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)

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

(TITLE IV OF DIRECTIVE 2006/112/EC)

SECTION 1

Supply of goods

(Articles 14 to 19 of Directive 2006/112/EC)

Article 5a

For the application of Article 14(4) of Directive 2006/112/EC, goods shall be considered to have been dispatched or transported by or on behalf of the supplier, including where the supplier intervenes indirectly in the dispatch or transport of the goods, in particular in the following cases:

(a) where the dispatch or transport of the goods is subcontracted by the supplier to a third party who delivers the goods to the customer;

(b) where the dispatch or transport of the goods is provided by a third party but the supplier bears either the total or partial responsibility for the delivery of the goods to the customer;

(c) where the supplier invoices and collects the transport fees from the customer and further remits them to a third party who will arrange the dispatch or transport of the goods;

(d) where the supplier promotes by any means the delivery services of a third party to the customer, puts the customer and a third party in contact or otherwise provides to a third party the information needed for the delivery of the goods to the consumer.

However, goods shall not be considered to have been dispatched or transported by or on behalf of the supplier where the customer transports the goods himself or where the customer arranges the delivery of the goods with a third person and the supplier does not intervene directly or indirectly to provide or to help organise the dispatch or transport of those goods.

Article 5b

For the application of Article 14a of Directive 2006/112/EC, the term ‘facilitates’ means the use of an electronic interface to allow a customer and a supplier offering goods for sale through the electronic interface to enter into contact which results in a supply of goods through that electronic interface.

However, a taxable person is not facilitating a supply of goods where all of the following conditions are met:

(a) that taxable person does not set, either directly or indirectly, any of the terms and conditions under which the supply of goods is made;

(b) that taxable person is not, either directly or indirectly, involved in authorising the charge to the customer in respect of the payment made;

(c) that taxable person is not, either directly or indirectly, involved in the ordering or delivery of the goods.

Article 14a of Directive 2006/112/EC shall not apply to a taxable person who only provides any of the following:

(a) the processing of payments in relation to the supply of goods;

(b) the listing or advertising of goods;

(c) the redirecting or transferring of customers to other electronic interfaces where goods are offered for sale, without any further intervention in the supply.

Article 5c

For the application of Article 14a of Directive 2006/112/EC, a taxable person, who is deemed to have received and supplied the goods himself, shall not be held liable for the payment of VAT in excess of the VAT which he declared and paid on these supplies where all of the following conditions are met:

(a) the taxable person is dependent on information provided by suppliers selling goods through an electronic interface or by other third parties in order to correctly declare and pay the VAT on those supplies;

(b) the information referred to in point (a) is erroneous;

(c) the taxable person can demonstrate that he did not and could not reasonably know that this information was incorrect.

Article 5d

Unless he has information to the contrary, the taxable person deemed to have received and supplied the goods pursuant to Article 14a of Directive 2006/112/EC shall regard:

(a) the person selling goods through an electronic interface as a taxable person;

(b) the person buying those goods as a non-taxable person.

SECTION 2

Supply of services

(Articles 24 to 29 of Directive 2006/112/EC)

Article 6

Article 6a

Telecommunications services within the meaning of Article 24(2) of Directive 2006/112/EC shall cover, in particular, the following:

(a) fixed and mobile telephone services for the transmission and switching of voice, data and video, including telephone services with an imaging component (videophone services);

(b) telephone services provided through the internet, including voice over internet Protocol (VoIP);

(c) voice mail, call waiting, call forwarding, caller identification, three-way calling and other call management services;

(d) paging services;

(e) audiotext services;

(f) facsimile, telegraph and telex;

(g) access to the internet, including the World Wide Web;

(h) private network connections providing telecommunications links for the exclusive use of the client.

Telecommunications services within the meaning of Article 24(2) of Directive 2006/112/EC shall not cover the following:

(a) electronically supplied services;

(b) radio and television broadcasting (hereinafter ‘broadcasting’) services.

Article 6b

Paragraph 1 shall cover, in particular, the following:

(a) radio or television programmes transmitted or retransmitted over a radio or television network;

(b) radio or television programmes distributed via the internet or similar electronic network (IP streaming), if they are broadcast simultaneous to their being transmitted or retransmitted over a radio or television network.

Paragraph 1 shall not cover the following:

(a) telecommunications services;

(b) electronically supplied services;

(c) the provision of information about particular programmes on demand;

(d) the transfer of broadcasting or transmission rights;

(e) the leasing of technical equipment or facilities for use to receive a broadcast;

(f) radio or television programmes distributed via the internet or similar electronic network (IP streaming), unless they are broadcast simultaneous to their being transmitted or retransmitted over a radio or television network.

Article 7

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.

Paragraph 1 shall not cover the following:

(a) 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;

(t) tickets to cultural, artistic, sporting, scientific, educational, entertainment or similar events booked online;

(u) accommodation, car-hire, restaurant services, passenger transport or similar services booked online.

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.

Article 9a

In order to regard the provider of electronically supplied services as being explicitly indicated as the supplier of those services by the taxable person, the following conditions shall be met:

(a) the invoice issued or made available by each taxable person taking part in the supply of the electronically supplied services must identify such services and the supplier thereof;

(b) the bill or receipt issued or made available to the customer must identify the electronically supplied services and the supplier thereof.

For the purposes of this paragraph, a taxable person who, with regard to a supply of electronically supplied services, authorises the charge to the customer or the delivery of the services, or sets the general terms and conditions of the supply, shall not be permitted to explicitly indicate another person as the supplier of those services.

CHAPTER V

PLACE OF TAXABLE TRANSACTIONS

SECTION 1

Concepts

Article 10

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.

Article 11

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.

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.

Article 13a

The place where a non-taxable legal person is established, as referred to in Article 54(1), second subparagraph, Article 56(2), first subparagraph, and Articles 58 and 59 of Directive 2006/112/EC, shall be:

(a) the place where the functions of its central administration are carried out; or

(b) the place of any other establishment 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.

Article 13b

For the application of Directive 2006/112/EC, the following shall be regarded as ‘immovable property’:

(a) any specific part of the earth, on or below its surface, over which title and possession can be created;

(b) any building or construction fixed to or in the ground above or below sea level which cannot be easily dismantled or moved;

(c) any item that has been installed and makes up an integral part of a building or construction without which the building or construction is incomplete, such as doors, windows, roofs, staircases and lifts;

(d) any item, equipment or machine permanently installed in a building or construction which cannot be moved without destroying or altering the building or construction.

SECTION 2

Place of supply of goods

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

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

Article 18

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 (¹);

(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.

However, irrespective of information to the contrary, the supplier of telecommunications, broadcasting or electronically supplied services, or of services under Article 54(1), second subparagraph, of Directive 2006/112/EC, may regard a customer established within the Community as a non-taxable person as long as that customer has not communicated their individual VAT identification number to the supplier of those services.

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