Considerations on COM(2022)701 - Amendment of Directive 2006/112/EC as regards VAT rules for the digital age

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dossier COM(2022)701 - Amendment of Directive 2006/112/EC as regards VAT rules for the digital age.
document COM(2022)701 EN
date March 11, 2025
 
table>(1)The rise of the digital economy has significantly impacted the operation of the Union system of value added tax (VAT), as it is unsuited to the new digital business models and does not allow for the full use of the data generated by digitalisation. Council Directive 2006/112/EC (3) should be amended to take account of that evolution.
(2)The VAT reporting obligations should be adapted to address the challenges of the platform economy and to reduce the need for multiple VAT registrations in the Union.

(3)The ‘VAT gap’ is the overall difference between the expected VAT revenue based on VAT legislation and ancillary regulations and the amount actually collected. In 2020, the VAT gap was estimated at EUR 93 billion in the Union. A significant part of the VAT gap consists of fraud, in particular missing trader intra-Community fraud, estimated in the range of EUR 40–60 billion. In the report on the final outcome of the Conference on the Future of Europe, which was published in May 2022, citizens called for measures to harmonise and coordinate tax policies within the Member States in order to prevent tax evasion and avoidance, as well as measures to promote cooperation between Member States to ensure that all companies in the Union pay their fair share of taxes. The VAT in the Digital Age initiative is consistent with those goals.

(4)In order to increase tax collection on cross-border transactions and to end the existing fragmentation stemming from the implementation by Member States of divergent reporting systems, rules should be laid down for Union digital reporting requirements. Such rules should ensure the provision of information to tax administrations on a transaction-by-transaction basis, in order to allow for the cross-matching of data, increase the control capabilities of tax administrations and create a deterrent effect with regard to non-compliance, while reducing compliance costs for businesses operating in different Member States and eliminating barriers within the internal market.

(5)To facilitate the automation of the reporting process for both taxable persons and tax administrations, the transactions to be reported to tax administrations should be documented electronically. The use of electronic invoicing should become the default system for issuing invoices. Nevertheless, Member States should be allowed to authorise other invoices for domestic supplies.

(6)In order to maximise interoperability, electronic invoices should in principle comply with the European standard laid down in Commission Implementing Decision (EU) 2017/1870 (4) (‘the European standard’), which fulfils the request made by the Commission pursuant to Article 3(1) of Directive 2014/55/EU of the European Parliament and the Council (5) to create a European standard for the semantic data model of the core elements of an electronic invoice. However, Member States should still be able to allow for other standards for domestic supplies.

(7)The Member States competent for laying down the invoicing rules should take measures, which could include accreditation schemes, to ensure that electronic invoices issued by taxable persons comply with the technical syntax and semantics of the standards allowed and contain all the necessary data determined by those standards. Those measures should be taken with respect to either taxable persons required to issue the invoice or third-party service providers, or both. The persons targeted by such measures will be responsible for their application. Nevertheless, those measures should not prevent taxable persons from choosing the means to issue and send their invoices to their customer, meaning either directly by themselves or with the intermediation of third parties, or, if available, through a public portal.

(8)The effectiveness of national digital reporting systems could be compromised if taxable persons do not comply with the obligation to issue electronic invoices with respect to the transactions subject to a reporting obligation. In light of the digitalisation of transactions and economic exchanges, and of the objectives of this Directive for the digitalisation of VAT, including with a view to ensuring a more effective fight against fraud, Member States should be allowed to provide that holding an electronic invoice issued in compliance with the required standard laid down in Directive 2006/112/EC is a substantive condition for entitlement to deduct or reclaim the VAT due or paid.

(9)The definition of ‘electronic invoice’ should be aligned with that used in Directive 2014/55/EU in order to achieve standardisation in the area of VAT reporting. As a result, the definition of ‘electronic invoice’ should cover only electronic invoices which will be issued, transmitted and received in a structured electronic format allowing for their automated and electronic processing. The obligation to use a structured format should cover, at least, the data to be reported. Therefore, hybrid invoices combining data embedded in a structured format and data embedded in an unstructured, human-readable format should be covered by the definition if such invoices include all the data to be reported in a structured format.

(10)For the VAT reporting system to be implemented in an efficient manner, it is necessary that the information reach the tax administration without delay. Therefore, the deadline for the issuance of an invoice for cross-border transactions should be set at 10 days after the chargeable event has taken place.

