Report from the Commission to the Council and the European Parliament on the application of Council Regulation (EC) no 1798/2003 concerning administrative cooperation in the field of value added tax {SEC(2009) 1121}
Date: 2009-08-18
Institutions: European Commission
Subjects: VAT, administrative cooperation, domestic market, fraud, intra-EU trade, tax evasion

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.8.2009 
COM(2009) 428 final 

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT  

On the application of Council Regulation (EC) no 1798/2003 concerning administrative 
cooperation in the field of value added tax 

{SEC(2009) 1121} 

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REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT  

On the application of Council Regulation (EC) no 1798/2003 concerning administrative 
cooperation in the field of value added tax 

1. 

INTRODUCTION 

According  to  Article  45  of  Council  Regulation  No.  1798/2003  on  administrative 
cooperation  in  the  field  of  VAT,  the  Commission  shall  present  every  three  years  a 
report  to  the  European  Parliament  and  the  Council  on  the  application  of  this 
Regulation. In the past, there have been five reports which describe the functioning 
of the administrative cooperation in the field of value added tax, but this is the first 
report  since  the  adoption  of  the  Council  Regulation  No  1798/2003  on  1  January 
2004. 

This  Regulation  was  designed  to  be  a  considerable  improvement  of  the  legal 
framework for administrative cooperation and an important tool in the fight against 
VAT fraud. In particular, the Regulation introduced improvements relating to; 

•  Clearer and binding rules governing cooperation between Member States. 

•  More  direct  contacts  between  services  with  a  view  to  making  cooperation  more 

efficient and faster. 

•  More automatic or spontaneous exchanges of information between Member States 

in order to combat fraud more effectively. 

This report assesses the functioning of administrative cooperation within the current 
legal  framework  and  focuses  in  particular  on  the  use  that  is  made  of  these  newly 
introduced  arrangements  in  order  to  evaluate  whether  these  changes  have  been 
effective.  

However,  the  present  report  cannot  be  dissociated  from  the  broader  context  of  the 
coordinated  strategy  to  improve  the  fight  against  VAT  fraud  set  out  in  the  recent 
Commission's Communication1. 

This Communication announces a range of measures which will substantially affect 
the way administrative cooperation in the field of VAT between tax authorities will 
function in the future.  

2. 

SOURCES  OF  INFORMATION  USED  FOR  THE  EVALUATION  OF  THE  APPLICATION  OF 
REGULATION 1798/2003. 

The  Commission  gathered  much  information  from  the  discussions  relating  to 
administrative  cooperation  and  the  fight  against  fiscal  fraud  held  during  the 
numerous  Anti  Tax  Fraud  Strategy  expert  group  meetings(ATFS)  and  the  Standing 
Committee on Administrative Cooperation meetings (SCAC), but since the practical 
use  of  the  different  instruments  of  administrative  cooperation  is  a  matter  for  the 

1 

Communication from the Commission, A coordinated strategy to improve the fight against VAT fraud 
in the EU, COM(2008)807 final, 1.12.2008 

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national tax authorities, consequently this evaluation could only be done on the basis 
of substantial input from the Member State. 

Therefore,  the  Commission  was  of  the  opinion  that  the  information  required  for  a 
comprehensive  assessment  of  administrative  cooperation  under  the  new  Regulation 
was  best  collected  by  way  of  a  questionnaire  sent  to  the  Member  States.  The 
Commission  Staff  working  document  SEC(2009)1121  du  18/08/2009provides  a 
detailed analysis of the replies given by the Member States2.  

Member states were given the opportunity to elaborate on certain replies given in the 
questionnaire  and,  more  generally,  to  share  their  views  on  the  functioning  of  VAT 
administrative  cooperation  and  in  particular  on  the  possibilities  they  saw  for  its 
further  improvement.  Only  2  Member  States  showed  an  interest  in  having  an  open 
discussion with the Commission on this issue.  

Interesting  sources  of  information  are  the  annual  statistics  sent  by  the  Member 
States  in  respect  of  Article  35(3)  of  Regulation  (EC)  n°  1798/2003.  Information 
relating  to  the  statistics  for  2006  and  2007  was  taken  into  account  to  underpin  a 
number of conclusions.  

