Proposal for a COUNCIL REGULATION amending Implementing Regulation (EU) No 282/2011 as regards the place of supply of services
Date: 2012-12-18
Institutions: European Commission
Subjects: VAT, audiovisual programme, basis of tax assessment, broadcasting, double taxation, legal domicile, provision of services, tax harmonisation, telecommunications, television

EUROPEAN 
COMMISSION 

Brussels, 18.12.2012  
COM(2012) 763 final 

2012/0354 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Implementing Regulation (EU) No 282/2011 as regards the place of supply of 
services 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

Article 397  of  Council  Directive  2006/112/EC  on  the  common  system  of  value  added  tax1 
(‘the VAT Directive’) provides that ‘the Council, acting unanimously on a proposal from the 
Commission, shall adopt the measures necessary to implement this Directive’. 

On  that  basis,  the  Council  adopted  Council  Implementing  Regulation  (EU)  No 282/20112 
(‘the VAT Implementing Regulation’), setting out rules on how to apply certain provisions of 
the  VAT  Directive  and  also  enshrining  in  law  a  number  of  guidelines  agreed  by  the  VAT 
Committee since 1977. 

Large parts of the VAT Implementing Regulation relate to changes to the rules on the place of 
supply of services introduced in 2008 (by the ‘VAT Package’3). Some of those changes need 
further  clarification,  in  particular  those  concerning  telecommunications,  broadcasting  or 
electronic services supplied to non-taxable persons, which from 2015 become taxable in the 
Member  State  in  which  the  customer  is  established,  has  his  permanent  address  or  usually 
resides. Suppliers of such services will need to identify and account for VAT in that Member 
State. 

Measures have already been taken to implement the special schemes for those suppliers who 
are not established in the Member State of taxation4. Further measures are needed to ensure 
that  the  rules  governing  the  place  of  supply  of  these  services  are  applied  uniformly.  It  is 
essential to amend the VAT Implementing Regulation to lay down rules on how to apply the 
relevant provisions of the VAT Directive. 

These measures should be adopted by the Council as soon as possible and certainly by the end 
of 2013, in order to give businesses and the Member States sufficient time to prepare for the 
changes. 

This  proposal  and  the  definitions  it  contains  do  not  preclude  the  outcome  of  ongoing 
discussions on applying reduced VAT rates to online products and services. 

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4 

OJ L 347, 11.12.2006, p. 1. 
Council  Implementing  Regulation  (EU)  No 282/2011  of  15 March  2011  laying  down  implementing 
measures  for  Directive  2006/112/EC  on  the  common  system  of  value  added  tax  (recast)  (OJ L 77, 
23.3.2011, p. 1). 
Council  Directive  2008/8/EC  of  12 February  2008  amending  Directive  2006/112/EC  as  regards  the 
place of supply of services (OJ L 44, 20.2.2008, p. 11). 
Council  Regulation  (EU)  No 967/2012  of  9 October  2012  amending  Implementing  Regulation  (EU) 
No 282/2011  as  regards  the  special  schemes  for  non-established  taxable  persons  supplying 
telecommunication  services,  broadcasting  services  or  electronic  services  to  non-taxable  persons 
(OJ L 290,  20.10.2012,  p. 1)  and  Commission  Implementing  Regulation  (EU)  No 815/2012  of 
13 September  2012  laying  down  detailed  rules  for  the  application  of  Council  Regulation  (EU) 
No 904/2010,  as  regards  the  special  schemes  for  non-established  taxable  persons  supplying 
telecommunications,  broadcasting  or  electronic  services  to  non-taxable  persons  (OJ L 249,  14.9.2012, 
p. 3). 

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General context 

Telecommunications, broadcasting and electronic services are, in general, taxed at the place 
where the customer is established or resides5. Where the supplier is established within the EU 
and the customer is a non-taxable person, the supply is, however, currently taxed at the place 
where the supplier is established. 

From  1 January  2015,  all  telecommunications,  broadcasting  and  electronic  services  will  be 
taxable  at  the  place  where  the  customer  belongs  (unless  the  rule  on  effective  use  and 
enjoyment applies), even if the customer is a non-taxable person. For non-taxable persons, EU 
and  non-EU  suppliers  will  need  to  identify  where  the  customer  is  established,  has  his 
permanent address or usually resides. Without a VAT identification number (which is usually 
reserved  for  taxable  persons)  for  guidance,  the  supplier  will  have  to  rely  to  some  extent  on 
information from the customer. 