(11)The electronic invoice should facilitate the automated transmission to the tax administration of the data needed for control purposes. For that purpose, the electronic invoice should contain all the data that have to be transmitted to the tax administration under the digital reporting requirements in a structured format.

(12)The implementation of the electronic invoice as the default method for documenting transactions for VAT purposes would not be possible if the use of the electronic invoice remains subject to acceptance by the recipient, in particular in a business-to-business context. Therefore, for invoices issued to taxable persons and to non-taxable legal persons, such an acceptance should no longer be required for the issuance of electronic invoices complying with the European standard, unless a Member State has made use of the option to allow paper invoices or invoices in electronic formats other than electronic invoices. In cases where a Member State allows the use of other standards for supplies of goods or services within its territory, that Member State should be able to provide that the acceptance by the recipient of invoices issued in accordance with those standards is not required. When electronic invoices are issued to other persons, it should be possible for them to remain subject to acceptance by the recipient.

(13)The Commission has complied with its obligation to present a report to the European Parliament and the Council on the impact of the invoicing rules applicable from 1 January 2013 and notably on the extent to which they have effectively led to a decrease in administrative burdens for businesses, as required by Article 237 of Directive 2006/112/EC. As that obligation has already been fulfilled, it should be removed from that Directive.

(14)The obligation to submit recapitulative statements for the reporting of intra-Community transactions should be removed, as such transactions will be covered under the scope of the digital reporting requirements for cross-border supplies of goods and services, but with more detailed and timelier information.

(15)In order to facilitate the transmission of the invoice data to the tax administration by taxable persons, Member States should put at the disposal of the taxable persons the means necessary for such transmission. Those means should allow data to be sent by the taxable persons directly or by third parties on their behalf, or through a public portal, if available.

(16)While the information to be transmitted according to the digital reporting requirements for cross-border supplies of goods and services should be similar to what was transmitted through the recapitulative statements, it is necessary to require taxable persons to provide additional data, including bank details, so that tax administrations can follow not only the goods but also the financial flows.

(17)Placing an unnecessary administrative burden on taxable persons operating in different Member States should be avoided. Therefore, such taxable persons should be able to provide the required information to their tax administrations using the European standard. Member States should be allowed to provide for additional data-reporting formats in order to make it easier for certain taxable persons to provide the required information.

(18)In order to achieve the necessary harmonisation in the reporting of data on cross-border supplies of goods and services, the data to be reported should be the same in all Member States, without the possibility for Member States to request additional data.

(19)It is important that tax administrations have at their disposal the necessary data on all transactions subject to a reporting obligation. To ensure the achievement of that objective, it seems prudent to require the customer to report the transaction. That would allow for the cross-checking of the data with those provided by the supplier and would ensure that tax administrations have the necessary data in cases where the supplier has not complied with the reporting obligation. However, it is possible that the measures adopted by the Member States in relation to the issuance of invoices and reporting provide enough guarantees that the supplier will provide the data to the tax administration whenever an invoice is issued. Under those circumstances, Member States should be allowed to opt out of that rule and exclude the acquirer of the goods and the recipient of the services from the obligation to report the data on those transactions.

(20)Several Member States have put in place divergent reporting requirements for transactions within their territories, leading to significant administrative burdens for taxable persons which operate in different Member States, as they need to adapt their accounting systems to comply with those requirements. In order to avoid the costs resulting from such divergence, the systems implemented in Member States to report supplies of goods and services for consideration between taxable persons within their territory should comply with the features of the system implemented for cross-border supplies of goods and services. Member States should provide for the electronic means for the transmission of the information and, as is the case for cross-border supplies of goods and services, it should be possible for the taxable person to submit the data in accordance with the European standard, even though the relevant Member State could provide for additional standards to transmit the data. Member States should allow the data to be sent either by the taxable person directly or by a third party on behalf of that taxable person, and could allow the use of a public portal, if available.

(21)Member States should not be obliged to implement a real-time transaction-based digital reporting requirement for supplies of goods and services for consideration within their territory, other than those subject to the reporting requirements for cross-border supplies of goods and services. However, if they implement such a requirement in the future, they should do so in conformity with the new rules on digital reporting requirements for self-supplies and supplies of goods and services made between taxable persons within the territory of a Member State, which are aligned with the digital reporting requirements for cross-border supplies of goods and services. Member States which already have a reporting system for those transactions in place should adapt such systems to ensure that the data are reported in accordance with the digital reporting requirements for self-supplies and supplies of goods and services made between taxable persons within the territory of a Member State.

