in Article 54(2), (3) and (4);
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 point (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.
If the requested Member State so requires, officials authorised by the requesting authorities shall take part in the administrative enquiry. Such administrative enquiry shall be carried out jointly and shall be conducted under the direction and according to the legislation of the requested Member State. The officials of the requesting authorities shall have access to the same premises and documents as the officials of the requested authority and, in so far as it is permitted under the legislation of the requested Member State for its officials, be able to interview taxable persons. The inspection powers of the officials of the requesting authorities shall be exercised for the sole purpose of carrying out the administrative enquiry.
Where the requested Member State has not required officials from the requesting Member States, the officials from any of the requesting Member States shall be able to be present during the administrative enquiry exercising the powers provided for in Article 28(2), in so far as conditions under the national law of the requested Member State are met. In any case, the officials from those requesting Member States shall be able to be present for consultation.
Where officials from the requesting Member States have to participate or have to be present, the administrative enquiry shall be carried out only when such participation or presence for the purposes of the administrative enquiry is ensured.
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
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
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:
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;
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;
where there is a risk of tax loss in the other Member State.
The Commission shall adopt by means of implementing acts the standard forms. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).
Article 14
The following shall be determined in accordance with the procedure provided for in Article 58(2):
the exact categories of information subject to automatic exchange;
the frequency of the automatic exchange for each category of information; and
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.
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
Each Member State shall store in an electronic system the following information:
information which it collects pursuant to Chapter 6 of Title XI of Directive 2006/112/EC;
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;
data on VAT identification numbers it has issued which have become invalid, and the dates on which those numbers became invalid; and
information which it collects pursuant to Articles 360, 361, 364, 365, 369c, 369f, 369g, 369o, 369p, 369s and 369t of Directive 2006/112/EC;
information which it collects pursuant to points (a) and (b) of Article 143(2) of Directive 2006/112/EC, as well as the country of origin, the country of destination, the commodity code, the currency, the total amount, the exchange rate, the item price and the net weight;
data on the VAT identification numbers referred to Article 369q of Directive 2006/112/EC it has issued and, per VAT identification number issued by any Member State, the total value of the imports of goods exempted under Article 143(1), point (ca), during each month.
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
Article 21
With respect to the information referred to in Article 17(1)(a), at least the following details shall be accessible:
VAT identification numbers issued by the Member State receiving the information;
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;
the VAT identification numbers of the persons who carried out the supplies of goods and services referred to in point (b) and the VAT identification numbers of the persons who submitted information in accordance with Article 262(2) of Directive 2006/112/EC about the persons holding a VAT identification number referred to in point (a);
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);
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 and, for each person who submitted information in accordance with Article 262(2) of Directive 2006/112/EC, his VAT identification number and the information he submitted about each person holding a VAT identification number issued by another Member State, under the following conditions:
access is in connection with an investigation into suspected fraud or is to detect fraud;
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.
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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.
With respect to the information referred to in point (f) of Article 17(1), the following details shall be accessible:
the VAT identification numbers issued by the Member State receiving the information;
the VAT identification numbers of the importer or of his tax representative who supplies the goods to persons holding a VAT identification number referred to in point (a) of this paragraph;
the country of origin, the country of destination, the commodity code, the total amount and the net weight of the imported goods followed by an intra-Community supply of goods from each person referred to in point (b) of this paragraph to each person holding a VAT identification number referred to in point (a) of this paragraph;
the country of origin, the country of destination, the commodity code, the currency, the total amount, exchange rate, the item price and the net weight of the imported goods followed by an intra-Community supply of goods from each person referred to in point (b) of this paragraph to each person holding a VAT identification number issued by another Member State under the following conditions:
access is in connection with an investigation into suspected fraud or is to detect fraud;
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.
The values referred to in points (c) and (d) of the first subparagraph shall be expressed in the currency of the Member State providing the information and shall relate to each goods item of the customs declaration submitted.
Article 21a
Every Member State shall grant the competent authority of any other Member State automated access to the following information in relation to national vehicle registrations:
identification data relating to vehicles;
identification data relating to the owners and the holders of the vehicle in whose name the vehicle is registered, as defined in the law of the Member State of registration.
Access to the information referred to in paragraph 1 shall be granted under the following conditions:
access is in connection with an investigation into suspected VAT fraud or is to detect VAT fraud;
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.
Article 22
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.
