# EUR-Lex - 52012PC0763 - EN

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# 52012PC0763

**Proposal for a COUNCIL REGULATION amending Implementing Regulation (EU) No 282/2011 as regards the place of supply of services /* COM/2012/0763 final - 2012/0354 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Grounds for and objectives of the
proposal

Article 397 of Council Directive
2006/112/EC on the common system of value added tax[1] (‘the VAT Directive’) provides
that ‘the Council, acting unanimously on a proposal from the Commission, shall
adopt the measures necessary to implement this Directive’.

On that basis, the Council adopted Council Implementing
Regulation (EU) No 282/2011[2]
(‘the VAT Implementing Regulation’), setting out rules on how to apply certain
provisions of the VAT Directive and also enshrining in law a number of
guidelines agreed by the VAT Committee since 1977.

Large parts of the VAT Implementing
Regulation relate to changes to the rules on the place of supply of services
introduced in 2008 (by the ‘VAT Package’[3]).
Some of those changes need further clarification, in particular those
concerning telecommunications, broadcasting or electronic services supplied to
non-taxable persons, which from 2015 become taxable in the Member State in
which the customer is established, has his permanent address or usually
resides. Suppliers of such services will need to identify and account for VAT
in that Member State.

Measures have already been taken to
implement the special schemes for those suppliers who are not established in
the Member State of taxation[4].
Further measures are needed to ensure that the rules governing the place of
supply of these services are applied uniformly. It is essential to amend the
VAT Implementing Regulation to lay down rules on how to apply the relevant provisions
of the VAT Directive.

These measures should be adopted by the Council
as soon as possible and certainly by the end of 2013, in order to give
businesses and the Member States sufficient time to prepare for the changes.

This proposal and the definitions it
contains do not preclude the outcome of ongoing discussions on applying reduced
VAT rates to online products and services.

General context

Telecommunications, broadcasting and
electronic services are, in general, taxed at the place where the customer is
established or resides[5].
Where the supplier is established within the EU and the customer is a
non-taxable person, the supply is, however, currently taxed at the place where
the supplier is established.

From 1 January 2015, all
telecommunications, broadcasting and electronic services will be taxable at the
place where the customer belongs (unless the rule on effective use and
enjoyment applies), even if the customer is a non-taxable person. For
non-taxable persons, EU and non-EU suppliers will need to identify where the
customer is established, has his permanent address or usually resides. Without
a VAT identification number (which is usually reserved for taxable persons) for
guidance, the supplier will have to rely to some extent on information from the
customer.

To ensure legal certainty, and avoid double
taxation or non-taxation, suppliers need clear and binding rules on how to do
this.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

Consultation of interested parties

To identify the areas where implementing
measures are necessary to ensure uniform application of the provisions of the
VAT Directive, Member States and businesses were consulted extensively during a
Fiscalis seminar. Views were also exchanged at a meeting of an expert group
consisting of representatives of the Member States, called Working Party
No 1[6],
and with businesses at an ad hoc expert meeting.

Collection and use of external
expertise

There was no need for external expertise.

Impact assessment

The measures concerned are of a purely
technical nature and are merely setting out the application of provisions
already adopted by the Council. Hence there is no need for an impact
assessment.

3.           LEGAL ELEMENTS OF THE PROPOSAL

Subsidiarity principle

The subsidiarity principle applies insofar
as the proposal does not fall under the exclusive competence of the EU. The
objectives of the proposal cannot be sufficiently achieved by the Member
States.

Even though the Member States are responsible
for the transposition of EU law into national legislation, it is essential that
the rules governing the place of supply of telecommunications, broadcasting and
electronic services are applied in a uniform manner in order to prevent
divergent application rules leading to double taxation or non-taxation.

For the reasons outlined above, only EU
action can ensure equal treatment for business and citizens in the European
Union. The proposal therefore complies with the subsidiarity principle.

Proportionality principle

The present amendments are necessary to
adapt Council Implementing Regulation (EU) No 282/2011 to the relevant provisions
of the VAT Directive which will apply as from 1 January 2015.

The new provisions relate to Directive
2008/8/EC amending Directive 2006/112/EC as regards the place of supply of
services, in particular Article 5 thereof.

The proposal therefore complies with the
proportionality principle.

4.           ADDITIONAL INFORMATION

Detailed explanation of the proposal

The proposed implementing measures relate
to the following types of services:

·
telecommunications, broadcasting and electronic
services

·
services connected with immovable property

·
distribution of tickets granting entry to
cultural, artistic, sporting, scientific, educational, entertainment and
similar events.