(22)In order to evaluate the effectiveness of the digital reporting requirements, the Commission should prepare an assessment report evaluating the impact of electronic invoicing and both the intra-Community and domestic digital reporting requirements on the effectiveness of the VAT collection and the reduction of the VAT gap and on the implementation and compliance costs for taxable persons and tax administrations, in order to verify whether the system has achieved its objectives or needs further adjustments.

(23)Member States should be able to continue to implement other measures to ensure the correct collection of VAT and to prevent evasion. However, they should not be able to impose additional general transaction-based reporting obligations on the transactions that are covered by the digital reporting requirements, unless it is required at a national level in order to prepare and submit a VAT return or for audit purposes. This means that Member States should be allowed to keep, along with the real-time reporting obligations set out in this Directive, their domestic reporting tools based, for example, on a SAF-T system, as well as reporting obligations which are not general, such as those concerning cash registers. Furthermore, the possibility for Member States to request information from taxable persons during audits should not be limited, as such information is obtained only upon request by the Member State and is not a result of active reporting by the taxable persons.

(24)In order to simplify the procedure for collecting VAT or to prevent certain forms of tax evasion or avoidance, several Member States have put in place, with previous authorisation on the basis of Article 395 of Directive 2006/112/EC where necessary, a domestic digital real-time transaction-based reporting obligation. Those Member States and the taxable persons established in their territories have recently made significant investments to ensure the functioning of those systems and the achievement of those objectives. Therefore, those Member States should exceptionally adapt their systems to ensure that the data are reported in accordance with the digital reporting requirements for self-supplies and supplies of goods and services made between taxable persons within their territory only by 2035, unless the assessment report from the Commission reveals shortcomings in the functioning of the cross-border digital reporting system. Such shortcomings could lead to a further extension of the deadline for alignment of their domestic reporting systems, if necessary.

(25)The platform economy has raised certain difficulties for the application of VAT rules, in particular as regards the establishment of the taxable status of the provider of the service and the level playing field between small and medium-sized enterprises (SMEs) and other businesses.

(26)The platform economy has led to an unjustified distortion of competition between supplies performed through online platforms that escape VAT taxation and supplies performed in the traditional economy that are subject to VAT. The distortion has been most acute in the two largest sectors of the platform economy behind e-commerce, namely the short-term accommodation rental sector and the sector of passenger transport by road. It is recognised, however, that that disparity can be more apparent in some Member States than in others.

(27)In order to address the distortion of competition in the short-term accommodation rental sector and the sector of passenger transport by road, rules should be laid down to change the role that platforms play in the collection of VAT, in becoming the ‘deemed supplier’. Under the deemed-supplier model, which is a legal fiction having no impact on rules outside the VAT legislation, platforms should be required to charge VAT where underlying suppliers do not charge VAT because they are, for example, non-taxable persons or taxable persons availing themselves of the special scheme for small enterprises.

(28)To preserve VAT neutrality, platforms should not be regarded as deemed suppliers, and therefore should not charge VAT, when underlying suppliers provide an identification number for VAT purposes and declare that they will charge the VAT otherwise due by the deemed supplier.

(29)Nevertheless, where Member States consider that there is no such distortion of competition in their territory, it is appropriate to give them the possibility to exclude taxable persons availing themselves within their territory of the special scheme for small enterprises, which otherwise would be systematically caught under the deemed-supplier rule, from the scope of that rule. Member States should be able to establish the conditions under which that option is exercised. When exercising that option, Member States should be able to apply it in a way that does not cause any disproportionate administrative burden on the person supplying short-term accommodation rental services or passenger transport services by road, or on the taxable person facilitating such a supply. In that respect, requiring information necessary to establish whether the underlying supplier makes use of the special scheme for small enterprises should not be regarded as disproportionate. However, where a Member State avails itself of such an option, that is without prejudice to the general responsibility of the platforms to comply with the deemed-supplier rule.

