Council Directive 2000/65/EC of 17 October 2000 amending Directive 77/388/EEC as regards the determination of the person liable for payment of value added tax
Date: 2000-10-17
Institutions: Council of the European Union
Subjects: EU Member State, VAT, application of EU law, goods and services, single market, third country

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Official Journal of the European Communities

21.10.2000

COUNCIL DIRECTIVE 2000/65/EC

of 17 October 2000

amending Directive 77/388/EEC as regards the determination of the person liable for payment of
value added tax

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 93 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the Economic and Social
Committee (3),

Whereas:

(1)

(2)

(3)

(4)

The present rules laid down by Article 21 of sixth
Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added
tax: uniform basis of assessment (4), as regards the deter-
mination of the person liable for payment of the tax,
create serious problems for business and, in particular,
for the smallest businesses.

the agricultural

Council Directive 76/308/EEC of 15 March 1976 on
mutual assistance for the recovery of claims resulting
from operations forming part of the system of financing
the European Agricultural Guidance and Guarantee Fund
levies and customs duties (5),
and of
Council Directive 77/799/EEC of 19 December 1977
concerning mutual assistance by the competent authori-
ties of the Member States in the field of direct taxa-
tion (6) and Council Regulation (EEC) No 218/92 of 27
January 1992 on administrative cooperation in the field
of indirect taxation (VAT) (7) organise mutual assistance
between the Member States as regards the correct estab-
lishment of VAT and its recovery.

The Commission report on the second phase of the
SLIM (simpler legislation for the internal market) project
recommends a study of the possibilities and different
ways of reforming the tax representation system laid
down by Article 21 of Directive 77/388/EEC.

The only change which can in fact substantially simplify
the common system of VAT in general and the deter-
mination of the person liable for payment of the tax in
particular is no longer to allow Member States the
option of requiring the appointment of a tax repres-
entative.

(1) OJ C 409, 30.12.1998, p. 10.
(2) OJ C 219, 30.7.1999, p. 91.
(3) OJ C 116, 28.4.1999, p. 14.
(4) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive

2000/17/EC (OJ L 84, 5.4.2000, p. 24).

(5) OJ L 73, 19.3.1976, p. 18. Directive as last amended by the 1994

Act of Accession.

(6) OJ L 336, 27.12.1977, p. 15. Directive as last amended by the

1994 Act of Accession.
(7) OJ L 24, 1.2.1992, p. 1.

(5)

(6)

Therefore,
the appointment of a tax representative
should in future only be an option for non-established
taxable persons.

Under Article 22 of Directive 77/388/EEC, Member
States may impose directly on non-established taxable
persons the same obligations as those which apply to
established taxable persons, including those which may
be laid down under Article 22(8).

(7) Where non-established taxable persons are nationals of
countries with which no legal instrument exists which
organises mutual assistance similar to that laid down
within the Community,
it will be possible for the
Member States to continue to require such non-estab-
lished taxable persons to designate a tax representative
to be the person liable for payment of the tax in their
stead or to designate an agent.

(8)

(9)

Member States will continue to be entirely free to desig-
nate the person liable for payment of
the tax on
importation.

Member States may continue to provide that someone
other than the person liable for payment of the tax shall
be held jointly and severally liable for payment of the
tax.

(10) Article 10 of Directive 77/388/EEC should also be clari-
fied in order to prevent certain cases of tax avoidance in
the case of continuous supplies.

(11) Directive 77/388/EEC should therefore be amended

accordingly,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 77/388/EEC is hereby amended as follows:

1. In the first subparagraph of Article 10(2), after the second

sentence, the following sentence shall be inserted:

‘Member States may in certain cases provide that continuous
supplies of goods and services which take place over a
period of time shall be regarded as being completed at least
at intervals of one year.’

2. In Article 28f (1) (which amends Article 17(2), (3) and (4) of
the same Directive), in Article 17(4)(a), the terms ‘Article 21
(1)(a)’ shall be replaced by ‘Article 21 (1)(a) and (c)’.

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3. In the fifth indent of Article 28c(E) ‘Other Exemptions’ (3),
the terms ‘the third subparagraph of Article 21(1)(a)’ shall
be replaced by ‘Article 21(1)(c)’.

4. In Article 28g (which replaces Article 21 of

the same
Directive), Article 21 shall be replaced by the following:

‘Article 21

Persons liable for payment for tax

Under the internal system, the following shall be liable

1.
to pay value added tax:

(a) the taxable person carrying out the taxable supply of
goods or of services, except for the cases referred to in
(b) and (c).