Furthermore,  the  European  Court  of  Auditors  analyzed  the  functioning  of 
administrative  cooperation  in  2006,  based  notably  on  visits  to  7  Member  States. 
Their  Special  Report  pointed  out  that  "despite  new  arrangements  introduced  in 
2004, administrative cooperation between Member States in the field of VAT is still 
not  intensive  enough  to  cope  with  intra-Community  VAT  evasion  and  fraud"3.  This 
report has been a valuable source of input for the Commission.  

The German authorities dispute the competence of the Court of Auditors to carry out 
audits in this field and notably to verify whether Germany has set up the necessary 
administrative  and  organizational  structures  for  administrative  cooperation.  This 
issue  is  subject  of  an  infringement  case  for  which  the  application  to  the  Court  of 
Justice is under examination. 

3. 

MAIN FINDINGS 

3.1. 

Practical functioning 

3.1.1.  Exchange of information upon request 

One of the key factors to a smooth system for the exchange of information is a robust 
and  efficient  internal  management  and  procedural  system  in  the  Member  States. 
Where this is lacking this report has identified that problems will arise such as late 
replies to the request for information, wrong use of standard forms, poor quality of 
the  request  and  the  reply,  difficulties  to  identify  the  competent  liaison  department, 
and difficulties in collecting relevant data and technical problems with CCN mail4. 

In particular in a decentralised system, requesting Member States have difficulties in 
identifying  the  liaison  department  (and  the  contact  persons)  to  whom  the  request 
should  be  addressed.  On  the  other  hand,  those  Member  States  that  implement  a 
decentralised system point out that this leads to better use of resources. 

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25 Member States replied to the questionnaire, sent with letter D29096 of 31.3.2008 
ECA's Special Report 08/2007, OJ C20, 25.1.2008,p1  
mail sent via Common Communication Network (secured mailbox in all Member States) 

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A  major  concern  is  the  timeliness  of  the  reply  and  statistics  have  shown  that  the 
number  of  late  replies  has  reached  an  unacceptable  level.  Moreover,  although  the 
Regulation  foresees  that  Member  States  should  inform  each  other  in  case  of  non 
respect of the deadlines, the statistics show that this is hardly ever done in practice. 
The  delays  in  responding  to  requests  for  information  and  for  informing  the 
requesting Member State about the failure to meet the deadlines, is due to a number 
of internal factors: the exchange of information not being considered a priority, lack 
of human resources and linguistic problems. The standard forms contribute to more 
structure  and  clarity  and  to  a  more  harmonised  and  coherent  approach  in 
administrative  cooperation.  In  general,  it  seems  that  although  most  Member  States 
would  advocate  mandatory  use  of  the  standard  forms,  there  are  concerns  that  this 
would reduce the efficiency of cooperation in certain cases. Member States complain 
also that the XML-format has still not been applied by all in 2008 although they had 
agreed unanimously in 2007 to use it. 

The Commission is convinced that automated access to databases of other Member 
States would substantially reduce the number of requests for "standard" information. 
Automated  access  would 
therefore  facilitate  and  speed  up  administrative 
cooperation, and it would also release time and resources for the in-depth enquiries 
required for more complex requests.  

Furthermore, the quality of the reply does not always meet the appropriate standard. 
Therefore, replies can be in time but without value for the requesting party. Member 
States  themselves  have  pointed  out  that  the  quality  of  the  information  exchanged 
needs  to  improve  and  the  Commission  has  therefore  looked  into  the  matter  in  a 
specific project group set up under the Fiscalis 2013 programme5. 

A lot of problems need to be addressed at management level in the Member States 
such as the priority to be given within the tax administration to provide assistance to 
other  Member  States.  Among  ways  to  improve  the  current  situation,  management 
should  raise  the  awareness  of  local  officials  to  prioritise  these  requests  in  their 
planning,  the  local  offices  should  be  encouraged  to  take  direct  contact  with  the 
contact  points  in  the  other  Member  States  when  there  is  a  need  to  clarify  requests, 
enough  staff  should  be  allocated  to  the  administrative  cooperation,  and  the  XML-
format should be implemented. 