To ensure legal certainty, and avoid double taxation or non-taxation, suppliers need clear and 
binding rules on how to do this. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties 

To  identify  the  areas  where  implementing  measures  are  necessary  to  ensure  uniform 
application  of  the  provisions  of  the  VAT  Directive,  Member  States  and  businesses  were 
consulted extensively during a Fiscalis seminar. Views were also exchanged at a meeting of 
an  expert  group  consisting  of  representatives  of  the  Member  States,  called  Working  Party 
No 16, and with businesses at an ad hoc expert meeting. 

Collection and use of external expertise 

There was no need for external expertise. 

Impact assessment 

The  measures  concerned  are  of  a  purely  technical  nature  and  are  merely  setting  out  the 
application  of  provisions  already  adopted  by  the  Council.  Hence  there  is  no  need  for  an 
impact assessment. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the EU. The objectives of the proposal cannot be sufficiently achieved by the 
Member States. 

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Also referred to as the place where the customer belongs. 
that  meeting  are  available  at: 
The  agenda, 
http://ec.europa.eu/taxation_customs/taxation/vat/key_documents/discussions_member_states/index_en
.htm. 

the  working  document  and 

the  report  from 

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Even though the Member States are responsible for the transposition of EU law into national 
legislation, it is essential that the rules governing the place of supply of telecommunications, 
broadcasting  and  electronic  services  are  applied  in  a  uniform  manner  in  order  to  prevent 
divergent application rules leading to double taxation or non-taxation. 

For the reasons outlined above, only EU action can ensure equal treatment for business and 
citizens  in  the  European  Union.  The  proposal  therefore  complies  with  the  subsidiarity 
principle. 

Proportionality principle 

The  present  amendments  are  necessary  to  adapt  Council  Implementing  Regulation  (EU) 
No 282/2011  to  the  relevant  provisions  of  the  VAT  Directive  which  will  apply  as  from 
1 January 2015.  

The  new  provisions  relate  to  Directive  2008/8/EC  amending  Directive  2006/112/EC  as 
regards the place of supply of services, in particular Article 5 thereof.  

The proposal therefore complies with the proportionality principle. 

4. 

ADDITIONAL INFORMATION 

Detailed explanation of the proposal 

The proposed implementing measures relate to the following types of services: 

• 

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• 

telecommunications, broadcasting and electronic services 

services connected with immovable property 

distribution  of  tickets  granting  entry  to  cultural,  artistic,  sporting,  scientific, 
educational, entertainment and similar events. 

The proposals for each are as follows. 

Telecommunications, broadcasting and electronic services 

From  1 January  2015,  EU  (and  non-EU)  businesses  will  need  to  determine  where  their 
customer (non-taxable person) belongs in order to ensure correct taxation of these services. In 
order to ensure that the transition is smooth and coordinated at EU level, the Commission is 
proposing measures for the implementation of the new rules. This follows in-depth and close 
consultations with businesses and Member States. These measures will not change the rules 
for telecommunications, broadcasting and electronic services laid down by the VAT Directive 
but will clarify how those rules should be applied in practice. 

Articles 6a  and  6b,  together  with  the  changes  proposed  to  Article 7  and  Annex II,  seek  to 
clarify the nature of telecommunications, broadcasting and electronic services. Each of these 
services  should  be  defined  so  as  to  set  the  boundaries  of  the  new  rules.  A  definition  of 
broadcasting services is therefore included together with examples to illustrate which services 
are covered and  which are  not.  To provide legal certainty, preference is given to qualifying 
the  services  in  positive  terms.  The  existing  list  of  examples  of  electronic  services  has  been 

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adapted  and  similar  lists  drawn  up  for  telecommunications  and  broadcasting  services.  The 
lists are neither definitive nor exhaustive. 

Article 9a  clarifies  the  treatment  of  broadcasting  and  electronic  services  when  supplied 
through the telecommunications network or via an interface or a portal such as a marketplace 
for applications belonging to an intermediary (or a third party intervening in the supply). The 
presumption is that in supplying those services the intermediary acts on behalf of the supplier 
but  in  its  own  name.  Unless  stated  otherwise,  the  intermediary  will  be  deemed  to  have 
received  and  supplied  those  services.  Where  supply  is  made  to  a  non-taxable  person,  the 
intermediary then has to account for VAT in the Member State of its customer. 

Article 13a specifies that, similar to a taxable person, a non-taxable legal person is established 
at the place where his business is established or where he has a fixed establishment. 

