Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State
Date: 2008-02-12
Institutions: Council of the European Union
Subjects: VAT, delivery, provision of services, residence, tax rebate

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COUNCIL DIRECTIVE 2008/9/EC

of 12 February 2008

laying down detailed rules for the refund of value added tax, provided for in Directive
2006/112/EC, to taxable persons not established in the Member State of refund but established in
another Member State

THE COUNCIL OF THE EUROPEAN UNION,

(5)

Having regard to the Treaty
Community, and in particular Article 93 thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Whereas:

(1)

(2)

(3)

(4)

implementing rules

Considerable problems are posed, both for the adminis-
trative authorities of Member States and for businesses,
by the
laid down by Council
Directive 79/1072/EEC of 6 December 1979 on the
the Member States
harmonisation of
relating to turnover
the
refund of value added tax to taxable persons not estab-
lished in the territory of the country (3).

taxes — Arrangements

laws of

the

for

The arrangements laid down in that Directive should be
amended in respect of the period within which decisions
concerning applications for refund are notified to busi-
it should be laid down that
nesses. At the same time,
businesses too must provide responses within specified
periods. In addition, the procedure should be simplified
and modernised by allowing for the use of modern
technologies.

The new procedure should enhance the position of busi-
nesses since the Member States shall be liable to pay
the refund is made late and the right of
interest
appeal by businesses will be strengthened.

if

For clarity and better reading purposes, the provision
concerning the application of Directive 79/1072/EEC,
previously contained in Council Directive 2006/112/EC
of 28 November 2006 on the common system of value
added tax (4), should now be integrated in this Directive.

(1) OJ C 285 E, 22.11.2006, p. 122.
(2) OJ C 28, 3.2.2006, p. 86.
(3) OJ L 331, 27.12.1979, p. 11. Directive as last amended by Directive

2006/98/EC (OJ L 363, 20.12.2006, p. 129).

(4) OJ L 347, 11.12.2006, p. 1. Directive as last amended by Directive

2007/75/EC (OJ L 346, 29.12.2007, p. 13).

this Directive cannot be suf-
Since the objectives of
and can
ficiently achieved by the Member States
the action, be
therefore, by reason of
the scale of
the Community
better achieved at Community level,
may adopt measures,
in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
what is necessary in order to achieve those objectives.

(6)

(7)

In accordance with point 34 of
the Interinstitutional
Agreement on better law-making (5), Member States are
encouraged to draw up,
themselves and in the
for
interests of the Community, their own tables illustrating,
as far as possible, the correlation between this Directive
and the transposition measures, and to make them
public.

In the interest of clarity, Directive 79/1072/EEC should
therefore be repealed, subject to the necessary transitional
measures with respect to refund applications introduced
before 1 January 2010,

HAS ADOPTED THIS DIRECTIVE:

Article 1

This Directive lays down the detailed rules for the refund of
value added tax (VAT), provided for in Article 170 of Directive
2006/112/EC, to taxable persons not established in the Member
State of refund, who meet the conditions laid down in Article 3.

Article 2

For the purposes of this Directive, the following definitions shall
apply:

1.

‘taxable person not established in the Member State of
refund’ means a taxable person within the meaning of
Article 9(1) of Directive 2006/112/EC who is not established
in the Member State of refund but established in the territory
of another Member State;

(5) OJ C 321, 31.12.2003, p. 1.

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2.

‘Member State of refund’ means the Member State in which
the VAT was charged to the taxable person not established
in the Member State of refund in respect of goods or services
supplied to him by other taxable persons in that Member
State or in respect of the importation of goods into that
Member State;

3.

‘refund period’ means the period mentioned in Article 16
covered by the refund application;

4.

‘refund application’ means the application for refund of VAT
charged in the Member State of refund to the taxable person
not established in the Member State of refund in respect of
goods or services supplied to him by other taxable persons
in that Member State or in respect of the importation of
goods into that Member State;

5.

‘applicant’ means the taxable person not established in the
Member State of refund making the refund application.

Article 3

This Directive shall apply to any taxable person not established
refund who meets the following
in the Member State of
conditions:

(a) during the refund period, he has not had in the Member
State of refund, the seat of his economic activity, or a fixed
establishment
transactions were
effected, or, if no such seat or fixed establishment existed,
his domicile or normal place of residence;

from which business

(b) during the refund period, he has not supplied any goods or
services deemed to have been supplied in the Member State
of refund, with the exception of the following transactions:

(i)

the supply of transport services and services ancillary
thereto, exempted pursuant to Articles 144, 146, 148,
149, 151, 153, 159 or 160 of Directive 2006/112/EC;

(ii) the supply of goods and services to a person who is
liable for payment of VAT in accordance with Articles
194 to 197 and Article 199 of Directive 2006/112/EC.