3.1.2.  Exchange of information without prior request 

Article  3  of  Regulation  1925/2004  defines  the  categories  for  which  the  Member 
States  can  indicate  whether  they  will  automatically  exchange  information  without 
prior request. Only few Member States participate in all categories for the exchange 
of  information.  Furthermore,  some  Member  States  indicate  that  they  participate  in 
the  exchange  for  certain  categories  but  in  practice  statistics  show  otherwise  (for 
example  for  distance  selling  only  5  exchanges  of  information  were  carried  out  in 
2007). Member States consider some categories more relevant than others. However, 
some  Member  States  do  not  participate  because  they  do  not  have  a  systematic 
collection and centralized storage of the necessary data. The reasons for not having 

5 

The  Fiscalis  2013  programme  (Decision  n°1482/2007/EC  of  11  December  2007)  is  a  Community 
programme  set  up  to  improve  the  proper  functioning  of  taxation  systems  in  the  internal  market  by 
increasing co-operation between the tax administrations of the participating countries. A project group 
is a group of national experts having meetings in order to propose solutions for a specific problem in 
well-defined areas, set up and financed under the Fiscalis 2013 programme. 

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this  are  numerous  (lack  of  staff  resources,  disproportionate  effort,  internal 
administrative organisation and difficulty to get the information). It is regrettable that 
some  Member  States  are  still  not  in  a  position  to  exchange  certain  categories  of 
information, despite this being the intention when the Regulation was adopted6.  

Therefore, a review of article 3 of the Regulation 1925/2004 could be envisaged with 
a  view  to  updating  the  current  list  and/or  introducing  a  new  list  including  types  of 
transactions  with  a  cross-border  element  where  participation  in  the  exchange  of 
information would be obligatory for all Member States. 

During discussions in the ATFS meetings a large number of Member States were not 
opposed to establishing such a specific list. Other categories considered irrelevant to 
the  Member  States  should  be  deleted.  However,  as  indicated  above,  it  appears  that 
there  is  a  contradiction  between  the  policy  views  expressed  in  the  ATFS  and  the 
application of the automatic exchange of information in practice. 

As  concerns  the  spontaneous  exchange  of  information,  Member  States  should 
increase  the  awareness  of  their  auditors  to  the  importance  of  spontaneously 
exchanged  information  for  other  Member  States'  tax  collecting  purposes.  Some 
Member  States  consider  that  Eurocanet7  is  a  good  approach  for  the  spontaneous 
exchange  of  information,  because  it  creates  direct  contacts  between  officials 
specialized in a certain topic and it allows for information to be exchanged rapidly. 
In  this  way  it  can  draw  the  attention  of  local  staff  to  the  importance  of  certain 
information that can be exchanged spontaneously and motivate them to actively use 
this  tool.  In  this  respect,  the  Commission  considers  that  the  establishment  of 
EUROFISC,  based  on  the  guidelines  approved  by  the  Council  in  October  2008, 
would provide a solid framework for enhancing this rapid information exchange.  

The  Commission  is  of  the  opinion  that  Member  States  should  implement  efficient 
procedures to collect the data to be exchanged automatically, because the majority of 
the  Member  States  consider  the  received  information  useful  and  of  benefit  in 
practice. Furthermore, management should improve the training of its tax auditors so 
that  they  become  aware  of  the  importance  spontaneous  information  exchange 
potentially can have for tax purposes in other Member States.  

3.1.3.  Feedback mechanism 

Most  Member  States  have  no  feedback  system  and  therefore  cannot  comment  on 
whether  the  information  transmitted  has  been  used  effectively.  Such  a  mechanism 
and the improvement of the quality of information exchanged would be helpful for 
management to tackle shortcomings in the procedures and to motivate tax auditors to 
increase the use of this instrument.  

Member States indicated the lack of feedback as a weakness and the Commission has 
examined the possible design of an appropriate feedback system in a Project Group 
under the Fiscalis 2013 programme.  

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See the Commission's reply to chapter 51, ECA's Special Report 08/2007, OJ C20, 25.1.2008,  
Eurocanet  is  an  informal  network  for  rapid  exchange  of  information  relating  potential  missing  trader 
fraud 

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3.1.4. 

Improvements of the functionality in VAT Information Exchange System (VIES) 

The non-validity of VAT numbers and delays in correcting the data are often quoted 
as  problems  identified  in  relation  to  the  quality  of  the  information  contained  in  the 
database, thus jeopardising the reliability of the database itself.  