The proposals for each are as follows.

Telecommunications,
broadcasting and electronic services

From 1 January 2015, EU (and non-EU)
businesses will need to determine where their customer (non-taxable person)
belongs in order to ensure correct taxation of these services. In order to ensure
that the transition is smooth and coordinated at EU level, the Commission is
proposing measures for the implementation of the new rules. This follows
in-depth and close consultations with businesses and Member States. These
measures will not change the rules for telecommunications, broadcasting and
electronic services laid down by the VAT Directive but will clarify how those
rules should be applied in practice.

Articles 6a and 6b, together with the changes proposed to Article 7 and
Annex II, seek to clarify the nature of telecommunications,
broadcasting and electronic services. Each of these services should be defined
so as to set the boundaries of the new rules. A definition of broadcasting
services is therefore included together with examples to illustrate which
services are covered and which are not. To provide legal certainty, preference
is given to qualifying the services in positive terms. The existing list of
examples of electronic services has been adapted and similar lists drawn up for
telecommunications and broadcasting services. The lists are neither definitive
nor exhaustive.

Article 9a clarifies the treatment of broadcasting and electronic services
when supplied through the telecommunications network or via an interface or a
portal such as a marketplace for applications belonging to an intermediary (or
a third party intervening in the supply). The presumption is that in supplying
those services the intermediary acts on behalf of the supplier but in its own
name. Unless stated otherwise, the intermediary will be deemed to have received
and supplied those services. Where supply is made to a non-taxable person, the
intermediary then has to account for VAT in the Member State of its customer.

Article 13a specifies that, similar to a taxable person, a non-taxable legal
person is established at the place where his business is established or where
he has a fixed establishment.

Article 18 deals with the status of the customer. It allows a supplier to
treat a customer who does not communicate his VAT identification number as a
non-taxable person but only if the supplier does not have information to
suggest otherwise. Where the place of taxation depends on whether the customer
is a taxable or a non-taxable person, the risk of relying solely on the VAT
identification number is that the supply could be displaced if a taxable
customer chooses not to communicate the number. No such risk exists with
telecommunications, broadcasting and electronic services, which in any
circumstance will be taxable at the place of the customer. The new paragraph 2
clarifies that for such services, the supplier can regard any customer who does
not provide a VAT identification number as a non-taxable person. This will
allow the supplier to determine immediately and with certainty whether payment
of VAT falls to the supplier (as it does for supply to a non-taxable person, or
to a taxable person in the same Member State) or whether the customer needs to
account for the tax (because the supply is to a taxable person in another
Member State). However, this initial assessment will have to be reviewed and
corrected should the customer subsequently communicate his VAT identification number.

Article 24 deals with situations where the customer is established or resides
in more than one country. The aim is to avoid conflicts concerning jurisdiction
between Member States. The new paragraph 3 clarifies what should be
taken into account in order to determine the place that best ensures taxation
at the place of actual consumption.

Subsection 3a provides for non-rebuttable presumptions where it is impossible or
almost impossible for the supplier to establish the capacity of a customer or
to know where the customer is actually established, has his permanent address
or usually resides.

Article 24a deals with cases where a supplier of telecommunications,
broadcasting or electronic services provides those services to a customer at
certain locations. In cases such as a telephone booth or a visit to an internet
cafe, the supplier will not know who the customer is or may find it virtually
impossible to check where that customer actually belongs. As the physical
presence of the person receiving the service is needed for the service to be
rendered to him, the presumption is that the customer belongs in that country.

Article 24b deals with cases where use is made of pre-paid credits stored on a
SIM card to receive the services. As, in general, there is no collection of
personal details upon the sale of such cards, the supplier who is not
necessarily supplying the customer with the card, will not know who that
customer is. The country of issue of the SIM card is key to establish where the
customer is. As use will often be in that country, the presumption is that the
customer also belongs there for this purpose.

Subsection 3b provides for rebuttable presumptions where it is difficult, but not
impossible, for the supplier to know where the customer is actually
established, has his permanent address or usually resides. Where the supplier
has information to indicate that the customer belongs elsewhere, the
presumptions shall not apply.

Article 24c deals with cases where services are supplied to the customer via a
fixed land line connected with a residential building. As that is also where
the service will be used, the presumption is that the customer belongs there.

Article 24d covers cases where the customer makes use of a post-paid SIM card
to receive the services. As with pre-paid credits, the presumption is that the
customer belongs in the country of issue of the SIM card. Given that with
services received through the use of a post-paid SIM card, the supplier will
know the customer, there needs to be scope for this presumption to be rebutted.