Article 18 deals with the status of the customer. It allows a supplier to treat a customer who 
does not communicate his VAT identification number as a non-taxable person but only if the 
supplier does not have information to suggest otherwise. Where the place of taxation depends 
on whether the customer is a taxable or a non-taxable person, the risk of relying solely on the 
VAT identification number is that the supply could be displaced if a taxable customer chooses 
not to communicate the number. No such risk exists with telecommunications, broadcasting 
and  electronic  services,  which  in  any  circumstance  will  be  taxable  at  the  place  of  the 
customer.  The  new  paragraph 2  clarifies  that  for  such  services,  the  supplier  can  regard  any 
customer  who  does  not  provide  a  VAT  identification  number  as  a  non-taxable  person.  This 
will allow the supplier to determine immediately and with certainty whether payment of VAT 
falls to the supplier (as it does for supply to a non-taxable person, or to a taxable person in the 
same Member State) or whether the customer needs to account for the tax (because the supply 
is to a taxable person in another Member State). However, this initial assessment will have to 
be  reviewed  and  corrected  should  the  customer  subsequently  communicate  his  VAT 
identification number. 

Article 24 deals with situations where the customer is established or resides in more than one 
country.  The  aim  is  to  avoid  conflicts  concerning  jurisdiction  between  Member  States.  The 
new paragraph 3 clarifies what should be taken into account in order to determine the place 
that best ensures taxation at the place of actual consumption. 

Subsection 3a  provides  for  non-rebuttable  presumptions  where  it  is  impossible  or  almost 
impossible  for  the  supplier  to  establish  the  capacity  of  a  customer  or  to  know  where  the 
customer is actually established, has his permanent address or usually resides. 

Article 24a  deals  with  cases  where  a  supplier  of  telecommunications,  broadcasting  or 
electronic services provides those services to a customer at certain locations. In cases such as 
a telephone booth or a visit to an internet cafe, the supplier will not know who the customer is 
or  may  find  it  virtually  impossible  to  check  where  that  customer  actually  belongs.  As  the 
physical presence of the person receiving the service is needed for the service to be rendered 
to him, the presumption is that the customer belongs in that country. 

Article 24b  deals  with  cases  where  use  is  made  of  pre-paid  credits  stored  on  a  SIM  card  to 
receive the services. As, in general, there is no collection of personal details upon the sale of 
such cards, the supplier who is not necessarily supplying the customer with the card, will not 
know who that customer is. The country of issue of the SIM card is key to establish where the 

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customer  is.  As  use  will  often  be  in  that  country,  the  presumption  is  that  the  customer  also 
belongs there for this purpose. 

Subsection 3b  provides  for  rebuttable  presumptions  where  it  is  difficult,  but  not  impossible, 
for the supplier to know where the customer is actually established, has his permanent address 
or usually resides. Where the supplier has information to indicate that the customer belongs 
elsewhere, the presumptions shall not apply. 

Article 24c deals with cases where services are supplied to the customer via a fixed land line 
connected  with  a  residential  building.  As  that  is  also  where  the  service  will  be  used,  the 
presumption is that the customer belongs there. 

Article 24d covers cases where the customer makes use of a post-paid SIM card to receive the 
services. As with pre-paid credits, the presumption is that the customer belongs in the country 
of issue of the SIM card. Given that with services received through the use of a post-paid SIM 
card, the supplier will know the customer, there needs to be scope for this presumption to be 
rebutted. 

Article 24e suggests that a customer who needs a device or a viewing card in order to receive 
the  services  can  be  presumed  to  belong  where  the  device  is  installed  or  where  the  viewing 
card is sent for use. The presumption does not apply in cases where the device is sold without 
installation or where the viewing card is sold but not sent to the customer. 

Article 24f covers all other cases where the presumption is that the customer belongs at the 
place as established by the supplier through sufficient evidence. This presumption applies to 
the extent that the supplier does not have contradictory evidence. 

Subsection 3c focuses on evidence for use in identifying customer location. 

Article 24g  sets  out  a  list  of  items  of  information  which  can  be  used  as  evidence  by  the 
supplier in identifying where a non-taxable customer belongs. As there is no VAT number for 
guidance, the supplier needs to know what other information can be relied on. The list, whilst 
not exhaustive, suggests which are the most relevant items of information for use as evidence. 
To be proportionate, the evidence used must be sufficient to determine with relative certainty 
where  the  customer  belongs  but  the  burden  of  proof  must  not  be  excessive.  That  is  best 
achieved by setting a common level of evidence. Relying on a single piece of evidence is not 
appropriate  as  that  leaves  too  much  scope  for  differences  in  application.  Two  convergent 
separate pieces of evidence are therefore required. 

Services connected with immovable property 

Article 47 of the VAT Directive provides for the place of supply of services connected with 
immovable property to be the place where the property is located. Measures are included to 
clarify the scope of that provision based on guidelines agreed by the VAT Committee. 