Technical  work  is  progressing  to  modernise  the  VIES,  such  as  crosschecking  the 
name and address of the tax payer with his VAT ID-number to confirm these data. 
Furthermore, the Commission will present a proposal concerning minimum standards 
for registration/deregistration of VAT ID-numbers, in order to enhance the accuracy 
and completeness of the data in VIES.  

3.1.5.  Presence  of  officials  in  administrative  offices  and  participation  in  administrative 

enquiries in another Member State  

The statistics submitted annually show that use of the instrument mentioned in article 
11  is  limited,  although  it  is  considered  a  useful  tool  in  border  regions.  The  most 
important and recurrent reasons for this limited use are: language problems, lack of a 
national legal basis to allow participation in national enquiries, and specific national 
conditions to apply this instrument. However, national conditons should not hamper 
the use of this instrument.  

There is a need for raising the awareness of the officials and encouraging them to use 
this instrument. Furthermore, developping the language skills should be dealt with at 
national level.  

3.1.6. 

Simultaneous controls – multilateral controls (MLC)  

The Member States recognize the added value of the instrument mentioned in article 
12  of  Regulation  1798/2003.  Moreover,  efforts  have  been  made  for  promoting  and 
facilitating the use of this instrument, notably by the setting up of the MLC-platform 
and the update of the MLC-guide. These efforts seem to achieve their objective since 
the  number  of  MLCs  initiated  is  increasing.  However,  there  is  still  room  for 
improvement. A number of bottlenecks slow down the procedure: lack of time and 
resources, language knowledge, lack of experience, no direct contacts at lower level, 
and  no  delegation  by  the  competent  authority  to  the  responsible  tax  auditor. 
However, the functionality for communication between local tax authorities already 
exists within CCNmail phase II bis, but appears not to be implemented in all Member 
States. The exchange of information should, to the largest extent possible, always be 
directly between the tax auditors involved. 

The  Member  States  consider  that  their  internal  procedures  are  flexible  enough  to 
allow  for  swift  reaction  in  cases  of  (carrousel-)  fraud.  Nevertheless,  at  EU  level  it 
appears that the communication between the Anti Fraud Unit platform and the MLC 
coordination could still be improved.  

3.1.7. 

Special scheme for non established taxable persons supplying electronic services to 
non taxable persons (chapter VI of Regulation 1798/2003) 

No major problems have been encountered in the management of the special scheme, 
since the number of non established taxable persons (NETP's) and the amounts of tax 
paid are not significantly high. Nevertheless, this is tax that otherwise would not be 
collected in the absence of the special scheme. Furthermore, as a consequence of the 
introduction of the special scheme, a number of suppliers established themselves in 
the  EU  for  their  B2C  transactions  and  pay  VAT  in  the  Member  State  of 
identification.  

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As concerns audits in the field of e-commerce, Member States consider it difficult to 
carry  out  audits  on  NETP's.  Nevertheless,  it  is  essential  to  carry  out  such  audits  as 
this  is  the  only  tool  that  allows  Member  States  to  verify  that  businesses  correctly 
apply the provisions of the special scheme. Member States that carried out successful 
audits  are  encouraged  to  share  audit  experiences  and  practices  in  the  framework  of 
NETP's (for example addressing perceived risks, identifying compliance and revenue 
errors, providing confidence that remote and outside EU established businesses can 
be audited). Sharing these experiences and practices could be done through the MLC 
platform or anti-fraud platform.  

3.1.8.  National evaluation arrangements 

Article 35 of the Regulation states that the Member States shall examine and evaluate 
how  the  arrangements  for  administrative  cooperation  are  working.  In  practice,  it 
appears that the vast majority of the Member States do not systematically perform an 
internal evaluation but rather seem to base their self-assessment solely on the annual 
statistics they have to provide to the Commission in this respect. 

