2004/854/EC: Council Decision of 7 December 2004 amending Decision 2001/865/EC authorising the Kingdom of Spain to apply a measure derogating from Article 11 of the Sixth Council Directive (77/388/EEC) on the harmonisation of the laws of the Member States relating to turnover taxes
Date: 2004-12-07
Institutions: Council of the European Union
Subjects: Spain, VAT, derogation from EU law, gold, jewellery and goldsmith's articles, tax harmonisation

L 369/60

EN

Official Journal of the European Union

16.12.2004

COUNCIL DECISION

of 7 December 2004

amending Decision 2001/865/EC authorising the Kingdom of Spain to apply a measure derogating
from Article 11 of the Sixth Council Directive (77/388/EEC) on the harmonisation of the laws of
the Member States relating to turnover taxes

(2004/854/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,

establishing the European

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:

By Decision 2001/865/EC (2) the Council authorised the
Kingdom of Spain, by way of derogation from Article
11(A)(1)(a) of Directive 77/388/EEC, to include in the
taxable amount of a supply of goods or a supply of
services the value of any gold used by the supplier and
provided by the recipient in cases where the supply of
the gold to the recipient is exempt in accordance with
Article 26b of Directive 77/388/EEC.

The aim of that derogation was to avoid abuse of the
investment gold and thus to prevent
exemption for
certain types of tax evasion or avoidance.

on

By letter registered with the Secretariat-General of the
Commission
Spanish
Government requested an extension of the validity of
Decision 2001/865/EC, which expires on 31 December
2004.

4 August

2004,

the

27(2)

accordance with Article

of Directive
In
77/388/EEC,
the Commission informed the other
Member States by letter dated 9 August 2004 of the
request made by the Kingdom of Spain. By letter dated
10 August 2004, the Commission notified the Kingdom
of Spain that it had all the information it considered
necessary for appraisal of the request.

(1)

(2)

(3)

(4)

(5)

(6)

(7)

The derogations pursuant
to Article 27 of Directive
77/388/EEC which counter VAT avoidance linked to
the exemption for investment gold may be included in
a future proposal for a Directive rationalising some of the
derogations pursuant to that Article.

It is therefore necessary to extend the validity of the
derogation granted under Decision 2001/865/EC until
the entry into force of a Directive rationalising the dero-
gations pursuant to Article 27 of Directive 77/388/EEC
which covers the avoidance of value added tax linked to
the exemption for investment gold, or until 31 December
2009, whichever is the earlier.

(8)

The derogation will have no negative impact on the
Community’s own resources provided from VAT,

HAS ADOPTED THIS DECISION:

Article 1

Article 2 of Decision 2001/865/EC shall be replaced by the
following:

‘Article 2

The authorisation granted under Article 1 shall expire on the
date of entry into force of a directive rationalising the dero-
gations pursuant
to Article 27 of Directive 77/388/EEC
which counter avoidance of value added tax linked to the
exemption for investment gold or on the 31 December
2009, whichever is the earlier.’

Article 2

This Decision is addressed to the Kingdom of Spain.

Done at Brussels, 7 December 2004.

According to the Spanish authorities,
the derogation
authorised by Decision 2001/865/EC has been effective
in achieving the aims stated above.

For the Council
The President

G. ZALM

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

2004/66/EC (OJ L 168, 1.5.2004, p. 35).

(2) OJ L 323, 7.12.2001, p. 24.