Article 24e suggests that a customer who needs a device or a viewing card in
order to receive the services can be presumed to belong where the device is
installed or where the viewing card is sent for use. The presumption does not
apply in cases where the device is sold without installation or where the
viewing card is sold but not sent to the customer.

Article 24f covers all other cases where the presumption is that the customer
belongs at the place as established by the supplier through sufficient
evidence. This presumption applies to the extent that the supplier does not
have contradictory evidence.

Subsection 3c focuses on evidence for use in identifying customer location.

Article 24g sets out a list of items of information which can be used as
evidence by the supplier in identifying where a non-taxable customer belongs.
As there is no VAT number for guidance, the supplier needs to know what other
information can be relied on. The list, whilst not exhaustive, suggests which
are the most relevant items of information for use as evidence. To be
proportionate, the evidence used must be sufficient to determine with relative
certainty where the customer belongs but the burden of proof must not be
excessive. That is best achieved by setting a common level of evidence. Relying
on a single piece of evidence is not appropriate as that leaves too much scope
for differences in application. Two convergent separate pieces of evidence are
therefore required.

Services
connected with immovable property

Article 47 of the VAT Directive
provides for the place of supply of services connected with immovable property
to be the place where the property is located. Measures are included to clarify
the scope of that provision based on guidelines agreed by the VAT Committee.

Article 13b provides a definition of what constitutes immovable property. The
concept of immovable property is a common notion independent of national law. A
definition of this concept is needed to facilitate the correct application of
the place-of-supply rules. The definition is largely based on the case law of
the Court of Justice of the European Union.

Article 31a specifies that for services to be connected with immovable
property, the connection needs to be sufficiently direct (paragraph 1).
That covers services derived from an immovable property if the property makes
up a constituent element of the service and is central and essential for the
services supplied such as the granting of fishing permits; or provided to, or
directed towards, an immovable property having as their object the legal or
physical alteration of that property such as the services of architects or
estate agents. Examples are included to illustrate which services are connected
with immovable property (paragraph 2), and which are not (paragraph 3).

Article 31b provides that the hiring of equipment to a customer, with or
without accompanying staff, with a view to carrying out work on an immovable
property shall only be regarded as a service connected with immovable property
if the supplier assumes responsibility for the execution of the work. Where the
equipment is put at the disposal of the customer together with sufficient staff
for its operation, the presumption is that the supplier has assumed such
responsibility. In this case, the service must be taxed in the country where
that immovable property is located.

Article 31c clarifies that telecommunications, broadcasting or electronic
services provided by hotels or the like to their customers in connection with
accommodation will be treated for VAT purposes in the same way as the supply of
the accommodation itself. Depending on the way those services are charged, they
either form part of a single supply of accommodation (in the case of ‘all
inclusive’ prices) or are regarded as being ancillary to the supply of
accommodation.

Distribution
of tickets granting entry to cultural, artistic, sporting, scientific,
educational, entertainment or similar events

Entry to cultural, artistic, sporting,
scientific, educational, entertainment or similar events continues to be
taxable at the place where the event actually takes place. Where entry to such
events is granted to a taxable person, the supply is covered by Article 53
of the VAT Directive. Article 54 of the VAT Directive comprises the supply
of entry to such events to a non-taxable person.

Article 33a confirms that tax treatment is not influenced by the way in which
the distribution of tickets for such events is organised. In all circumstances,
the supply of tickets must be taxed at the place where the event takes place.

Transitional measures

Under Article 63 of the VAT Directive,
the chargeable event occurs and the VAT becomes chargeable when goods or
services are supplied. If payment is made on account under Article 65 of
the VAT Directive or if Member States have availed themselves of the option in
Article 66 of the VAT Directive, VAT can, however, become chargeable prior
to or soon after supply.

For telecommunications, broadcasting or
electronic services supplied around 1 January 2015, i.e. the time when the
new rules on the place of supply become applicable, conditions linked to the
supply or differences in application between Member States could result in
double taxation or non-taxation. To prevent this from happening, Article 2
of the proposal makes it clear that, no matter when the VAT becomes chargeable,
the decisive moment for determining the place of supply is when the services
are supplied or, for ongoing supplies giving rise to successive statements of
account or successive payments, when each supply is completed. That is when the
chargeable event occurs in any of the Member States. Those measures are
necessary to ensure a smooth transition to the rules put in place as of
1 January 2015.