Article 13b  provides  a  definition  of  what  constitutes  immovable  property.  The  concept  of 
immovable  property  is  a  common  notion  independent  of  national  law.  A  definition  of  this 
concept  is  needed  to  facilitate  the  correct  application  of  the  place-of-supply  rules.  The 
definition is largely based on the case law of the Court of Justice of the European Union. 

Article 31a  specifies  that  for  services  to  be  connected  with  immovable  property,  the 
connection needs to be sufficiently direct (paragraph 1). That covers services derived from an 

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immovable  property  if  the  property  makes  up  a  constituent  element  of  the  service  and  is 
central  and  essential  for  the  services  supplied  such  as  the  granting  of  fishing  permits;  or 
provided  to,  or  directed  towards,  an  immovable  property  having  as  their  object  the  legal  or 
physical  alteration  of  that  property  such  as  the  services  of  architects  or  estate  agents. 
Examples  are  included  to  illustrate  which  services  are  connected  with  immovable  property 
(paragraph 2), and which are not (paragraph 3). 

Article 31b  provides  that  the  hiring  of  equipment  to  a  customer,  with  or  without 
accompanying staff, with a view to carrying out work on an immovable property shall only be 
regarded  as  a  service  connected  with  immovable  property  if  the  supplier  assumes 
responsibility for the execution of the work. Where the equipment is put at the disposal of the 
customer  together  with  sufficient  staff  for  its operation, the presumption is that the supplier 
has assumed such responsibility. In this case, the service must be taxed in the country where 
that immovable property is located. 

Article 31c clarifies that telecommunications, broadcasting or electronic services provided by 
hotels  or  the  like  to  their  customers  in  connection  with  accommodation  will  be  treated  for 
VAT purposes in the same way as the supply of the accommodation itself. Depending on the 
way those services are charged, they either form part of a single supply of accommodation (in 
the  case  of  ‘all  inclusive’  prices)  or  are  regarded  as  being  ancillary  to  the  supply  of 
accommodation.  

Distribution  of  tickets  granting  entry  to  cultural,  artistic,  sporting,  scientific,  educational, 
entertainment or similar events 

Entry  to  cultural,  artistic,  sporting,  scientific,  educational,  entertainment  or  similar  events 
continues to be taxable at the place where the event actually takes place. Where entry to such 
events  is  granted  to  a  taxable  person,  the  supply  is  covered  by  Article 53  of  the  VAT 
Directive. Article 54 of the VAT Directive comprises the supply of entry to such events to a 
non-taxable person. 

Article 33a confirms that tax treatment is not influenced by the way in which the distribution 
of  tickets  for  such  events  is  organised.  In  all  circumstances,  the  supply  of  tickets  must  be 
taxed at the place where the event takes place. 

Transitional measures 

Under  Article 63  of  the  VAT  Directive,  the  chargeable  event  occurs  and  the  VAT  becomes 
chargeable  when  goods  or  services  are  supplied.  If  payment  is  made  on  account  under 
Article 65 of the VAT Directive or if Member States have availed themselves of the option in 
Article 66 of the VAT Directive, VAT can, however, become chargeable prior to or soon after 
supply. 

For telecommunications, broadcasting or electronic services supplied around 1 January 2015, 
i.e. the time when the new rules on the place of supply become applicable, conditions linked 
to  the  supply  or  differences  in  application  between  Member  States  could  result  in  double 
taxation or non-taxation. To prevent this from happening, Article 2 of the proposal makes it 
clear that, no matter when the VAT becomes chargeable, the decisive moment for determining 
the place of supply is when the services are supplied or, for ongoing supplies giving rise to 
successive  statements  of  account  or  successive  payments,  when  each  supply  is  completed. 
That is when the chargeable event occurs in any of the Member States. Those measures are 
necessary to ensure a smooth transition to the rules put in place as of 1 January 2015. 

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2012/0354 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Implementing Regulation (EU) No 282/2011 as regards the place of supply of 
services 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having  regard  to  Council  Directive  2006/112/EC  of  28 November  2006  on  the  common 
system of value added tax7, and in particular Article 397 thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

Directive  2006/112/EC,  as  amended  by  Directive  2008/8/EC8,  provides  that  as  from 
1 January 2015, all telecommunications, broadcasting and electronic services supplied 
to a non-taxable person are to be taxed in the Member State in which the customer is 
established  or  has  his  permanent  address  or  usually  resides  regardless  of  where  the 
taxable person supplying these services is established. Most other services supplied to 
a non-taxable person continue to be taxed in the Member State in which the supplier is 
established. 

In  order  to  determine  which  services  must  be  taxed  in  the  Member  State  of  the 
customer,  it  is  essential  to  define  telecommunications,  broadcasting  and  electronic 
services. In particular, the concept of broadcasting services should be clarified drawing 
from definitions laid down in Directive 2010/13/EU of the European Parliament and of 
the Council of 10 March 2010 on the coordination of certain provisions laid down by 
law, regulation or administrative action in Member States concerning the provision of 
audiovisual media services (Audiovisual Media Services Directive)9. 

