2001/865/EC: Council Decision of 6 November 2001 authorising the Kingdom of Spain to apply a measure derogating from Article 11 of the sixth Directive 77/388/EEC on the harmonisation of the laws of Member States relating to turnover taxes
Date: 2001-11-06
Institutions: Council of the European Union
Subjects: Spain, VAT, derogation from EU law, tax harmonisation

L 323/24

EN

Official Journal of the European Communities

7.12.2001

COUNCIL DECISION

of 6 November 2001

authorising the Kingdom of Spain to apply a measure derogating from Article 11 of the sixth
Directive 77/388/EEC on the harmonisation of the laws of Member States relating to turnover
taxes

(2001/865/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community,

Having regard to the sixth Council Directive 77/388/EEC of 17
May 1977 on the harmonisation of the laws of Member States
relating to turnover taxes - Common system of value added
tax: uniform basis of assessment (1), hereinafter the ‘sixth VAT
Directive’ and in particular Article 27 thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

(4)

(5)

In a letter registered by the Commission's Secretariat
General on 7 March 2001, the Spanish Government
requested authorisation on the basis of Article 27 of the
sixth VAT Directive, to apply a measure derogating from
Article 11(A)(1)(a) of that Directive.

Under Article 27(1) of the sixth VAT Directive, the
Council, acting unanimously on a proposal from the
Commission, may authorise any Member State to intro-
duce special measures for derogation from the provi-
sions of the Directive, in order to simplify the procedure
for charging the tax or to prevent certain types of tax
evasion or avoidance.

In accordance with the said Article 27,
the other
Member States were informed of the request from the
Kingdom of Spain by letter of 15 March 2001.

Article 11(A)(1)(a) of the sixth VAT Directive states that,
in principle, the taxable amount in respect of supplies of
goods and services shall be everything which constitutes
the consideration which has been or is to be obtained by
the supplier for such supplies from the purchaser, the
customer or a third party.

The Kingdom of Spain, by way of derogation from these
provisions, has requested authorisation to include in the
taxable amount for a service of working investment gold

the value of the raw material provided by the purchaser
of the service and used to make the finished product.

The aim of the derogation is to avoid abuse of the
exemption for investment gold and thus to prevent
certain types of tax evasion or avoidance. It therefore
meets the conditions set out in Article 27 of the sixth
VAT Directive.

The forms of
tax evasion or avoidance in question
consist mainly of the purchase of VAT-exempt invest-
ment gold which is then worked to make jewellery or
other goods, with no VAT being paid on the value of the
investment gold involved in the transaction.

The derogation will expire on 31 December 2004, so
that an assessment can then be made as to whether it is
appropriate in the light of changes in the application of
the special system for investment gold established by
Directive 98/80/EC (2).

The derogation will have no negative impact on the
European Communities' own resources provided from
value added tax,

(6)

(7)

(8)

(9)

HAS ADOPTED THIS DECISION:

Article 1

The Kingdom of Spain is authorised, by way of derogation
from Article 11(A)(1)(a) of the sixth VAT Directive, to include
in the taxable amount in respect of the supply of goods or
services involving the working of non-taxed investment gold
the value of the gold contained in the finished product based
on the current market value of the investment gold.

Article 2

The authorisation granted under Article 1 shall expire on 31
December 2004.

(1) OJ L 145, 13.6.1977, p. 1. Directive last amended by Directive

2001/41/EC (OJ L 22, 24.1.2001, p. 17).

(2) OJ L 281, 17.10.1998, p. 31.

7.12.2001

EN

Official Journal of the European Communities

L 323/25

This Decision is addressed to the Kingdom of Spain.

Article 3

Done at Brussels, 6 November 2001.

For the Council

The President

D. REYNDERS