(30)To ensure a minimum degree of consistency between different national VAT systems with regard to the treatment of the provision of short-term accommodation rental services, such a rental service should be considered to have a similar function to the hotel sector if it is uninterrupted, provided to the same person and for a maximum of 30 nights. However, to adapt to different national specificities of the sector, Member States should have the possibility to make short-term accommodation rental services subject to certain criteria, conditions and limitations in accordance with their national laws.

(31)Member States interpret the place of supply of the facilitation service provided by the platforms to non-taxable persons differently. It is therefore necessary to clarify that rule and ensure a common criterion.

(32)In order to avoid situations in which platforms are included in the special scheme for travel agents in respect of transactions for which they are considered to be the deemed supplier, it should be clarified that those transactions are outside the scope of that special scheme. Similarly, it should be ensured that travel agents are not included in the deemed-supplier rule.

(33)Taking into account the existing divergent practices in Member States regarding the identification of taxable persons, it is appropriate to provide for a longer transition period for the entry into application of the deemed-supplier rule in order to ensure a smooth transition towards the new rule.

(34)This Directive is without prejudice to the rules laid down in other Union legal acts, in particular Regulation (EU) 2022/2065 of the European Parliament and of the Council (6), which regulates other aspects of the provision of services by online platforms, such as obligations applicable to providers of online platforms allowing consumers to conclude distance contracts with traders.

(35)Council Directives (EU) 2017/2455 (7) and (EU) 2019/1995 (8) amended Directive 2006/112/EC as regards the VAT rules governing the taxation of business-to-consumer cross-border e-commerce activity in the Union. Those amending Directives reduced distortions of competition, improved administrative cooperation and introduced a number of simplifications. While the amendments introduced by those Directives, which have applied since 1 July 2021, have been largely successful, there is a need for certain improvements.

(36)Certain existing rules should be clarified. This includes the rule on the calculation of the EUR 10 000 calendar-year-based threshold laid down in Article 59c of Directive 2006/112/EC, below which supplies of telecommunications, broadcasting and electronic (TBE) services and intra-Community distance sales of goods, supplied by a Union established supplier established in only one Member State, may remain subject to VAT in the Member State where that taxable person supplying those TBE services is established or where those goods are located at the time their dispatch or transport begins. Article 59c of Directive 2006/112/EC should be amended to ensure that only intra-Community distance sales of goods that are supplied from the Member State where the taxable person is established are included in the calculation of the EUR 10 000 threshold, but not distance sales made from a stock of goods in another Member State. Other minor amendments are necessary in order to clarify certain practical aspects, such as the provision of a website address.

(37)Directive 2006/112/EC should also be amended to clarify that all business-to-consumer supplies of services, supplied within the Union by taxable persons established outside the Union, fall within the scope of the special scheme for services supplied by taxable persons not established within the Union, namely the non-Union one-stop shop (‘OSS’) scheme (‘the non-Union OSS’), and not only supplies of services to Union established customers. Following the introduction of the new rules on VAT rates by means of Council Directive (EU) 2022/542 (9) and in order to cover exemptions under Article 151 of Directive 2006/112/EC regarding supplies of goods and services, inter alia, under diplomatic and consular arrangements and to certain other international bodies, it is also necessary to broaden the OSS schemes under Title XII, Chapter 6, of Directive 2006/112/EC by ensuring that zero-rated and VAT-exempt supplies with a right of deduction fall within the scope of those schemes. In addition, Directive 2006/112/EC should be amended to clarify the time by which amendments by the taxable person making use of the special schemes can be made to the relevant VAT returns across the three existing simplification schemes: the non-Union OSS, the Union OSS and the import OSS (‘IOSS’). That clarification should allow taxable persons registered for the schemes to make amendments to the relevant VAT returns up to the deadline of submission of those returns. Moreover, it should be clarified that amendments to previous VAT returns are allowed only in VAT returns for subsequent tax periods. Finally, the timing of the chargeable event in respect of supplies under the Union OSS and non-Union OSS simplification schemes should be clearly settled in order to avoid differences in the application of the rules among the Member States.

(38)VAT identification is, in general, required in every Member State where taxable transactions take place. However, to reduce the instances in which multiple VAT registrations are required, Directive (EU) 2017/2455 introduced into Directive 2006/112/EC a number of measures to minimise the need for multiple VAT registrations. In order to further reduce the need for multiple VAT registrations, a number of extension measures have been identified to support the objective of a single VAT registration in the Union. Rules should therefore be laid down to provide for those extension measures.