Where the taxable supply of goods or of services is
effected by a taxable person who is not established
within the territory of the country, Member States may,
under conditions determined by them,
lay down that
the person liable to pay tax is the person for whom the
taxable supply of goods or of services is carried out;

(b) taxable persons to whom services covered by Article
9(2)(e) are supplied or persons who are identified for
value added tax purposes within the territory of the
country to whom services covered by Article 28b(C),
(D), (E) and (F) are supplied, if the services are carried
out by a taxable person not established within the terri-
tory of the country;

be subject to conditions and procedures laid down by
each Member State;

(b) where the taxable transaction is effected by a taxable
person who is not established within the territory of the
country and no legal instrument exists, with the country
in which that taxable person is established or has his
seat, relating to mutual assistance similar in scope to
that laid down by Directives 76/308/EEC (*) and 77/
799/EEC (**) and by Council Regulation (EEC) No 218/
92 of 27 January 1992 on administrative cooperation in
the field of indirect taxation (VAT) (***), Member States
may take steps to provide that the person liable for
the tax shall be a tax representative
payment of
appointed by the non-established taxable person.

3.
In the situations referred to in paragraphs 1 and 2,
Member States may provide that someone other than the
person liable for payment of the tax shall be held jointly
and severally liable for payment of the tax.

On importation, value added tax shall be payable by
4.
the person or persons designated or accepted as being liable
by the Member State into which the goods are imported.

(*) OJ L 73, 19.3.1976, p. 18. Directive as last amended by

the 1994 Act of Accession.

(**) OJ L 336, 27.12.1977, p. 15. Directive as last amended

by the 1994 Act of Accession.

(***) OJ L 24, 1.2.1992, p. 1.’

(c) the person to whom the supply of goods is made when

the following conditions are met:

5. In Article 28h (which replaces Article 22 of

the same

Directive), Article 22 shall be amended as follows:

— the taxable operation is a supply of goods made
under the conditions laid down in Article 28c(E)(3),

— the person to whom the supply of goods is made is
another taxable person or a non-taxable legal person
identified for the purposes of value added tax within
the territory of the country,

— the invoice issued by the taxable person not estab-
lished within the territory of the country conforms
to Article 22(3).

However, Member States may provide a derogation from
this obligation, where the taxable person who is not
established within the territory of
the country has
appointed a tax representative in that country;

(d) any person who mentions the value added tax on an

invoice or other document serving as invoice;

(e) any person effecting a taxable intra-Community acquisi-

tion of goods.

By way of derogation from the provisions of para-

2.
graph 1:

(a) where the person liable to pay tax in accordance with
the provisions of paragraph 1 is a taxable person who is
not established within the territory of
the country,
Member States may allow him to appoint a tax repres-
entative as the person liable to pay tax. This option shall

(a) In paragraph 1(c), the first indent shall be replaced by

the following:

‘— every taxable person, with the exception of those
referred to in Article 28a(4), who within the terri-
tory of the country effects supplies of goods or of
services giving him the right of deduction, other
than supplies of goods or of services for which
tax is payable solely by the customer or the reci-
(b) or
pient in accordance with Article 21(1)(a),
(c). However, Member States need not
identify
certain taxable persons referred to in Article 4(3);’

(b) Paragraph 7 shall be replaced by the following:

‘7. Member States shall take the measures necessary
to ensure that those persons who, in accordance with
Article 21(1) and (2), are considered to be liable to
pay the tax instead of a taxable person not estab-
lished within the territory of the country comply with
the obligations relating to declaration and payment
set out in this Article; they shall also take the meas-
ures necessary to ensure that those persons who,
in
accordance with Article 21(3), are held to be jointly
the tax comply
and severally liable for payment of
with the obligations relating to payment set out
in
this Article.’

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6. Throughout

the Directive, notwithstanding points 2, 3
and 5 of this Article, the terms ‘Article 21(2)’ shall be
replaced by ‘Article 21(4)’.

the provisions of
national

law.

this Directive with the provisions of

Article 2

1. Member States shall bring into force the laws, regula-
tions and administrative provisions necessary to comply with
this Directive not later than 31 December 2001. They shall
forthwith inform the Commission thereof.

they shall
When Member States adopt
contain a reference to this Directive or shall be accompanied
by such reference on the occasion of their official publica-
tion. The methods of making such a reference shall be laid
down by the Member States.

these measures,

2. Member States shall communicate to the Commission
the text of the provisions of national law which they adopt
in the field governed by this Directive and a table correlating

Article 3

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

This Directive is addressed to the Member States.

Article 4

Done at Luxembourg, 17 October 2000.

For the Council

The President

L. FABIUS