To  clarify  matters,  transactions  identified  as  electronic  services  have  been  listed  in 
Implementing  Regulation  (EU)  No 282/2011,  without  the  list  being  definitive  or 
exhaustive.  The  list  should  be  updated  and  similar  lists  should  be  drawn  up  for 
telecommunications and broadcasting services. 

(4)  Where broadcasting and electronic services are not supplied directly to a customer but 
through  telecommunications  networks  or  via  an  interface  or  a  portal  belonging  to 
another  taxable  person,  it  is  necessary  to  specify  who  makes  the  supply  to  the 
customer. 

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9 

OJ L 347, 11.12.2006, p. 1. 
OJ L 44, 20.2.2008, p. 11. 
OJ L 95, 15.4.2010, p. 1. 

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(5) 

To  ensure  uniform  application  of  the  rules  governing  the  place  of  supply  of 
telecommunications,  broadcasting  and  electronic  services,  it  is  necessary  to  specify 
where a non-taxable legal person should be considered to be established. 

(6)  With a view to determining who is liable for payment of the value added tax (VAT) on 
the supply of telecommunications, broadcasting or electronic services, and taking into 
account that the place of taxation is the same regardless of whether the customer is a 
taxable or a non-taxable person, the supplier should be able to determine the status of a 
customer  solely  based  on  whether  the  customer  communicates  his  individual  VAT 
identification  number.  This  status  must,  in  accordance  with  the  general  rules,  be 
amended if such a communication is subsequently made by the customer.  

(7)  Where  a  non-taxable  person  is  established  in  more  than  one  country  or  has  his 
permanent address in one country but usually resides in another, priority is to be given 
to  the  place  that  best  ensures  taxation  at  the  place  of  actual  consumption.  To  avoid 
conflicts  concerning  jurisdiction  between  Member  States,  the  place  of  actual 
consumption should be specified. 

(8) 

(9) 

(10) 

Rules  should  be  established  to  clarify  the  tax  treatment  of  telecommunications, 
broadcasting and electronic services supplied to a non-taxable person whose place of 
establishment  or  residence  is  practically  impossible  to  determine  or  cannot  be 
determined with certainty. 

As  the  tax  treatment  of  telecommunications,  broadcasting  and  electronic  services 
supplied to a non-taxable person depends on where the customer is established, has his 
permanent address or usually resides, it is necessary to clarify what the supplier should 
be required to obtain as evidence in identifying the location of the customer. 

In order to ensure uniform treatment of supplies of services connected with immovable 
property,  the  concept  of  immovable  property  needs  to  be  defined.  The  proximity 
required for there to be a connection with an immovable property should be specified 
and  examples  of  transactions  identified  as  services  connected  with  immovable 
property should also be listed, without the list being definitive or exhaustive. 

(11) 

It  is  also  necessary  to  clarify  the  tax  treatment  of  services  putting  equipment  at  a 
customer’s disposal with a view to carrying out work on immovable property. 

(12)  For  practical  reasons,  it  should  be  clarified  that  telecommunications,  broadcasting  or 
electronic services provided by a taxable person acting in his own name in connection 
with  the  provision  of  accommodation  in  the  hotel  sector  or  in  sectors  with  a  similar 
function should be treated, for VAT purposes, in the same way as the provision of the 
accommodation  itself.  Both  transactions  should  be  treated  as  a  single  supply  in  the 
case of an all-inclusive price. Telecommunications, broadcasting or electronic services 
that are charged separately to the customer should be treated as an ancillary supply to 
the accommodation. 

(13) 

In  accordance  with  Directive  2006/112/EC,  admission  to  cultural,  artistic,  sporting, 
scientific,  educational,  entertainment  or  similar  events  must  in  all  circumstances  be 
taxed  at  the  place  where  the  event  actually  takes  place.  It  should  be  made  clear  that 
this also applies where tickets to such events are not sold directly by the organiser but 
distributed through intermediaries. 

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(14)  According  to  Directive  2006/112/EC,  VAT  can  become  chargeable  prior  to  or  soon 
after the supply of goods or services. In relation to telecommunications, broadcasting 
or electronic services supplied during the period of transition to the new rules on the 
place of supply, conditions linked to the supply or differences in application between 
Member States could result in double taxation or non-taxation. In order to avoid that 
happening, it is necessary to provide for transitional provisions.  