2012/0354 (NLE)

Proposal for a

COUNCIL REGULATION

amending Implementing Regulation (EU) No 282/2011
as regards the place of supply of services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union,

Having regard to Council Directive
2006/112/EC of 28 November 2006 on the common system of value added tax[7], and in particular
Article 397 thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       Directive 2006/112/EC, as
amended by Directive 2008/8/EC[8],
provides that as from 1 January 2015, all telecommunications, broadcasting
and electronic services supplied to a non-taxable person are to be taxed in the
Member State in which the customer is established or has his permanent address
or usually resides regardless of where the taxable person supplying these
services is established. Most other services supplied to a non-taxable person continue
to be taxed in the Member State in which the supplier is established.

(2)       In order to determine
which services must be taxed in the Member State of the customer, it is
essential to define telecommunications, broadcasting and electronic services.
In particular, the concept of broadcasting services should be clarified drawing
from definitions laid down in Directive 2010/13/EU of the European Parliament
and of the Council of 10 March 2010 on the coordination of certain
provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual
Media Services Directive)[9].

(3)       To clarify matters,
transactions identified as electronic services have been listed in Implementing
Regulation (EU) No 282/2011, without the list being definitive or
exhaustive. The list should be updated and similar lists should be drawn up for
telecommunications and broadcasting services.

(4)       Where broadcasting and
electronic services are not supplied directly to a customer but through
telecommunications networks or via an interface or a portal belonging to another
taxable person, it is necessary to specify who makes the supply to the
customer.

(5)       To ensure uniform
application of the rules governing the place of supply of telecommunications,
broadcasting and electronic services, it is necessary to specify where a
non-taxable legal person should be considered to be established.

(6)       With a view to determining
who is liable for payment of the value added tax (VAT) on the supply of
telecommunications, broadcasting or electronic services, and taking into
account that the place of taxation is the same regardless of whether the
customer is a taxable or a non-taxable person, the supplier should be able to
determine the status of a customer solely based on whether the customer communicates
his individual VAT identification number. This status must, in accordance with the
general rules, be amended if such a communication is subsequently made by the
customer.

(7)       Where a non-taxable person
is established in more than one country or has his permanent address in one
country but usually resides in another, priority is to be given to the place
that best ensures taxation at the place of actual consumption. To avoid
conflicts concerning jurisdiction between Member States, the place of actual
consumption should be specified.

(8)       Rules should be
established to clarify the tax treatment of telecommunications, broadcasting
and electronic services supplied to a non-taxable person whose place of
establishment or residence is practically impossible to determine or cannot be
determined with certainty.

(9)       As the tax treatment of
telecommunications, broadcasting and electronic services supplied to a
non-taxable person depends on where the customer is established, has his
permanent address or usually resides, it is necessary to clarify what the
supplier should be required to obtain as evidence in identifying the location
of the customer.

(10)     In order to ensure uniform
treatment of supplies of services connected with immovable property, the
concept of immovable property needs to be defined. The proximity required for
there to be a connection with an immovable property should be specified and examples
of transactions identified as services connected with immovable property should
also be listed, without the list being definitive or exhaustive.

(11)     It is also necessary to
clarify the tax treatment of services putting equipment at a customer’s disposal
with a view to carrying out work on immovable property.

(12)     For practical reasons, it
should be clarified that telecommunications, broadcasting or electronic
services provided by a taxable person acting in his own name in connection with
the provision of accommodation in the hotel sector or in sectors with a similar
function should be treated, for VAT purposes, in the same way as the provision
of the accommodation itself. Both transactions should be treated as a single
supply in the case of an all-inclusive price. Telecommunications, broadcasting
or electronic services that are charged separately to the customer should be
treated as an ancillary supply to the accommodation.

(13)     In accordance with
Directive 2006/112/EC, admission to cultural, artistic, sporting, scientific,
educational, entertainment or similar events must in all circumstances be taxed
at the place where the event actually takes place. It should be made clear that
this also applies where tickets to such events are not sold directly by the
organiser but distributed through intermediaries.

(14)     According to Directive
2006/112/EC, VAT can become chargeable prior to or soon after the supply of
goods or services. In relation to telecommunications, broadcasting or
electronic services supplied during the period of transition to the new rules
on the place of supply, conditions linked to the supply or differences in
application between Member States could result in double taxation or
non-taxation. In order to avoid that happening, it is necessary to provide for
transitional provisions.

