2004/853/EC: Council Decision of 7 December 2004 authorising the French Republic and the Italian Republic to apply a measure derogating from Article 3(1) 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: France, Italy, derogation from EU law, tax harmonisation, toll, tunnel

L 369/58

EN

Official Journal of the European Union

16.12.2004

II

(Acts whose publication is not obligatory)

COUNCIL

COUNCIL DECISION

of 7 December 2004

authorising the French Republic and the Italian Republic to apply a measure derogating from Article
3(1) of the Sixth Council Directive (77/388/EEC) on the harmonisation of the laws of the Member
States relating to turnover taxes

(2004/853/EC)

THE COUNCIL OF THE EUROPEAN UNION,

(3)

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 thereof,

(4)

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

Under Article 27 of Directive 77/388/EEC, the Council,
acting unanimously on a proposal from the Commission,
may authorise any Member State to introduce special
the
measures for derogation from the provisions of
for
Directive,
to simplify the procedure
charging the tax or to prevent certain types of
tax
evasion or avoidance.

in order

In a request submitted to the Commission and registered
by the Commission's Secretariat-General on 24 March
2004, the French and the Italian Governments sought
authorisation to derogate from Article 3 of Directive
77/388/EEC.

(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).

27(2)

accordance with Article

of Directive
In
77/388/EEC,
the Commission informed the other
Member States by letter of 1 June 2004 of the request
made by the French and the Italian Governments and by
letter of 3 June 2004 the Commission notified the
French Republic and the Italian Republic that it had all
the information it considered necessary for appraisal of
the request.

to arrange collection of

Between France and Italy there are two tunnels: Mont
Blanc (Monte Bianco) and Fréjus. The border between
the two States is inside the tunnel but
it would be
impractical
tolls inside. The
indent of Article 3(1) of Directive 77/388/EEC
first
the ‘… “territory of a Member State”
stipulates that
shall mean the territory of the country …’. Under the
current rules, therefore, the taxable amount of the tolls
should be related to the length of
the tunnel which
belongs to each State. Since it would be expensive and
disruptive to have a toll booth at each end of the tunnel
for each Member State to collect their share of the toll,
tolls are collected as a whole at the entrance of the
tunnel. Each journey through the tunnel
should be
invoiced with two tolls and two different VAT rates:
one for the French territory and one for the Italian
territory. Moreover the taxable amount and the VAT
should afterwards be shared between the two Member
States. Thus the VAT is an additional complicating
financial
factor in an already complex mechanism of
the
compensation resulting
management costs for the tunnel.

sharing of

from the

(5)

The purpose of the derogation requested by France and
Italy is to seek authorisation to derogate from Article 3
of Directive 77/388/EEC in relation to the tunnel of
Mont Blanc (Monte Bianco) and tunnel of Fréjus.

16.12.2004

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Official Journal of the European Union

L 369/59

(6)

(7)

(8)

(9)

For both tunnels the two States wish to consider the
entire length of the carriageway within the tunnel as
the territory of the State in which any transit journey
through the tunnel using the carriageway starts. Thus
the French office will apply French VAT to the entire
toll for all journeys starting from the French side. The
same mechanism will be applied by the Italian office to
all journeys starting from the Italian side.

This derogation only has effect with regard to the
charging of tolls and in order to simplify the way in
which VAT is calculated and accounted for. It does not
affect
the
purposes of any other supplies.

the VAT territory of

Italy or France for

The intended measure is designed to solve the problems
outlined above by simplifying the arrangements
for
paying the tax and is essentially of a technical nature.
the Communities' own
It does not adversely affect
resources provided from VAT, nor does it have any
effect on the amount of the tax due at the final stage
of consumption.

As the matter involved is the territory definition for VAT
purposes to which there should be no changes,
the
requested derogation should be granted for an indefinite
period,

HAS ADOPTED THIS DECISION:

Article 1

and Italy are hereby authorised to consider

By way of derogation from Article 3 of Directive 77/388/EEC,
France
the
carriageway within the tunnels of Mont Blanc (Monte Bianco)
and Fréjus, for their entire length, as part of the territory of the
Member State from which any journey using the carriageway
starts.

Article 2

Article 1 shall apply to the tunnels' tolls only.

Article 3

This Decision is addressed to the French Republic and the
Italian Republic.

Done at Brussels, 7 December 2004.

For the Council
The President

G. ZALM