(15)  For the purposes of this Regulation, it may be appropriate for Member States to adopt 
legislative  measures  limiting  certain  rights  and  obligations  laid  down  by  Directive 
95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24 October  1995  on  the 
protection of individuals with regard to the processing of personal data and on the free 
movement  of  such  data10  in  order  to  safeguard  the  interests  referred  to  in 
Article 13(1)(e) of that Directive where such measures are necessary and proportionate 
in  view  of  the  risk  of  tax  fraud  and  tax  evasion  in  Member  States  and  the  need  to 
ensure the correct collection of VAT covered by this Regulation. 

(16) 

Implementing  Regulation 
accordingly, 

(EU)  No 282/2011  should 

therefore  be  amended 

HAS ADOPTED THIS REGULATION: 

Article 1 

Implementing Regulation (EU) No 282/2011 is amended as follows: 

(1) 

The following Articles 6a and 6b are inserted: 

‘Article 6a 

1.  Telecommunications  services  within  the  meaning  of  Article 24(2)  of  Directive 
2006/112/EC shall cover, in particular, the following: 

(a) 

(b) 

(c) 

fixed  and  mobile  telephone  services  for  the  transmission  and  switching  of 
voice,  data  and  video,  including  telephone  services  with  an  imaging 
component, otherwise known as videophone services; 

telephone services provided through the Internet, including voice over Internet 
Protocol (VoIP); 

voice mail, call waiting, call forwarding, caller identification, three-way calling 
and other call management services; 

(d)  paging services; 

(e) 

audiotext services; 

(f) 

facsimile, telegraph and telex; 

10 

OJ L 281, 23.11.1995, p. 31. 

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(g) 

telephone helpdesk services by which assistance is provided to users in case of 
problems  with  their  radio  or  television  network,  Internet  or  similar  electronic 
network; 

(h) 

access to the Internet, including the World Wide Web; 

(i) 

(j) 

(k) 

private  network  connections  providing  telecommunications  links  for  the 
exclusive use of the client; 

audio  and  audio-visual  content  via  communications  networks  which  is  not 
provided by and under the editorial responsibility of a media service provider; 

the  onward  supply  of  the  audio  and  audio-visual  output  of  a  media  service 
provider  via  communications  networks  by  someone  other  than  the  media 
service provider. 

2.  Telecommunications  services  within  the  meaning  of  Article 24(2)  of  Directive 
2006/112/EC shall not cover the following: 

(a) 

electronically supplied services; 

(b)  broadcasting services; 

(c) 

telephone  helpdesk  services  other  than  those  covered  by  point (g)  of 
paragraph 1. 

Article 6b 

1.  Radio  and  television  broadcasting  services  (hereinafter  ‘broadcasting  services’) 
shall  include  services  consisting  in  audio  and  audio-visual  content  such  as 
programmes  which  are  provided  via  communications  networks  by  and  under  the 
editorial  responsibility  of  a  media  service  provider  for  simultaneous  listening  or 
viewing to the general public on the basis of a programme schedule. 

2. Paragraph 1 shall cover, in particular, the following: 

(a) 

(b) 

radio  or  television  programmes  transmitted  or  retransmitted  over  a  radio  or 
television network; 

radio or television programmes distributed via the Internet or similar electronic 
network  (IP  streaming)  if  broadcast  live  or  simultaneous  to  their  being 
transmitted or retransmitted over a radio or television network. 

3. Paragraph 1 shall not cover the following: 

(a) 

telecommunications services; 

(b) 

electronically supplied services; 

(c) 

ancillary  services  such  as  the  provision  of  information  about  particular 
programmes on demand; 

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(d) 

transfer of broadcasting or transmission rights; 

(e) 

leasing of technical equipment or facilities for use to provide a broadcast.’ 

(2) 

In Article 7, paragraph 3 is amended as follows: 

(a) 

the introductory phrase is replaced by the following: 

‘Paragraph 1 shall not cover the following:’ 

(b) 

point (a) is replaced by the following: 

‘(a)  broadcasting services;’ 

(c) 

point (n) is replaced by the following: 

‘(n) 

telephone  helpdesk  services  other  than  those  covered  by  point (g)  of 
Article 6a(1);’ 

(d) 

points (q), (r) and (s) are deleted; 

(e) 

the following points (t) and (u) are added: 

‘(t)  online provision of tickets to cultural, artistic, sporting, scientific, educational, 

entertainment or similar events; 

(u)  online booking of hotel accommodation and the like.’ 