3.1.9.  Central Liaison Office (CLO) 

The CLO is in the vast majority of Member States the contact point for information 
requests. All Member States declare to have a monitoring system in order to follow 
up the treatment of requests. The CLO sets internal deadlines for responding, but it 
seems that they are not met, because there are no incentives to urge the responsible 
field  office  to  reply  in  time  or  to  explain  why  it  cannot  do  so.  In  particular  in  a 
decentralised  system  with  liaison  departments,  it  is  necessary  that  an  efficient 
monitoring  system  is  set  up,  not  only  to  meet  the  deadlines,  but  also  to  ensure  the 
standards  of  quality  of  information  exchanged.  Furthermore,  it  appears  that  some 
Member  States  send  a  single  request  to  all  liaison  departments,  which  are  then 
counted as more than one. This is one of the reasons for the differences between the 
received and sent requests in the statistics.  

Differences in languages used slows down the procedure. It could be best practice if 
Member States agree the working language in which they want to communicate for 
CLO-purposes.  However,  in  the  view  of  the  Commission,  the  absence  of  an 
agreement should not continue to hinder smooth cooperation but instead it could be 
envisaged  thatEnglish  be  used  as  a  fall  back  position  in  case  no  agreement  can  be 
reached. The lack of language knowledge is a problem occurring mainly at the local 
level  of  the  administration.  Direct  contacts  (telephone  or  CCN-mail)  asking  for 
clarification  could  avoid  burdensome  translation.  For  the  MLCs,  the  support  of 
interpreters  could  be  helpful.  A  linguistic  support  tool  was  indeed  set  up  under  the 
Fiscalis 2007 and Fiscalis 2013 programmes. 

3.2. 

Legal framework 

The  Member  States  consider  that  the  Regulation  has  improved  administrative 
cooperation.  In  general,  the  legal  framework  provides  tax  authorities  with  a  solid 
basis  for  exchanging  information  and  for  working  together  using  the  different 
instruments available to obtain valuable information to combat fraud.  

However,  Member  States  came  across  a  number  of  rules  lacking  clarity  and 
inaccuracies in applying the rules. Therefore, the legal framework would need to be 
updated in the areas listed below.  

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3.2.1.  Presence  in  administrative  offices,  participation  to  administrative  enquiries  and 

simultaneous controls (Articles 11-12-13) 

Member  States  pointed  out  that  an  interpretation  at  European  level  about  the 
application of article 11 would be useful and that no further international agreements 
or domestic legislation would then be required (which limit the use of the tool). 

Some difficulties were indeed pointed out resulting from differences in interpretation 
of the relevant article.  

However, after careful consideration the Commission services are of the opinion the 
abovementioned articles require very little amendment as the key is rather to apply 
the provisions at hand with an open mind.  

3.2.2.  Exchange of information without prior request (Articles 17 to 21) 

Article  17  of  the  Regulation  provides  for  Member  States  to  exchange  information 
without  prior  request.  It  specifies  that  each  Member  State  should  forward 
information to any other Member State concerned in three situations, which represent 
a very broad obligation. 

Articles 3 and 4 of Commission Regulation 1925/2004 define the (sub) categories for 
which  the  Member  States  will  exchange  information  in  an  automatic  or  structured 
automatic way. 

Article 18, however, limits the obligation provided for in Article 17, stating that the 
Member  States  may  determine  whether  they  will  exchange  certain  categories  of 
information without prior request. 

The replies  to the questionnaire  made clear that the Member States understand and 
apply  the  interaction  between  articles  17  and  18  in  divergent  ways.  This  leads  to 
inconsistency  in  the  exchange  of  information  between  the  Member  States.  The 
definition  of  the  categories  has  not  achieved  its  full  objective.  Furthermore,  the 
definition of "automatic" and "structured automatic" exchange causes confusion.  

The Commission will therefore propose amending the interaction between article 17 
and  18  of  the  Regulation.  Furthermore,  as  indicated  above,  in  Commission 
Regulation  1925/2004  the  current  list  could  be  updated  or  a  new  list  with  types  of 
transactions  could  be  introduced  for  which  exchange  of  information  would  be 
compulsory for all Member States (at least for some categories).  

3.2.3.  Relations with third countries (article 36) 

There  is  little  experience  regarding  the  exchange  of  information  coming  from  third 
countries.  Member  States  considered  that  information  coming  from  third  countries 
could  be  very  useful  to  facilitate  tax  assessment  or  fraud  detection,  but  strict  rules 
need to be applied (principle of secrecy). Not all Member States have concluded tax 
treaties including VAT matters and thus it is not possible for all of them to pass on 
the information from third countries. 