Article 4

This Directive shall not apply to:

under Article 138 or Article 146(1)(b) of Directive
2006/112/EC.

Article 5

Each Member State shall refund to any taxable person not
established in the Member State of refund any VAT charged
in respect of goods or services supplied to him by other
taxable persons in that Member State or in respect of
the
importation of goods into that Member State, insofar as such
goods and services are used for the purposes of the following
transactions:

(a)

transactions referred to in Article 169(a) and (b) of Directive
2006/112/EC;

(b) transactions to a person who is liable for payment of VAT
in accordance with Articles 194 to 197 and Article 199 of
Directive 2006/112/EC as applied in the Member State of
refund.

Without prejudice to Article 6,
this
Directive, entitlement to an input tax refund shall be determined
pursuant to Directive 2006/112/EC as applied in the Member
State of refund.

the purposes of

for

Article 6

To be eligible for a refund in the Member State of refund, a
taxable person not established in the Member State of refund
has to carry out transactions giving rise to a right of deduction
in the Member State of establishment.

When a taxable person not established in the Member State of
refund carries out in the Member State in which he is estab-
lished both transactions giving rise to a right of deduction and
transactions not giving rise to a right of deduction in that
the VAT which is
Member State, only such proportion of
refundable in accordance with Article 5 may be refunded by
the Member State of refund as is attributable to the former
transactions
in accordance with Article 173 of Directive
2006/112/EC as applied by the Member State of establishment.

(a) amounts of VAT which, according to the legislation of the
Member State of refund, have been incorrectly invoiced;

(b) amounts of VAT which have been invoiced in respect of
supplies of goods the supply of which is, or may be, exempt

Article 7

To obtain a refund of VAT in the Member State of refund, the
taxable person not established in the Member State of refund
shall address an electronic refund application to that Member
State and submit it to the Member State in which he is estab-
lished via the electronic portal set up by that Member State.

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Article 8

The

1.
information:

refund application shall

contain the

following

(f)

the amount of deductible VAT calculated in accordance with
Article 5 and the second paragraph of Article 6 expressed in
the currency of the Member State of refund;

(a)

the applicant's name and full address;

(g) where applicable, the deductible proportion calculated in
accordance with Article 6, expressed as a percentage;

(b) an address for contact by electronic means;

(h) nature of

the goods and services acquired, described

according to the codes in Article 9.

(c) a description of the applicant's business activity for which

the goods and services are acquired;

Article 9

In the refund application, the nature of the goods and

1.
services acquired shall be described by the following codes:

(d) the refund period covered by the application;

(e) a declaration by the applicant that he has supplied no goods
and services deemed to have been supplied in the Member
State of refund during the refund period, with the exception
of transactions referred to in points (i) and (ii) of Article
3(b);

1 = fuel;

2 = hiring of means of transport;

(f)

the applicant's VAT identification number or tax reference
number;

4 = road tolls and road user charge;

3 = expenditure relating to means of transport (other than the
goods and services referred to under codes 1 and 2);

(g) bank account details including IBAN and BIC codes.

5 = travel expenses, such as taxi fares, public transport fares;

In addition to the information specified in paragraph 1,
2.
the refund application shall set out, for each Member State of
refund and for each invoice or importation document,
the
following details:

6 = accommodation;

7 = food, drink and restaurant services;

(a) name and full address of the supplier;

8 = admissions to fairs and exhibitions;

(b) except in the case of importation, the VAT identification
number or
the supplier, as
tax reference number of
allocated by the Member State of refund in accordance
with the provisions of Articles 239 and 240 of Directive
2006/112/EC;

(c) except in the case of importation, the prefix of the Member
State of refund in accordance with Article 215 of Directive
2006/112/EC;

(d) date and number of the invoice or importation document;

(e)

taxable amount and amount of VAT expressed in the
currency of the Member State of refund;

9 = expenditure on luxuries, amusements and entertainment;

10 = other.

If code 10 is used, the nature of the goods and services supplied
shall be indicated.

