Council Implementing Regulation (EU) 2019/2026 of 21 November 2019 amending Implementing Regulation (EU) No 282/2011 as regards supplies of goods or services facilitated by electronic interfaces and the special schemes for taxable persons supplying services to non-taxable persons, making distance sales of goods and certain domestic supplies of goods

COUNCIL IMPLEMENTING REGULATION (EU) 2019/2026

of 21 November 2019

amending Implementing Regulation (EU) No 282/2011 as regards supplies of goods or services facilitated by electronic interfaces and the special schemes for taxable persons supplying services to non-taxable persons, making distance sales of goods and certain domestic supplies of goods

Article 1

Implementing Regulation (EU) No 282/2011 is amended as follows:

(1) Chapter IV is amended as follows: (a) the heading of Chapter IV is replaced by the following: ‘TAXABLE TRANSACTIONS (TITLE IV OF DIRECTIVE 2006/112/EC) SECTION 1 Supply of goods (Articles 14 to 19 of Directive 2006/112/EC)’; (b) the following Articles are inserted: ‘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.’; (c) the following heading is inserted before Article 6: ‘Section 2 Supply of services (Articles 24 to 29 of Directive 2006/112/EC)’;

(2) Article 14 is deleted;

(3) the following Chapter is inserted: ‘CHAPTER Va CHARGEABLE EVENT AND CHARGEABILITY OF VAT (TITLE VI OF DIRECTIVE 2006/112/EC)

Article 41a

For the application of Article 66a of Directive 2006/112/EC, the time when the payment has been accepted means the time when the payment confirmation, the payment authorisation message or a commitment for payment from the customer is received by or on behalf of the supplier selling goods through the electronic interface, regardless of when the actual payment of money is made, whichever is the earliest.’;

(4) in Chapter X the following Section is inserted: ‘SECTION 1B Accounting (Articles 241 to 249 of Directive 2006/112/EC)

Article 54b

However, the term “facilitates” shall not cover a supply of goods or services where all of the following conditions are met: (a) the taxable person does not set, either directly or indirectly, any of the terms and conditions under which the supply is made; (b) the taxable person is not, either directly or indirectly, involved in authorising the charge to the customer in respect of the payment made; (c) the taxable person is not, either directly or indirectly, involved in the ordering or delivery of the goods or in the supply of the services.

(a) the processing of payments in relation to the supply of goods or services; (b) the listing or advertising of the goods or services; (c) the redirecting or transferring of customers to other electronic interfaces where goods or services are offered, without any further intervention in the supply.

Article 54c

(a) the records as set out in Article 63c of this Regulation, where the taxable person has opted to apply one of the special schemes provided for Chapter 6 of Title XII of Directive 2006/112/EC; (b) the records as set out in Article 242 of Directive 2006/112/EC, where the taxable person has not opted to apply any of the special schemes provided for in Chapter 6 of Title XII of Directive 2006/112/EC.

(a) the name, postal address and electronic address or website of the supplier whose supplies are facilitated through the use of the electronic interface and, if available: (i) the VAT identification number or national tax number of the supplier; (ii) the bank account number or number of virtual account of the supplier; (b) a description of the goods, their value, the place where the dispatch or transport of the goods ends, together with the time of supply and, if available, the order number or unique transaction number; (c) a description of the services, their value, information in order to establish the place of supply and time of supply and, if available, the order number or unique transaction number.’;

(5) Section 2 of Chapter XI is replaced by the following: ‘SECTION 2 Special schemes for taxable persons supplying services to non-taxable persons or making distance sales of goods or certain domestic supplies of goods (Articles 358 to 369x of Directive 2006/112/EC) Subsection 1 Definitions

Article 57a

For the purposes of this Section, the following definitions shall apply: (1) “non-Union scheme” means the special scheme for services supplied by taxable persons not established within the Community as set out in Section 2 of Chapter 6 of Title XII of Directive 2006/112/EC; (2) “Union scheme” means the special scheme for intra-Community distance sales of goods, for supplies of goods within a Member State made by electronic interfaces facilitating those supplies and for services supplied by taxable persons established within the Community but not in the Member State of consumption as set out in Section 3 of Chapter 6 of Title XII of Directive 2006/112/EC; (3) “import scheme” means the special scheme for distance sales of goods imported from third territories or third countries as set out in Section 4 of Chapter 6 of Title XII of Directive 2006/112/EC; (4) “special scheme” means the “non-Union scheme”, the “Union scheme” or the “import scheme” as the context requires; (5) “taxable person” means a taxable person referred to in Article 359 of Directive 2006/112/EC who is permitted to use the non-Union scheme, a taxable person referred to in Article 369b of that Directive who is permitted to use the Union scheme or a taxable person referred to in Article 369m of that Directive who is permitted to use the import scheme; (6) “intermediary” means a person defined in point (2) in the second paragraph of Article 369l of Directive 2006/112/EC. Subsection 2 Application of the Union scheme

Article 57b

(deleted) Subsection 3 Scope of the Union scheme

Article 57c

The Union scheme shall not apply to services supplied in a Member State where the taxable person has established his business or has a fixed establishment. The supply of those services shall be declared to the competent tax authorities of that Member State in the VAT return as provided for in Article 250 of Directive 2006/112/EC. Subsection 4 Identification

Article 57d

However, where the first supply of goods or services to be covered by the non-Union scheme or the Union scheme takes place before that date, the special scheme shall apply from the date of that first supply, provided the taxable person informs the Member State of identification of the commencement of his activities to be covered by the scheme no later than the tenth day of the month following that first supply.

Article 57e

The Member State of identification shall identify the taxable person using the Union scheme by means of his VAT identification number referred to in Articles 214 and 215 of Directive 2006/112/EC. The individual identification number allocated to an intermediary pursuant to Article 369q(2) of Directive 2006/112/EC shall enable him to act as intermediary on behalf of taxable persons making use of the import scheme. However, this number cannot be used by the intermediary to declare VAT on taxable transactions.

Article 57f

However, where that taxable person still fulfils the conditions for using that special scheme, he shall, in order to continue using that scheme, indicate as the new Member State of identification the Member State in which he has established his business or, if he has not established his business in the Community, a Member State where he has a fixed establishment. Where the taxable person using the Union scheme for the supply of goods is not established in the Community, he shall indicate as the new Member State of identification a Member State from which he dispatches or transports goods. Where the Member State of identification changes in accordance with the second subparagraph, that change shall apply from the date on which the taxable person ceases to have a place of business or a fixed establishment in the Member State previously indicated as the Member State of identification or from the date on which that taxable person ceases to dispatch or transport goods from that Member State.

However, where that taxable person or his intermediary still fulfils the conditions for using that special scheme, he shall, in order to continue using that scheme, indicate as the new Member State of identification the Member State in which he has established his business or, if he has not established his business in the Community, a Member State where he has a fixed establishment. Where the Member State of identification changes in accordance with the second subparagraph, that change shall apply from the date on which the taxable person or his intermediary ceases to have a place of business or a fixed establishment in the Member State previously indicated as the Member State of identification.

Article 57g

VAT obligations relating to supplies of goods or services arising after the date on which the cessation became effective shall be discharged directly with the tax authorities of the Member State of consumption concerned.

Subsection 5 Reporting obligations

Article 57h

(a) the cessation of his activities covered by a special scheme; (b) any changes to his activities covered by a special scheme whereby he no longer meets the conditions necessary for using that special scheme; (c) any changes to the information previously provided to the Member State of identification.

Subsection 6 Exclusion

Article 58