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:
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;
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 21a, 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 or any other similar secure network used to exchange the information referred to in Article 21a by electronic means.
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 DURING ADMINISTRATIVE ENQUIRIES AND ADMINISTRATIVE ENQUIRIES CARRIED OUT JOINTLY
Article 28
Where it is permitted under the legislation of the requested Member State the officials of the requesting Member States shall exercise the same inspection powers as those conferred on officials of the requested Member State.
The inspection powers of the officials of the requesting authorities shall be exercised for the sole purpose of carrying out the administrative enquiry.
By agreement between the requesting authorities and the requested authority, and in accordance with the arrangements laid down by the requested authority, the participating authorities may draft a common enquiry report.
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
CHAPTER IX
PROVIDING INFORMATION TO TAXABLE PERSONS
Article 31
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Article 32
CHAPTER X
EUROFISC
Article 33
Within the framework of Eurofisc, Member States shall:
establish a multilateral early warning mechanism for combating VAT fraud;
carry out and coordinate the swift multilateral exchange and the joint processing and analysis of targeted information on cross-border fraud in the subject areas in which Eurofisc operates (‘Eurofisc working fields’);
coordinate the work of the Eurofisc liaison officials as referred to in Article 36(1) of the participating Member States in acting on warnings and information received;
coordinate participating Member States' administrative enquiries of fraud identified by the Eurofisc liaison officials as referred to in Article 36(1) without the power to require Member States to carry out administrative enquiries.
Article 34
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, except in the circumstances provided for in Article 55(2).
Article 36
The liaison officials of the Member States shall:
agree on the establishment and termination of Eurofisc working fields;
examine any issues relating to the operational functioning of Eurofisc;
assess, at least on a yearly basis, the effectiveness and efficiency of the operation of Eurofisc activities;
approve the annual report, referred to in Article 37.
Eurofisc working field coordinators shall:
collate the information received from the participating Eurofisc liaison officials as agreed by the working field participants and shall make all information available to the other participating Eurofisc liaison officials; this information shall be exchanged by electronic means;
ensure that the information received from the participating Eurofisc liaison officials is processed and analysed together with the relevant targeted information on cross-border fraud communicated or collected pursuant to this Regulation, as agreed by the participants in the working field, and shall make the result available to all participating Eurofisc liaison officials;
provide feedback to all participating Eurofisc liaison officials;
submit an annual report on the activities of the working field to the liaison officials of the Member States.
Article 37
The Eurofisc chairperson shall submit an annual report on the activities of all of the working fields to the Committee referred to in Article 58(1).
The Commission shall adopt by means of implementing acts the procedural arrangements in relation to Eurofisc. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).
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
Article 40
Article 41
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
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
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.
Article 45
Article 46
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:
from 1 January 2015 until 31 December 2016 — 30 %;
from 1 January 2017 until 31 December 2018 — 15 %;
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.
SECTION 3
Provisions applicable from 1 July 2021
Article 47b
Article 47c
Article 47d
The Member State of identification shall also transmit the information provided for in paragraphs 2 of Article 369g of Directive 2006/112/EC to the competent authority of each other Member State from which goods are dispatched or transported and the information provided for in paragraph 3 of Article 369g of Directive 2006/112/EC to the competent authority of each Member State of establishment concerned.
Member States which have required the VAT 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 tax 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.
Article 47e
The Member State of identification shall without delay transmit by electronic means to the Member State of consumption the information needed to link each payment with a relevant VAT return.
Article 47f
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 tax 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 20 days after the end of the month during which the payment was received.
Article 47g
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 47f.
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 rates applicable for supplies of goods and services to which the special schemes apply.
Article 47h
Member States shall, upon importation of goods on which VAT is to be declared under the special scheme provided for in Section 4 of Chapter 6 of Title XII of Directive 2006/112/EC, carry out an electronic verification of the validity of the individual VAT identification number allocated by way of Article 369q of that Directive and communicated at the latest upon lodging of the import declaration.
Article 47i
Article 47j
The first subparagraph shall apply only in respect of an administrative enquiry concerning the special schemes.
In cases where the need for an administrative enquiry is agreed, the Member State of identification shall inform the other Member States.
This shall not preclude Member States to take any action in accordance with their national legislation.
Article 47k
Member States shall allow the Commission to extract information directly from messages generated by the computerised system referred to in Article 53 for aggregated statistical and diagnostic purposes pursuant to points (d) and (e) of Article 17(1). This information shall not contain data concerning individual taxable persons.