2.
The Member State of refund may require the applicant to
provide additional electronic coded information as regards each
code set out in paragraph 1 to the extent that such information
is necessary because of any restrictions on the right of
deduction under Directive 2006/112/EC, as applicable in the
Member State of
the implementation of a
relevant derogation received by the Member State of refund
under Articles 395 or 396 of that Directive.

refund or

for

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Article 10

Without prejudice to requests for information under Article 20,
the Member State of refund may require the applicant to submit
by electronic means a copy of
the invoice or importation
document with the refund application where the taxable
amount
is
or
EUR 1 000 or more or the equivalent in national currency.
Where the invoice concerns fuel, the threshold is EUR 250 or
the equivalent in national currency.

importation

document

invoice

on

an

Article 11

to
The Member State of refund may require the applicant
provide a description of his business activity by using the
harmonised codes determined in accordance with the second
subparagraph of Article 34a(3) of Council Regulation (EC) No
1798/2003 (1).

Article 12

The Member State of refund may specify which language or
languages shall be used by the applicant for the provision of
information in the refund application or of possible additional
information.

Article 13

If subsequent to the submission of the refund application the
deductible proportion is adjusted pursuant to Article 175 of
Directive 2006/112/EC, the applicant shall make a correction
to the amount applied for or already refunded.

The correction shall be made in a refund application during the
calendar year following the refund period in question or, if the
applicant makes no refund applications during that calendar
year, by submitting a separate declaration via the electronic
portal established by the Member State of establishment.

Article 14

1.

The refund application shall relate to the following:

(a)

the purchase of goods or services which was invoiced
during the refund period, provided that the VAT became
chargeable before or at the time of the invoicing, or in
respect of which the VAT became chargeable during the
refund period, provided that
the purchase was invoiced
before the tax became chargeable;

(b) the importation of goods during the refund period.

documents not covered by previous refund applications and
concerning transactions completed during the calendar year in
question.

Article 15

1.
The refund application shall be submitted to the Member
State of establishment at the latest on 30 September of the
calendar year following the refund period. The application
shall be considered submitted only if the applicant has filled
in all the information required under Articles 8, 9 and 11.

The Member State of

2.
send the
applicant an electronic confirmation of receipt without delay.

establishment

shall

Article 16

The refund period shall not be more than one calendar year or
less than three calendar months. Refund applications may,
however, relate to a period of less than three months where
the period represents the remainder of a calendar year.

Article 17

If the refund application relates to a refund period of less than
one calendar year but not less than three months, the amount
of VAT for which a refund is applied for may not be less than
EUR 400 or the equivalent in national currency.

If the refund application relates to a refund period of a calendar
year or the remainder of a calendar year, the amount of VAT
may not be less than EUR 50 or the equivalent in national
currency.

Article 18

1.
The Member State of establishment shall not forward the
application to the Member State of refund where, during the
refund period, any of the following circumstances apply to the
applicant in the Member State of establishment:

(a) he is not a taxable person for VAT purposes;

(b) he carries out only supplies of goods or of services which
are exempt without deductibility of the VAT paid at the
preceding stage pursuant to Articles 132, 135, 136, 371,
Articles 374 to 377, Article 378(2)(a), Article 379(2) or
Articles 380 to 390 of Directive 2006/112/EC or provisions
providing for identical exemptions contained in the 2005
Act of Accession;

2.
the refund application may relate to invoices or

In addition to the transactions referred to in paragraph 1,
import

(1) OJ L 264, 15.10.2003, p. 1.

(c) he is covered by the exemption for small enterprises
in Articles 284, 285, 286 and 287 of

provided for
Directive 2006/112/EC;

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(d) he is covered by the common flat-rate scheme for farmers
in Articles 296 to 305 of Directive

provided for
2006/112/EC.

Where the Member State of refund requests further additional
information,
its decision in
respect of the whole or part of the refund application within
eight months of receipt of the application by that Member State.

it shall notify the applicant of

The Member State of establishment

2.
applicant by electronic means of
pursuant to paragraph 1.

shall notify the
the decision it has taken

Article 19

1.
The Member State of refund shall notify the applicant
without delay, by electronic means, of the date on which it
received the application.

2.
The Member State of refund shall notify the applicant of
its decision to approve or refuse the refund application within
four months of its receipt by that Member State.

Article 20

in particular

1. Where the Member State of refund considers that it does
not have all the relevant information on which to make a
decision in respect of the whole or part of the refund appli-
cation,
infor-
it may request, by electronic means, additional
from the
from the
mation,
competent authorities of the Member State of establishment,
within the four-month period referred to in Article 19(2).
Where the additional
information is requested from someone
other than the applicant or a competent authority of a Member
State, the request shall be made by electronic means only if
such means are available to the recipient of the request.

applicant or

If necessary, the Member State of refund may request further
additional information.

