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:

(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;

(s) ‘payment service provider’ means any of the categories of payment service providers listed in points (a) to (d) of Article 1(1) of Directive (EU) 2015/2366 of the European Parliament and of the Council (¹) or a natural or legal person benefiting from an exemption in accordance with Article 32 of that Directive;

(t) ‘payment’ means, subject to the exclusions provided for in Article 3 of Directive (EU) 2015/2366, a ‘payment transaction’ as defined in point (5) of Article 4 of that Directive or a ‘money remittance’ as defined in point (22) of Article 4 of that Directive;

(u) ‘payer’ means ‘payer’ as defined in point (8) of Article 4 of Directive (EU) 2015/2366;

(v) ‘payee’ means ‘payee’ as defined in point (9) of Article 4 of Directive (EU) 2015/2366.

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

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:

(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 Article 54(2), (3) and (4);

(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 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:

(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.

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):

(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.

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

COLLECTION, STORAGE AND EXCHANGE OF SPECIFIC INFORMATION

SECTION 1

Automated access to specific information stored in national electronic systems

Article 17

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, 365, 369c, 369f, 369g, 369o, 369p, 369s and 369t of Directive 2006/112/EC;

(e) data on the VAT identification numbers referred to in 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), of that Directive during each month, per Member State of consumption as defined in Article 369l, second paragraph, point (4), of that Directive;

(f) 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;

(g) information which it collects pursuant to Article 284(3) and (4) and Article 284b of Directive 2006/112/EC.

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:

(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) 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);

(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 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: M5 (i) access is in connection with an investigation into suspected fraud or is to detect 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. M5 —————

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:

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

(b) 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;

(c) 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;