2002/439/EC: Council Decision of 4 June 2002 authorising Germany to apply a measure derogating from Article 21 of the Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes
Date: 2002-06-04
Institutions: Council of the European Union
Subjects: Germany, VAT, basis of tax assessment, delivery, derogation from EU law, provision of services

L 151/12

EN

Official Journal of the European Communities

11.6.2002

II

(Acts whose publication is not obligatory)

COUNCIL

COUNCIL DECISION

of 4 June 2002

authorising Germany to apply a measure derogating from Article 21 of the Sixth Directive 77/388/
EEC on the harmonisation of the laws of the Member States relating to turnover taxes

(2002/439/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 the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment (1), and in particular
Article 27(1) thereof,

Having regard to the proposal from the Commission,

Whereas:

In a request submitted in the form of
two letters
addressed to the Commission, registered by the Commis-
sion’s Secretariat-General on 9 January 2002,
the
German Government sought authorisation to introduce
a measure derogating from Article 21(1)(a) of Directive
77/388/EEC.

dure, of goods provided as security by one VAT taxable
person to another in execution of
that security and
secondly on the supply of immovable property sold at
public auction to another VAT taxable person in the
course of the judicial liquidation of the enterprise that
owned the immovable property sold.

This derogation is intended to simplify the collection of
the tax insofar as, in practice, the person normally liable
for the tax is, in the instances for which the derogation
is sought, generally prevented by financial difficulties
from paying the VAT invoiced.

This state of affairs adversely affects public finances in
that the recipient of the goods can nonetheless deduct
the value added tax invoiced to him, even though it has
not been paid by the taxable person who supplied the
goods.

(5)

(6)

The other Member States were informed of Germany’s
request by letter of 16 January 2002.

(7)

By designating the recipient of the goods as the person
liable for the value added tax, the derogation removes
the difficulties encountered without affecting the amount
of tax due.

Article 21(1) of Directive 77/388/EEC, in the version of
Article 28g of the said Directive, stipulates that, under
the internal system, the taxable person supplying taxable
goods or services is normally liable to pay value added
tax (VAT).

The purpose of the derogation requested by Germany is
to make the recipient liable for the value added tax due
firstly on the supply, outside a judicial liquidation proce-

(8)

The authorisation should be granted until 31 December
2006, which will enable the derogation to be reviewed
in the light of experience.

(1)

(2)

(3)

(4)

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

2001/115/EC (OJ L 15, 17.1.2002, p. 24).

(9)

The derogation in question does not adversely affect the
Communities’ own resources from VAT,

11.6.2002

EN

Official Journal of the European Communities

L 151/13

HAS ADOPTED THIS DECISION:

Article 1

By way of derogation from Article 21(1)(a) of Directive 77/
388/EEC,
in the version of Article 28g thereof, Germany is
hereby authorised to designate the recipient of the supplies of
goods referred to in Article 2 of this Decision as the person
liable to pay value added tax.

Article 2

The recipient of the supply of goods may be designated as the
person liable to pay VAT in the following instances:

1. the supply, outside a judicial liquidation procedure, of goods
provided as security by one VAT taxable person to another
in execution of that security;

2. the supply of immovable property sold at public auction to
another VAT taxable person in the course of the judicial
liquidation of
the enterprise that owned the immovable
property thus sold.

This Decision shall expire on 31 December 2006.

Article 3

This Decision is addressed to the Federal Republic of Germany.

Article 4

Done at Luxembourg, 4 June 2002.

For the Council

The President

R. DE RATO Y FIGAREDO