(39)Among other measures, Directive (EU) 2017/2455 extended the scope of the Mini OSS to become a broader OSS, covering all cross-border supplies of services to non-taxable persons taking place in the Union and all intra-Community distance sales of goods. Exceptionally, electronic interfaces, such as marketplaces and platforms, which become deemed suppliers for certain supplies of goods within the Union can also declare certain domestic supplies of goods in the Union OSS scheme. To support the objective of a single VAT registration in the Union, the scope of the Union OSS scheme should be further expanded to cover other supplies of goods, including domestic business-to-consumer supplies of goods in the Union by taxable persons who are not established in the Member State of consumption, ensuring that businesses do not need to register for VAT in each Member State where such supplies of goods to consumers take place.

(40)VAT is normally charged and accounted for by the supplier of the goods or services. However, in certain circumstances Member States may provide that, under the reverse charge mechanism, the recipient of the supply, rather than the supplier, is obliged to account for the VAT due. To further support the objective of a single VAT registration in the Union, rules should be laid down for the mandatory application of the reverse charge mechanism in situations where suppliers are not established and not identified for VAT purposes in the Member State in which VAT is due. When supplying goods or services to a person who is identified for VAT purposes in the Member State where the supply is taxable, those suppliers should apply the reverse charge. For control purposes, such supplies should be reported in the recapitulative statement. In addition to the obligatory use, Member States should also be able to apply the reverse charge mechanism to supplies by non-established traders who supply goods or services to a customer, regardless of the status of the latter. However, supplies that are subject to the margin scheme as set out in Title XII, Chapter 4, of Directive 2006/112/EC should be excluded from the reverse charge mechanism.

(41)Directive (EU) 2017/2455 introduced into Directive 2006/112/EC a specific simplification, namely the IOSS, which was designed to reduce the VAT compliance burden associated with the importation of certain low-value goods to consumers in the Union. In order to ensure uniform conditions for the implementation of Directive 2006/112/EC, implementing powers should be conferred on the Commission to better secure the correct use and the verification process of IOSS VAT identification numbers for the purposes of the exemption provided for in that Directive. That empowerment should allow the Commission to adopt an implementing act to introduce special measures to prevent certain forms of tax evasion or avoidance. Such special measures include linking the unique consignment number with the IOSS VAT identification number. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (10).

(42)The VAT registration of a supplier is required when that supplier is not identified for VAT purposes in the Member State where VAT is due. In particular, the transfer of a taxable person’s own goods to another Member State for, inter alia, the purposes of that person’s e-commerce-related activity triggers a need to register in the Member States from and to which the own goods are transferred. In line with the objective of a single VAT registration in the Union, the instances in which multiple VAT registrations are required should be further reduced by providing for the application of a new scheme in the framework of the OSS schemes. Such a new scheme should be specifically designed to simplify the VAT compliance obligations associated with certain transfers of own goods. Moreover, where a transfer of own goods is carried out by a taxable person on behalf of another taxable person, and insofar as the transfer is not done at the explicit request of the latter, the former should be obliged to communicate certain information regarding the transfer to the owner of those goods.

(43)Directive 2006/112/EC provides for the simplified VAT treatment of goods transferred under call-off stock arrangements where certain conditions are met. As the OSS simplification scheme for transfers of own goods is comprehensive and encompasses cross-border movements of goods that are currently covered by call-off stock arrangements under Article 17a of Directive 2006/112/EC, it is necessary to phase out those arrangements by including an end date prior to the complete removal of the call-off stock provisions in that Directive. It is therefore appropriate to set an end date of 30 June 2028, after which it will no longer be possible to effect any new call-off stock arrangements. For call-off stock arrangements commencing on or before 30 June 2028, the relevant conditions, including the 12-month time limit for transferring ownership of those goods to the intended purchaser, should continue to apply. In parallel with the inclusion of the new end date, it should be provided that those arrangements cease to apply on 30 June 2029, as they will no longer be required after that date.

(44)In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (11), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(45)Since the objectives of this Directive, namely bringing the VAT system into the digital era, cannot sufficiently be achieved by the Member States but can rather, by reason of the need to harmonise and encourage the use of digital reporting requirements, to improve the VAT treatment of platforms, and to reduce the instances in which a business is required to register in other Member States, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(46)Directive 2006/112/EC should therefore be amended accordingly,