The  majority  of  the  Member  States  are  not  opposed  to  make  the  passing  of 
information  coming  from  third  countries  to  other  interested  Member  States 
obligatory.  A  possibility  could  be  to  broaden  the  scope  of  the  provision  in  the 
Regulation, so that the passing on of information is not explicitly excluded.  

The Commission is still convinced that in the longer term an approach coordinated at 
EU  level  to  cooperation  with  third  countries  in  the  area  of  VAT  is  the  appropriate 
way forward.  

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4. 

CONCLUSION 

The Commission's Communication of 31 May 2006 concerning the need to develop a 
co-ordinated strategy to improve the fight against fiscal fraud (COM (2006)254final 
of 31.5.2006) already expressed the view that the legal framework for administrative 
cooperation in the field of VAT has been reinforced, but that Member States do not 
make  sufficient  use  of  it  and  the  level  of  administrative  cooperation  is  not 
commensurate  with  the  size  of  intra-Community  trade.  The  European  Court  of 
Auditors  came  largely  to  the  same  conclusion  in  the  Special  Report  presented  in 
2007. 

This  report  does  not  come  to  a  different  conclusion;  the  new  arrangements 
introduced in 2004 with Regulation 1798/2003 offered improved possibilities, but the 
intensity  of  the  administrative  cooperation  between  Member  States  to  cope  with 
intra-Community VAT evasion and fraud is still unsatisfactory. 

As concerns the practical functioning, the willingness to improve the application of 
the administrative cooperation arrangements should be reflected in the management 
support and organisation of the tax administration through the following actions: 

–  An  appropriate  number  of  resources  should  be  allocated  to  administrative 

cooperation and tax controls; 

instruments  available 

–  Training  should  be  provided  for  tax  officials  to  raise  their  awareness  as  regards 
in  administrative  offices, 
the 

in  administrative  enquiries,  simultaneous  controls)  and 

the 
participation 
spontaneous exchange of information; 

(requests,  presence 

–  A proactive and open-minded approach should be adopted towards the application 
of  the  instruments  available  and  obstacles  should  be  avoided  at  national  level 
which  could  hamper  the  functioning  of  the  administrative  cooperation  and 
undermine the efficient use of the instruments; 

–  Local  officials  should  be  given  instructions  on  how  to  prioritise  the  requests  for 

information; 

–  The  software  should  be  adjusted  in  order  to  use  the  XML-format  for  sending 

requests; 

–  Efficient procedures should be implemented to collect data to be exchanged; 

–  Direct contacts between local tax auditors should be encouraged (via CCN mail II 

bis). 

These recommendations are in fact not new; they can already be found in previous 
reports  presented  several  years  ago.  The  fact  that  they  need  to  be  repeated  is  a 
worrying signal as concerns the level of follow up that has been given to them in the 
past. 

The political importance given within a Member State to ensuring that a service of 
good quality is provided to the partner authorities in the other Member States is a key 
factor for substantial improvements. 

The  ECOFIN  Council  has  had  in  the  past  2  years  several  discussions  about 
combating VAT fraud. The conclusions which have been drawn on these occasions 
point out the need for a common approach at EU level. The emphasis has been put on 
the so-called "conventional measures" which aim at strengthening the capacity of tax 
authorities to tackle VAT fraud within the context of the current VAT system. 

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Reinforcing  administrative  cooperation  is  essential  in  this  context  and  the  proposal 
for a recast of the Regulation 1798/2003 that is presented today contains substantial 
changes like automated access to databases and will provide the legal base to set up 
EUROFISC. The present report demonstrates the need for further amendments to the 
legal framework which are taken on board in this proposal. 

However,  improving  the  practical  functioning  is  equally  important  and  the 
Commission  counts  on  the  political  willingness  of  the  Member  States  to  put  the 
necessary efforts in this objective. 

The  willingness  has  to  come  from  the  Member  States  but  the  Commission  is 
prepared  to  provide  its  assistance  to  these  efforts.  A  number  of  actions  to  be  taken 
could  be  coordinated  at  EU  level  and  the  Fiscalis  2013  programme  provides 
appropriate  tools  for  supporting  the  development  and  implementation  of  these 
actions. 

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