(15)     For the purposes of this
Regulation, it may be appropriate for Member States to adopt legislative
measures limiting certain rights and obligations laid down by Directive
95/46/EC of the European Parliament and of the Council of 24 October 1995
on the protection of individuals with regard to the processing of personal data
and on the free movement of such data[10]
in order to safeguard the interests referred to in Article 13(1)(e) of
that Directive where such measures are necessary and proportionate in view of
the risk of tax fraud and tax evasion in Member States and the need to ensure
the correct collection of VAT covered by this Regulation.

(16)     Implementing Regulation (EU) No 282/2011
should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

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

(1)        The following Articles 6a
and 6b are inserted:

‘Article 6a

1. 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, otherwise known as 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)     telephone helpdesk services by which
assistance is provided to users in case of problems with their radio or
television network, Internet or similar electronic network;

(h)     access to the Internet, including the
World Wide Web;

(i)      private network connections providing
telecommunications links for the exclusive use of the client;

(j)      audio and audio-visual content via
communications networks which is not provided by and under the editorial
responsibility of a media service provider;

(k)     the onward supply of the audio and
audio-visual output of a media service provider via communications networks by
someone other than the media service provider.

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

(a)     electronically supplied services;

(b)     broadcasting services;

(c)     telephone helpdesk services other than
those covered by point (g) of paragraph 1.

Article 6b

1. Radio and television broadcasting services
(hereinafter ‘broadcasting services’) shall include services consisting in
audio and audio-visual content such as programmes which are provided via
communications networks by and under the editorial responsibility of a media service
provider for simultaneous listening or viewing to the general public on the
basis of a programme schedule.

2. 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
broadcast live or simultaneous to their being transmitted or retransmitted over
a radio or television network.

3. Paragraph 1 shall not cover the following:

(a)     telecommunications services;

(b)     electronically supplied services;

(c)     ancillary services such as the
provision of information about particular programmes on demand;

(d)     transfer of broadcasting or
transmission rights;

(e)     leasing of technical equipment or
facilities for use to provide a broadcast.’

(2)        In Article 7,
paragraph 3 is amended as follows:

(a)        the introductory phrase is
replaced by the following:

‘Paragraph 1 shall not cover the
following:’

(b)        point (a) is replaced by
the following:

‘(a)    broadcasting services;’

(c)        point (n) is replaced by
the following:

‘(n)    telephone helpdesk services other than
those covered by point (g) of Article 6a(1);’

(d)        points (q), (r) and (s) are
deleted;

(e)        the following points (t) and
(u) are added:

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

(u)     online booking of hotel accommodation
and the like.’

(3)        In Chapter IV ‘Taxable
transactions’, the following Article 9a is added:

‘Article 9a

Where the broadcasting or electronic services
of a service provider are supplied through the telecommunications network, an interface
or a portal such as a marketplace for applications belonging to an intermediary
or a third party intervening in the supply, the intermediary or the third party
shall, for the application of Article 28 of Directive 2006/112/EC, be
presumed to be acting in their own name but on behalf of the service provider
unless, in relation to the final consumer, the service provider is explicitly
indicated as the supplier.

(4)        In Section 1 ‘Concepts’ of
Chapter V ‘Place of taxable transactions’, the following Articles 13a
and 13b are added:

‘Article 13a

The place where a non-taxable legal person is established,
as referred to in the first subparagraph of Article 56(2) and
Articles 58 and 59 of Directive 2006/112/EC, shall be the place where that
non-taxable legal person has established his business as defined in
Article 10 or has a fixed establishment as defined in Article 11(1)
of this Regulation.

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 making
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.’

(5)        In Article 18(2), the
following second subparagraph is added:

‘However, irrespective of information to the
contrary, the supplier of telecommunications, broadcasting or electronic
services may regard a customer established within the Community as a
non-taxable person as long as that customer has not communicated his individual
VAT identification number to the supplier.’

(6)        In Article 24, the
following paragraph 3 is added:

‘3. To determine the place which best ensures
taxation at the place of actual consumption within the meaning of paragraphs 1
and 2, account shall, in particular, be taken of the following:

(a)     for hiring of a means of transport,
other than short-term hiring, the place where the means of transport is put at
the disposal of the customer or a third party acting on his behalf unless there
is evidence that the means of transport is going to be used elsewhere;

(b)     for services other than the hiring of
means of transport, the place of business in the case of a non-taxable legal
person or the permanent address in the case of a natural person unless there is
evidence that the service is actually used at the place where that person
usually resides.’

