Council Regulation (EC) No 792/2002 of 7 May 2002 amending temporarily Regulation (EEC) No 218/92 on administrative cooperation in the field of indirect taxation (VAT) as regards additional measures regarding electronic commerce
Date: 2002-05-07
Institutions: Council of the European Union
Subjects: VAT, administrative cooperation, electronic commerce, exchange of information

15.5.2002

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Official Journal of the European Communities

L 128/1

I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 792/2002

of 7 May 2002

amending temporarily Regulation (EEC) No 218/92 on administrative cooperation in the field of
indirect taxation (VAT) as regards additional measures regarding electronic commerce

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)

Council Directive 2002/38/EC of 7 May 2002 amending
and amending temporarily Directive 77/388/EEC as
regards the value added tax arrangements applicable to
radio and television broadcasting services and certain
for
electronically supplied services (4) provides
the
framework for
in the
supplies
Community by taxable persons who are neither estab-
lished nor required to be identified for tax purposes
within the Community.

electronic

taxing

The Member State of consumption has primary respon-
sibility for assuring the compliance with their obliga-
tions by non-established suppliers. To this end,
the
information necessary to operate the special scheme for
electronically supplied services that is provided for in
Article 26c 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 assess-
ment (5) must be transmitted to those Member States.

It is necessary to provide that the value added tax due in
respect of such supplies transferred to accounts desig-
nated by the Member States of consumption.

The rules laid down in Directive 77/388/EEC require the
non-established
services
referred to in the last indent of Article 9(2)e of the
Directive to charge VAT to his customer, established or

taxable person supplying

(1) OJ C 337 E, 28.11.2000, p. 63.
(2) OJ C 232, 17.8.2001, p. 202, and the Opinion of 25 April 2002

(not yet published in the Official Journal).

(3) OJ C 116, 20.4.2001, p. 59.
(4) See page 41 of this Official Journal.
(5) OJ L 145, 13.6.1977, p. 1, as last amended by Directive 2002/

38/EC.

resident in the Community, unless he is satisfied that his
customer
scheme
is a taxable person. The special
provided for in Article 26c of the Directive applies only
for services provided to non-taxable persons established
or resident in the Community. It is thus clear that the
non-established taxable person needs certain informa-
tion about his customer.

(5)

(6)

(7)

To this end, use could in most cases be made of the
facility that is available in Member States in the form of
electronic databases which contain a register of persons
to whom value added tax identification numbers have
been issued in that Member State.

It
is accordingly necessary to extend the common
system for the exchange of certain information on intra-
Community transaction provided for in Article 6 of
Regulation (EEC) No 218/92 (6).

The provisions of the Regulation should operate for a
temporary period of three years which may be extended
for practical reasons and Regulation (EEC) No 218/92
should therefore be temporarily amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 218/92 is hereby temporarily amended:

1. the second paragraph of Article 1 shall be replaced by the

following:

‘To that end it lays down procedures for the exchange by
electronic means of value added tax information on intra-
Community transactions as well as on services supplied
electronically in accordance with the
scheme
provided for by Article 26c of Directive 77/388/EEC, and
also for any subsequent exchange of information and, as far
as services covered by that special scheme are concerned,
for
transfer of money between Member States'
competent authorities.’;

special

the

(6) OJ L 24, 1.2.1992, p. 1.

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Official Journal of the European Communities

15.5.2002

2.

in Article 2(1), the ninth indent shall be replaced by the
following:

determined in accordance with the procedure provided for
in Article 10.

‘— “intra-Community supply of services” shall mean any
supply of services covered by Article 28b (C), (D), (E) or
(F) of Directive 77/388/EEC,’;

3.

in Article 6, paragraph 4 shall be replaced by the following:

‘4.
The competent authority of each Member State shall
ensure that persons involved in the intra-Community supply
of goods or of services and persons supplying services
referred to in the last indent of Article 9(2)e of Directive
77/388/EEC are allowed to obtain confirmation of
the
validity of the value added tax identification number of any
specified person. In accordance with the procedure referred
to in Article 10, Member States shall, in particular, provide
such confirmation by electronic means.’;

4. the following Title shall be added:

‘TITLE III A

2.
The Member State of identification shall transmit this
information by electronic means to the competent authority
of the Member State concerned at the latest 10 days after
the end of the month that the return was received. Member
States which have required the tax return to be made in a
national currency other than euro shall convert the amounts
into euro using the exchange rate valid for the last date of
the reporting period. The exchange shall be done following
the exchange rates published by the European Central Bank
for that day, or, if there is no publication on that day, on
the next day of publication. The technical details by which
this information is to be transmitted shall be determined in
accordance with the procedure provided for in Article 10.