The information requested in accordance with this paragraph
may include the submission of the original or a copy of the
relevant invoice or import document where the Member State
refund has reasonable doubts regarding the validity or
of
accuracy of a particular claim.
the thresholds
mentioned in Article 10 shall not apply.

In that case,

2.
The Member State of refund shall be provided with the
information requested under paragraph 1 within one month of
the date on which the request reaches the person to whom it is
addressed.

Article 21

Where the Member State of refund requests additional
infor-
mation, it shall notify the applicant of its decision to approve or
refuse the refund application within two months of receiving
the requested information or, if it has not received a reply to its
request, within two months of expiry of the time limit laid
down in Article 20(2). However, the period available for the
decision in respect of the whole or part of the refund appli-
cation shall always be at least six months from the date of
receipt of the application by the Member State of refund.

Article 22

the latest within 10 working days of

1. Where the refund application is approved, refunds of the
approved amount shall be paid by the Member State of refund
at
the
deadline referred to in Article 19(2) or, where additional or
further
the
deadlines referred to in Article 21.

information has been requested,

the expiry of

additional

The refund shall be paid in the Member State of refund or,
2.
at the applicant's request,
in any other Member State. In the
latter case, any bank charges for the transfer shall be deducted
by the Member State of refund from the amount to be paid to
the applicant.

Article 23

1. Where the refund application is refused in whole or in
part, the grounds for refusal shall be notified by the Member
State of refund to the applicant together with the decision.

2.
Appeals against decisions to refuse a refund application
may be made by the applicant to the competent authorities of
the Member State of refund in the forms and within the time
limits laid down for appeals in the case of refund applications
from persons who are established in that Member State.

If, under the law of the Member State of refund, failure to take a
decision on a refund application within the time limits specified
in this Directive is not regarded either as approval or as refusal,
any administrative or judicial procedures which are available in
that situation to taxable persons established in that Member
State shall be equally available to the applicant.
If no such
procedures are available, failure to take a decision on a refund
application within these time limits shall mean that the appli-
cation is deemed to be rejected.

Article 24

1. Where a refund has been obtained in a fraudulent way or
otherwise incorrectly, the competent authority in the Member
State of refund shall proceed directly to recover the amounts
imposed in
wrongly paid and any penalties and interest
accordance with the procedure applicable in the Member State
of
refund, without prejudice to the provisions on mutual
assistance for the recovery of VAT.

2. Where an administrative penalty or interest has been
imposed but has not been paid, the Member State of refund
may suspend any further
taxable person
concerned up to the unpaid amount.

refund to the

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Article 25

The Member State of refund shall
take into account as a
decrease or increase of the amount of the refund any correction
made concerning a previous refund application in accordance
with Article 13 or, where a separate declaration is submitted, in
the form of separate payment or recovery.

Article 26

Interest shall be due to the applicant by the Member State of
refund on the amount of the refund to be paid if the refund is
paid after the last date of payment pursuant to Article 22(1).

If the applicant does not submit the additional or further ad-
ditional information requested to the Member State of refund
within the specified time limit, the first paragraph shall not
apply.
the documents to be
to Article 10 have been
submitted electronically pursuant
received by the Member State of refund.

It shall also not apply until

Article 27

Directive 79/1072/EEC shall be repealed with effect from
2.
1 January 2010. However, its provisions shall continue to apply
to refund applications submitted before 1 January 2010.

References to the repealed Directive shall be construed as
references
refund applications
submitted before 1 January 2010.

to this Directive except

for

Article 29

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
from 1 January 2010. They shall
Directive with effect
forthwith inform the Commission thereof.

When such provisions are adopted by Member States, they shall
contain a reference to this Directive or be accompanied by such
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

1.
Interest shall be calculated from the day following the last
day for payment of the refund pursuant to Article 22(1) until
the day the refund is actually paid.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

2.
Interest rates shall be equal to the interest rate applicable
with respect to refunds of VAT to taxable persons established in
the Member State of refund under the national
law of that
Member State.

Article 30

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.

If no interest is payable under national law in respect of refunds
to established taxable persons,
the interest payable shall be
equal to the interest or equivalent charge which is applied by
the Member State of refund in respect of late payments of VAT
by taxable persons.

Article 28

This Directive shall apply to refund applications submitted

1.
after 31 December 2009.

Article 31

This Directive is addressed to the Member States.

Done at Brussels, 12 February 2008.

For the Council
The President

A. BAJUK