(3) 

In Chapter IV ‘Taxable transactions’, the following Article 9a is added: 

‘Article 9a 

Where  the  broadcasting  or  electronic  services  of  a  service  provider  are  supplied 
through  the  telecommunications  network,  an  interface  or  a  portal  such  as  a 
marketplace for applications belonging to an intermediary or a third party intervening 
in  the  supply,  the  intermediary  or  the  third  party  shall,  for  the  application  of 
Article 28 of Directive 2006/112/EC, be presumed to be acting in their own name but 
on behalf of the service provider unless, in relation to the final consumer, the service 
provider is explicitly indicated as the supplier. 

In  Section 1  ‘Concepts’  of  Chapter V  ‘Place  of  taxable  transactions’,  the  following 

(4) 
Articles 13a and 13b are added: 

‘Article 13a 

The place where a non-taxable legal person is established, as referred to in the first 
subparagraph of Article 56(2) and Articles 58 and 59 of Directive 2006/112/EC, shall 
be  the  place  where  that  non-taxable  legal  person  has  established  his  business  as 
defined in Article 10 or has a fixed establishment as defined in Article 11(1) of this 
Regulation.  

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Article 13b 

For  the  application  of  Directive  2006/112/EC,  the  following  shall  be  regarded  as 
‘immovable property’: 

(a) 

(b) 

(c) 

(d) 

any  specific  part  of  the  earth,  on  or  below  its  surface,  over  which  title  and 
possession can be created; 

any building or construction fixed to or in the ground above or below sea level 
which cannot be easily dismantled or moved; 

any  item  making  up  an  integral  part  of  a  building  or  construction  without 
which  the  building  or  construction  is  incomplete,  such  as  doors,  windows, 
roofs, staircases and lifts; 

any  item,  equipment  or  machine  permanently  installed  in  a  building  or 
construction  which  cannot  be  moved  without  destroying  or  altering  the 
building or construction.’ 

(5) 

In Article 18(2), the following second subparagraph is added: 

irrespective  of 

‘However, 
the  supplier  of 
telecommunications,  broadcasting  or  electronic  services  may  regard  a  customer 
established within the Community as a non-taxable person as long as that customer 
has not communicated his individual VAT identification number to the supplier.’ 

the  contrary, 

information 

to 

(6) 

In Article 24, the following paragraph 3 is added: 

‘3.  To  determine  the  place  which  best  ensures  taxation  at  the  place  of  actual 
consumption within the meaning of paragraphs 1 and 2, account shall, in particular, 
be taken of the following: 

(a) 

(b) 

for hiring of a means of transport, other than short-term hiring, the place where 
the  means  of  transport  is  put  at  the  disposal  of  the  customer  or  a  third  party 
acting  on  his  behalf  unless  there  is  evidence  that  the  means  of  transport  is 
going to be used elsewhere; 

for services other than the hiring of means of transport, the place of business in 
the case of a non-taxable legal person or the permanent address in the case of a 
natural person  unless  there  is  evidence that  the  service  is  actually  used  at  the 
place where that person usually resides.’ 

In Section 4 ‘Place of supply of services’ of Chapter V ‘Place of taxable transactions’, 

(7) 
the following Subsections 3a, 3b and 3c are inserted: 

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‘SUBSECTION 3A 

IRREBUTTABLE PRESUMPTIONS FOR CUSTOMER LOCATION 

Article 24a 

1.  Where  a  supplier  of  telecommunications,  broadcasting  or  electronic  services 
provides those services at a location such as a telephone box, a telephone kiosk, a wi-
fi hot spot, an internet café, a restaurant or a hotel lobby where the physical presence 
of  the  recipient  of  the  service  is  needed  for  the  service  to  be  rendered  to  him,  the 
presumption shall be that, for the application of Articles 44, 58 and 59a of Directive 
2006/112/EC,  the  customer  is  established,  has  his  permanent  address  or  usually 
resides  at  the  place  of  that  location  and  the  service  is  effectively  used  and  enjoyed 
there. This presumption may not be rebutted by any means in fact or law. 

2. If the location referred to in paragraph 1 of this Article is on board a ship, aircraft 
or train carrying out a passenger transport operation within the Community pursuant 
to Articles 37 and 57 of Directive 2006/112/EC, the country of the location shall be 
the country of departure of the passenger transport operation. 

Article 24b 

Where  pre-paid  credits  stored  on  a  SIM  card  are  used  by  a  customer  for 
telecommunications,  broadcasting  or  electronic  services,  the  presumption  shall  be 
that,  for  the  application  of  Articles 44,  58  and  59a  of  Directive  2006/112/EC,  the 
customer is established, has his permanent address or usually resides in the country 
identified by the mobile country code of that SIM card and the service is effectively 
used and enjoyed there. This presumption may not be rebutted by any means in fact 
or law. 