(7)        In Section 4 ‘Place of
supply of services’ of Chapter V ‘Place of taxable transactions’, the
following Subsections 3a, 3b and 3c are inserted:

‘Subsection 3a

Irrebuttable presumptions for customer location

Article 24a

1. Where a supplier of telecommunications,
broadcasting or electronic services provides those services at a location such
as a telephone box, a telephone kiosk, a wi-fi hot spot, an internet café, a
restaurant or a hotel lobby where the physical presence of the recipient of the
service is needed for the service to be rendered to him, the presumption shall
be that, for the application of Articles 44, 58 and 59a of Directive
2006/112/EC, the customer is established, has his permanent address or usually
resides at the place of that location and the service is effectively used and
enjoyed there. This presumption may not be rebutted by any means in fact or
law.

2. If the location referred to in
paragraph 1 of this Article is on board a ship, aircraft or train carrying
out a passenger transport operation within the Community pursuant to
Articles 37 and 57 of Directive 2006/112/EC, the country of the location
shall be the country of departure of the passenger transport operation.

Article 24b

Where pre-paid credits stored on a SIM card are
used by a customer for telecommunications, broadcasting or electronic services,
the presumption shall be that, for the application of Articles 44, 58 and
59a of Directive 2006/112/EC, the customer is established, has his permanent
address or usually resides in the country identified by the mobile country code
of that SIM card and the service is effectively used and enjoyed there. This presumption
may not be rebutted by any means in fact or law.

Subsection 3b

rebuttable presumptions for customer location

Article 24c

For telecommunications, broadcasting or
electronic services supplied to a non-taxable person via a residential fixed
land line, the presumption shall be that, for the application of
Article 58 of Directive 2006/112/EC, the customer is established, has his
permanent address or usually resides at the place of installation of the fixed
land line. This presumption shall apply unless the supplier has information
indicating that the customer is established, has his permanent address or
usually resides elsewhere.

Article 24d

For telecommunications, broadcasting or
electronic services supplied to a non-taxable person through mobile networks
against subsequent collection of payment, the presumption shall be that, for
the application of Article 58 of Directive 2006/112/EC, the customer is
established, has his permanent address or usually resides in the country
identified by the mobile country code of the SIM card used when receiving those
services. This presumption shall apply unless the supplier has information
indicating that the customer is established, has his permanent address or
usually resides elsewhere.

Article 24e

For telecommunications, broadcasting or
electronic services, supplied to a non-taxable person, consisting in the
transmission of signals for which the use of a device or a viewing card is
needed, the presumption shall be that, for the application of Article 58
of Directive 2006/112/EC, the customer is established, has his permanent
address or usually resides at the place of installation of the device or if
that place is not known the place to which the viewing card is sent with a view
to being used there. This presumption shall apply unless the supplier has
information indicating that the customer is established, has his permanent
address or usually resides elsewhere.

Article 24f

Where services are supplied to a non-taxable
person under circumstances other than those referred to in Articles 24a,
24b, 24c, 24d and 24e of this Regulation, the presumption shall be that, for
the application of the first subparagraph of Article 56(2) and
Article 58 of Directive 2006/112/EC, the customer is established, has his
permanent address or usually resides at the place identified as such pursuant
to Article 24g of this Regulation.

Subsection 3c

Evidence for the identification of customer location

Article 24g

1. For the purposes of applying the rules
governing the place of supply laid down in the first subparagraph of
Article 56(2) and Article 58 of Directive 2006/112/EC, the following
shall, in particular, serve as evidence:

(a)     customer details such as the billing
address of the customer;

(b)     the Internet Protocol (IP) address of
the device used by the customer or any method of geolocation;

(c)     bank details such as the place where
the bank account used for payment is and the billing address of the customer
held by that bank;

(d)     the Mobile Country Code (MCC) of the
International Mobile Subscriber Identity (IMSI) stored on the Subscriber
Identity Module (SIM) card used by the customer;

(e)     the location of the residential fixed
land line through which the service is supplied to the customer;

(f)      in relation to a customer who is
selling goods via the Internet or similar electronic network, the place where
the transport or dispatch of the goods sold by that customer initially begins;

(g)     in relation to a customer who is
buying goods via the Internet or similar electronic network, the place where the
transport or dispatch of the goods bought by that customer finally ends;

(h)     registration details of the means of
transport hired by the customer, if registration of that means of transport is
required at the place where it is used, and other similar information;

(i)      other commercially relevant
information obtained by the supplier.