3.
The Member State of identification shall transmit by
electronic means to the Member State of consumption the
information needed to link each payment with a relevant
quarterly tax return.

Provisions concerning the special scheme in Article 26c
of Directive 77/388/EEC

Article 9d

Article 9a

The following provisions shall apply concerning the special
in Article 26c in Directive 77/
scheme provided for
388/EEC. The definitions contained in point A of
that
Article shall also apply for the purpose of this Title.

Article 9b

1.
The information from the non-established taxable
person to the Member State of identification when his activ-
ities commences set out in the second subparagraph of
Article 26c(B)(2) of Directive 77/388/EEC is to be submitted
in an electronic manner. The technical details, including a
common electronic message, shall be determined in accord-
ance with the procedure provided for in Article 10.

2.
The Member State of identification shall transmit this
information by electronic means to the competent authori-
ties of the other Member States within 10 days from the
the month during which the information was
end of
received from the non-established taxable person. In the
same manner,
the other
Member States shall be informed of the allocated identifica-
tion number. The technical details,
including a common
electronic message, by which this information is to be trans-
mitted shall be determined in accordance with the proce-
dure provided for in Article 10.

the competent authorities of

3.
The Member State of identification shall without delay
inform by electronic means the competent authorities of the
other Members States if a non-established taxable person is
excluded from the identification register.

Article 9c

The provisions in Article 4(1) shall apply also to informa-
tion collected by the Member State of
identification in
accordance with Article 26c(B)(2) and (5) of Directive 77/
388/EEC.

Article 9e

The Member State of identification shall ensure that the
amount
the non-established taxable person has paid is
transferred to the bank account denominated in euro, which
has been designated by the Member State of consumption
to which the payment is due. Member States which required
the payments in a national currency other than euro shall
convert the amounts into euro using the exchange rate valid
for the last date of the reporting period. The exchange shall
be done following the exchange rates published by the
there is no
European Central Bank for that day, or,
publication on that day, on the next day of publication. The
transfer shall take place at the latest 10 days after the end of
the month that the payment was received.

if

is

If the non-established taxable person does not pay the total
tax due, the Member State of identification shall ensure that
the payment
transferred to the Member States of
consumption in proportion to the tax due in each Member
State. The Member State of identification shall inform by
electronic means the competent authorities of the Member
States of consumption thereof.

Article 9f

1. Member States shall notify by electronic means the
competent authorities of the other Member States of the
relevant bank account numbers for receiving payments
according to Article 9e.

1.
The return with the details set out in the second
subparagraph of Article 26c(B)(5) of Directive 77/388/EEC
is to be submitted in an electronic manner. The technical
including a common electronic message, shall be
details,

2. Member States shall without delay notify by electronic
means the competent authorities of
the other Member
States and the Commission of changes in the standard tax
rate.’;

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5.

in Article 13 the present text shall be renumbered as para-
graph 2 and a new paragraph 1 shall be inserted as follows:

Article 2

‘1.
The Commission and the Member States shall ensure
that such existing or new communication and information
exchange systems which are necessary to provide for the
exchanges of information described in Articles 9b and 9c
are operational by the date specified in Article 3(1) of
Directive 2002/38/EC. The Commission will be responsible
for whatever development of the common communication
network/common system interface (CCN/CSI) is necessary
to permit
information between
Member States. Member States will be responsible for what-
ever development of their systems is necessary to permit
this information to be exchanged using the CCN/CSI.’

the exchange of

this

Article 1 shall apply for a period provided for in Article 4 of
Directive 2002/38/EC.

No exchange of information under this Regulation shall take
place before 1 July 2003.

Article 3

This Regulation shall enter into force on the seventh day
following its publication in the Official Journal of the European
Communities.

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

Done at Brussels, 7 May 2002.

For the Council

The President

R. DE RATO Y FIGAREDO