Article 47l
For the purpose of the uniform application of this Regulation, the Commission shall be empowered to adopt the following measures in accordance with the procedure referred to in Article 58(2):
the technical details, including a common electronic message, for providing the information referred to in Articles 47b(1), 47c(1), and 47d(1), and the standard form as referred to in Article 47i(3);
the technical details, including a common electronic message, for providing the information referred to in Articles 47b(2) and (3), 47c(2) and (3), 47d(2), 47e, 47f(2), 47i(1), (2) and (4), and 47j(1), (2) and (3) as well as the technical means for the transmission of this information;
the technical details for the transmission between Member States of the information referred to in Article 47g;
the technical details concerning the verification of the information referred to in Article 47h by the Member State of importation;
the aggregated statistical and diagnostic information to be extracted by the Commission as referred to in Article 47k as well as the technical means for the extraction of this information.
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
Where the Member State of establishment becomes aware that a taxable person making a request for refund of VAT, in accordance with Article 5 of Directive 2008/9/EC, has tax liabilities in that Member State of establishment, it may request the consent of the taxable person for the transfer of the VAT refund directly to this Member State in order to discharge the outstanding tax liabilities. Where the taxable person consents to this transfer, the Member State of establishment shall inform the Member State of refund of the amount regarding which the consent is obtained and the Member State of refund on behalf of the taxable person shall transfer this amount to the Member State of establishment. The Member State of establishment shall inform the taxable person whether the amount transferred amounts to either a full or a partial discharge of the tax liability in accordance with its national law and administrative practices. However, the transfer of the VAT refund to the Member State of establishment shall not affect the right of the Member State of refund to recover the liabilities that the taxable person has in the latter Member State.
Where the tax liabilities in the Member State of establishment are disputed, the transfer of the refund amounts can be used by the Member State of establishment as a retention measure, with the consent of the taxable person, in so far as an effective judicial review is ensured in that Member State.
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 ( 1 ).
CHAPTER XIII
RELATIONS WITH THE COMMISSION AND OTHER INSTITUTIONS, BODIES, OFFICES AND AGENCIES OF THE UNION
Article 49
CHAPTER XIV
RELATIONS WITH THIRD COUNTRIES
Article 50
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:
the competent authority of the Member State from which the information originates has consented to that communication; and
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
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
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:
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;
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.
Article 55
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 ( 2 ).
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.
All storage, processing or exchange of information referred to in this Regulation is subject to Regulations (EU) 2016/679 ( 3 ) and (EC) No 45/2001 ( 4 ) of the European Parliament and of the Council. 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 Articles 12 to 15, 17, 21 and 22 of Regulation (EU) 2016/679. Such restrictions shall be limited to what is strictly necessary in order to safeguard the interests referred to in point (e) of Article 23(1) of that Regulation, in particular to:
enable the competent authorities of the Member States to fulfil their tasks properly for the purposes of this Regulation; or
avoid obstructing official or legal enquiries, analyses, investigations or procedures for the purposes of this Regulation and to ensure that the prevention, investigation and detection of tax evasion and tax fraud is not jeopardised.
The processing and storage of information referred to in this Regulation shall be carried out only for the purposes referred to in Article 1(1) of this Regulation and the information shall not be further processed in a way that is incompatible with those purposes. The processing of personal data on the basis of this Regulation for any other purposes, such as commercial purposes, shall be prohibited. The storage periods of this information shall be limited to the extent necessary to achieve those purposes. The storage periods of the information referred to in Article 17 of this Regulation shall be determined as per the limitation periods provided for in the legislation of the Member State concerned but no longer than ten years.
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
For the purpose of applying this Regulation, Member States shall take all necessary measures to:
ensure effective internal coordination between the competent authorities;
establish direct cooperation between the authorities authorised for the purposes of such coordination;
ensure the smooth operation of the information exchange arrangements provided for in this Regulation.
CHAPTER XVI
FINAL PROVISIONS
Article 58
Article 59
Article 60
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;
This Regulation shall be binding in its entirety and directly applicable in all Member States.
▼M3 M5 —————
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 ) OJ L 393, 30.12.2006, p. 1.
( 2 ) OJ L 150, 10.6.2008, p. 28.
( 3 ) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
( 4 ) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
( 5 ) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).