2. In identifying the place where the customer
is established, has his permanent address or usually resides, two separate
pieces of evidence shall be required provided that the evidence is not
contradictory.’

(8)        In Section 4 ‘Place of
supply of services’ of Chapter V ‘Place of taxable transactions’, the
following Subsection 6a is inserted:

‘Subsection 6a

Supply of services connected with immovable property

Article 31a

1. Services connected with immovable property
as referred to in Article 47 of Directive 2006/112/EC shall only include
those services that have a sufficiently direct connection with that property.
Services shall be regarded as having a sufficiently direct connection with
immovable property in the following cases:

(a)     where they are derived from an
immovable property and that property makes up a constituent element of the
service and is central and essential for the services supplied;

(b)     where they are provided to, or
directed towards, an immovable property having as their object the legal or
physical alteration of that property.

2. Paragraph 1 shall cover, in particular,
the following:

(a)     the drawing up of plans for a building
or parts of a building designated for a particular plot of land regardless of
whether or not the building is erected;

(b)     the provision of on‑site
supervision or security services;

(c)     the
construction of a building on land as well as construction and demolition work
performed on a building or parts of a building;

(d)     the construction of permanent
structures on land as well as construction and demolition work performed on
permanent structures such as pipeline systems for gas, water, sewerage and the
like;

(e)     work on land, including agricultural
services such as tillage, sowing, watering and fertilisation;

(f)      surveying and assessment of the risk
and integrity of immovable property;

(g)     the valuation of immovable property,
including where such service is needed for insurance purposes, to determine the
value of a property as collateral for a loan or to assess risk and damages in
disputes;

(h)     the leasing or letting of immovable
property other than that covered by point (c) of paragraph 3,
including the storage of goods for which a specific part of the property is
assigned for the exclusive use of the customer;

(i)      the provision of accommodation in the
hotel sector or in sectors with a similar function, such as holiday camps or
sites developed for use as camping sites, including the right to stay in a
specific place resulting from the conversion of timeshare usage rights and the
like;

(j)      the assignment and transmission of
rights other than those covered by points (h) and (i) to use the whole or
parts of an immovable property, including the licence to use part of a
property, such as the granting of fishing and hunting rights or access to
lounges in airports, or the use of an infrastructure for which tolls are
charged, such as a bridge or tunnel;

(k)     the maintenance, renovation and repair
of a building or parts of a building, including work such as cleaning, tiling,
papering and parqueting;

(l)      the maintenance, renovation and
repair of permanent structures such as pipeline systems for gas, water,
sewerage and the like;

(m)    the installation or assembly of
machines or equipment which, upon installation or assembly, qualify as
immovable property;

(n)     the maintenance and repair, inspection
and supervision of machines or equipment if those machines or equipment qualify
as immovable property;

(o)     property management other than
portfolio management of investments in real estate covered by point (h) of
paragraph 3, consisting in the operation of commercial, industrial or
residential real estate by or on behalf of the owner of the property;

(p)     intermediation in the sale or leasing
or letting of immovable property and in certain interests in immovable property
or rights in rem treated as tangible property, other than intermediation
covered by point (d) of paragraph 3;

(q)     legal services relating to the
conveyance or the transfer of a title to immovable property and to certain
interests in immovable property or rights in rem treated as tangible property, such
as notary work, or the drawing up of a contract to sell or acquire such
property, even if the underlying transaction resulting in the legal alteration
of the property is not carried through.

3. Paragraph 1 shall not cover the
following:

(a)     the drawing up of plans for a building
or parts of a building if not designated for a particular plot of land;

(b)     the storage of goods in an immovable
property if no specific part of the immovable property is assigned for the
exclusive use of the customer;

(c)     the provision of advertising, even if
it involves the use of immovable property;

(d)     intermediation in the provision of
hotel accommodation or accommodation in sectors with a similar function, such
as holiday camps or sites developed for use as camping sites, if the
intermediary is acting in the name and on behalf of another person;

(e)     telecommunications, broadcasting and
electronic services unless covered by Article 31c;

(f)      the provision of a stand location at
a fair or exhibition site together with other, related services to enable the
exhibitor to display items such as design of the stand, transport and storage
of the items, provision of machines, cable laying, insurance and advertising;

(g)     the installation or assembly, the
maintenance and repair, the inspection or the supervision of machines or
equipment which is not, or does not become, part of the immovable property;

(h)     portfolio management of investments in
real estate;

(i)      legal services other than those
covered by point (q) of paragraph 2, connected to contracts,
including advice given on the terms of a contract to transfer immovable
property, or to enforce such a contract, or to prove the existence of such a
contract, where such services are not specific to a transfer of a title on an
immovable property.

