amending Directives (EU) 2017/2455 and (EU) 2019/1995 as regards the dates of transposition and application due to the outbreak of the COVID-19 crisis

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

On 5 December 2017, the Council adopted Directive (EU) 2017/2455 (“the VAT e-commerce Directive”) amending Directive 2006/112/EC (“the VAT Directive”) and Directive 2009/132/EC as regards certain value added tax obligations for supplies of services and distance sales of goods.

On 21 November 2019, the Council adopted Directive (EU) 2019/1995 (“the second VAT e-commerce Directive”) amending the VAT Directive as regards provisions relating to distance sales of goods and certain domestic supplies of goods.

The date of application of the major part of this comprehensive package of legislation on modernising VAT for cross-border B2C e-commerce (“VAT e-commerce package”) was fixed to be 1 January 2021, allowing Member States sufficient time to adapt their legislation and IT systems.

The Commission presented a state of play of the readiness of Member States on 14 February 2020, whereby most Member States confirmed that they would be in a position to apply the rules by due date. Two Member States raised concerns and requested a postponement for the entry into application by one year or more. The Commission offered assistance to those Member States encountering difficulties in order to help them overcome these hurdles and remained confident that Member States would be ready by 1 January 2021.

However, due to the unforeseen outbreak of the COVID-19 crisis and its major impact, Member States had to shift priorities and re-allocate resources from the implementation of the VAT e-commerce package to fighting this pandemic. Therefore, other Member States cannot guarantee anymore to be able to finalise the preparatory work to apply the new rules by 1 January 2021, including a timely transposition of the aforementioned Directives into national law. The IT system at national level required to implement the rules laid down in the VAT e-commerce Directives seriously risks to be delayed and thus jeopardises several Member States to be ready to apply the new rules as of 1 January 2021. Similar concerns were raised by key economic operators, especially postal and courier operators, who urged the Commission to postpone the date of application of the VAT e-commerce package by 6 months due to the COVID-19 crisis.

The Commission held a meeting with Member States on 24 April 2020 to assess their readiness to apply the new rules as of 1 January 2021. The majority of Member States still confirmed to be ready to apply them on time, but stressed that the provisions on the functioning of the VAT e-commerce package are based on the principle that all Member States should be in a position to apply them correctly and would therefore be ready to support a postponement not exceeding 6 months.

Taking into account the above, the objective of this proposal is to postpone the 1 January 2021 date of application of the amendments set out in Council Directive (EU) 2017/2455 and Council Directive (EU) 2019/1995 by six months. The new date of application shall thus be 1 July 2021. A postponement of six months is suggested, because the delay should be kept as short as possible to minimise additional budgetary losses for Member States.

•Consistency with existing policy provisions in the policy area

The general objective of this proposal is the smooth functioning of the internal market, the competitiveness of EU business and the need to ensure effective taxation of the digital economy. The VAT e-commerce package is consistent with the future application of the destination principle for VAT as set out in the recent VAT Action plan supported by Council.

In addition to the VAT Action Plan, the VAT e-commerce package has been identified as a key initiative in the Digital Single Market Strategy ('DSM Strategy') as well as the Single Market strategy and the E-Government Action Plan.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

The proposal is based on Article 113 of the Treaty on the Functioning of the European Union (TFEU). This article provides for the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the European Economic and Social Committee, to adopt provisions for the harmonisation of Member States' rules in the area of indirect taxation.

•Subsidiarity (for non-exclusive competence)

This proposal postpones the 1 January 2021 date of application of the VAT e-commerce Directives, which have been adopted by Council in December 2017 and November 2019 and have to be transposed into national law by 31 December 2020 by all Member States. This proposal is made as a consequence of and reaction to the outbreak of the COVID-19 crisis, which confronts Member States with challenges at national level to tackle the current emergency situation and which causes some of them difficulties in guaranteeing a timely implementation of the required changes in their domestic IT systems. The provisions on the functioning of the VAT e-commerce package are based on the principle that all Member States should be in a position to apply them correctly.

Given that VAT is a tax harmonised at EU level, Member States cannot by themselves set different rules. Therefore, any initiative to amend the VAT rules for e-commerce, including a change of the date of application, requires a proposal by the Commission to amend the VAT Directive and cannot be achieved by unilateral actions at national level.