Article 31b

Where equipment is put at the disposal of a
customer with a view to carrying out work on immovable property, that
transaction shall only be a supply of services connected with immovable
property if the supplier assumes responsibility for the execution of the work.

A supplier who provides the customer with
equipment together with sufficient staff for its operation with a view to
carrying out work shall be presumed to have assumed responsibility for the
execution of that work. This presumption may be rebutted by any means in fact
or law in order to establish who is assuming responsibility for the execution
of the work.

Article 31c

The supply of telecommunications, broadcasting
or electronic services, provided by a taxable person acting in his own name
together with accommodation in the hotel sector or in sectors with a similar
function, such as holiday camps or sites developed for use as camping sites,
shall be regarded either as being part of a single transaction consisting in
the provision of accommodation, or as ancillary to the provision of
accommodation, depending on whether it is charged together with the
accommodation or separately.’

(9)        In Subsection 7 ‘Supply of
cultural, artistic, sporting, scientific, educational, entertainment, and
similar services’ of Section 4 ‘Place of supply of services
(Articles 43 to 59 of Directive 2006/112/EC)’ of Chapter 5 ‘Place of
taxable transactions’, the following Article 33a is added:

‘Article 33a

The supply of tickets granting access to a
cultural, artistic, sporting, scientific, educational, entertainment or similar
event by an intermediary acting in his own name but on behalf of the organiser
or by a taxable person, other than the organiser, acting on his own behalf, shall
be covered by Article 53 and Article 54(1) of Directive 2006/112/EC.’

(10)      In point (4) ‘Point (4)
of Annex II to Directive 2006/112/EC:’ of Annex I, the following
points (f) and (g) are added:

‘(f)     receiving radio or television
programmes distributed via a radio or television network, the Internet or
similar electronic network for listening to or viewing programmes at the moment
chosen by the user and at the user’s individual request on the basis of a
catalogue of programmes selected by the media service provider such as TV or
video on demand;

(g)     receiving radio or television
programmes via the Internet or similar electronic network (IP streaming) unless
the programmes are broadcast simultaneously over traditional radio and
television networks.’

Article 2

For telecommunications, radio and
television broadcasting or electronic services supplied by a supplier
established within the Community to a non-taxable person who is established,
has his permanent address or usually resides there, the following shall apply:

(a)          if the services are supplied or
the supply of services is completed, prior to 1 January 2015, the place of
supply shall be the place where the supplier is established as provided for in
Article 45 of Directive 2006/112/EC regardless of when the VAT becomes
chargeable;

(b)          if the services are supplied or
the supply of services is completed on 1 January 2015 or later, the place
of supply shall be governed by the place where the customer is established, has
his permanent address or usually resides, even if the VAT became chargeable
prior to that date.

Article 3

This Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

It shall apply from 1 January 2015.

This Regulation shall be binding in its
entirety and directly applicable in all Member States.

Done at Brussels,

For
the Council

The
President

[1]               OJ L 347, 11.12.2006, p. 1.

[2]               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)
(OJ L 77, 23.3.2011, p. 1).

[3]               Council Directive 2008/8/EC of 12 February 2008
amending Directive 2006/112/EC as regards the place of supply of services
(OJ L 44, 20.2.2008, p. 11).

[4]               Council Regulation (EU) No 967/2012 of 9 October 2012 amending
Implementing Regulation (EU) No 282/2011 as regards the special schemes for non-established taxable
persons supplying telecommunication services, broadcasting services or
electronic services to non-taxable persons (OJ L 290,
20.10.2012, p. 1) and Commission Implementing Regulation (EU)
No 815/2012 of 13 September 2012 laying down detailed rules for the
application of Council Regulation (EU) No 904/2010, as regards the special
schemes for non-established taxable persons supplying telecommunications,
broadcasting or electronic services to non-taxable persons (OJ L 249,
14.9.2012, p. 3).

[5]               Also referred to as the place where the customer
belongs.

[6]               The agenda, the working document and the report from
that meeting are available at:
http://ec.europa.eu/taxation_customs/taxation/vat/key_documents/discussions_member_states/index_en.htm.

[7]               OJ L 347, 11.12.2006, p. 1.

[8]               OJ L 44, 20.2.2008, p. 11.

[9]               OJ L 95, 15.4.2010, p. 1.

[10]             OJ L 281, 23.11.1995, p. 31.