SUBSECTION 3B 

REBUTTABLE PRESUMPTIONS FOR CUSTOMER LOCATION 

Article 24c 

For  telecommunications,  broadcasting  or  electronic  services  supplied  to  a  non-
taxable person via a residential fixed land line, the presumption shall be that, for the 
application of Article 58 of Directive 2006/112/EC, the customer is established, has 
his permanent address or usually resides at the place of installation of the fixed land 
line. This presumption shall apply unless the supplier has information indicating that 
the customer is established, has his permanent address or usually resides elsewhere. 

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Article 24d 

For  telecommunications,  broadcasting  or  electronic  services  supplied  to  a  non-
taxable  person  through  mobile  networks  against  subsequent  collection  of  payment, 
the  presumption  shall  be  that,  for  the  application  of  Article 58  of  Directive 
2006/112/EC,  the  customer  is  established,  has  his  permanent  address  or  usually 
resides  in  the  country  identified  by  the  mobile  country  code  of  the  SIM  card  used 
when receiving those services. This presumption shall apply unless the supplier has 
information indicating that the customer is established, has his permanent address or 
usually resides elsewhere. 

Article 24e 

For  telecommunications,  broadcasting  or  electronic  services,  supplied  to  a  non-
taxable person, consisting in the transmission of signals for which the use of a device 
or  a  viewing  card  is  needed,  the  presumption  shall  be  that,  for  the  application  of 
Article 58 of Directive 2006/112/EC, the customer is established, has his permanent 
address or usually resides at the place of installation of the device or if that place is 
not  known  the  place  to  which  the  viewing  card  is  sent  with  a  view  to  being  used 
there.  This  presumption  shall  apply  unless  the  supplier  has  information  indicating 
that  the  customer  is  established,  has  his  permanent  address  or  usually  resides 
elsewhere. 

Article 24f 

Where services are supplied to a non-taxable person under circumstances other than 
those  referred  to  in  Articles 24a,  24b,  24c,  24d  and  24e  of  this  Regulation,  the 
presumption  shall  be  that,  for  the  application  of  the  first  subparagraph  of 
Article 56(2)  and  Article 58  of  Directive  2006/112/EC,  the  customer  is  established, 
has his permanent address or usually resides at the place identified as such pursuant 
to Article 24g of this Regulation. 

SUBSECTION 3C 

EVIDENCE FOR THE IDENTIFICATION OF CUSTOMER LOCATION 

Article 24g 

1. For the purposes of applying the rules governing the place of supply laid down in 
the first subparagraph of Article 56(2) and Article 58 of Directive 2006/112/EC, the 
following shall, in particular, serve as evidence: 

(a) 

customer details such as the billing address of the customer; 

(b) 

the  Internet  Protocol  (IP)  address  of  the  device  used  by  the  customer  or  any 
method of geolocation; 

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(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

bank details such as the place where the bank account used for payment is and 
the billing address of the customer held by that bank; 

the  Mobile  Country  Code  (MCC)  of  the  International  Mobile  Subscriber 
Identity (IMSI)  stored on the Subscriber Identity Module (SIM) card used by 
the customer; 

the  location  of  the  residential  fixed  land  line  through  which  the  service  is 
supplied to the customer; 

in  relation  to  a  customer  who  is  selling  goods  via  the  Internet  or  similar 
electronic network, the place where the transport or dispatch of the goods sold 
by that customer initially begins; 

in  relation  to  a  customer  who  is  buying  goods  via  the  Internet  or  similar 
electronic  network,  the  place  where  the  transport  or  dispatch  of  the  goods 
bought by that customer finally ends; 

registration  details  of  the  means  of  transport  hired  by  the  customer,  if 
registration of that means of transport is required at the place where it is used, 
and other similar information; 

(i) 

other commercially relevant information obtained by the supplier. 

2.  In  identifying  the  place  where  the  customer  is  established,  has  his  permanent 
address or usually resides, two separate pieces of evidence shall be required provided 
that the evidence is not contradictory.’ 

In Section 4 ‘Place of supply of services’ of Chapter V ‘Place of taxable transactions’, 

(8) 
the following Subsection 6a is inserted: 

‘SUBSECTION 6A 

SUPPLY OF SERVICES CONNECTED WITH IMMOVABLE PROPERTY 

Article 31a 

1.  Services  connected  with  immovable  property  as  referred  to  in  Article 47  of 
Directive  2006/112/EC  shall  only  include  those  services  that  have  a  sufficiently 
direct  connection  with  that  property.  Services  shall  be  regarded  as  having  a 
sufficiently direct connection with immovable property in the following cases: 

(a)  where they are derived from an immovable property and that  property  makes 
up  a  constituent  element  of  the  service  and  is  central  and  essential  for  the 
services supplied; 

(b)  where they are provided to, or directed towards, an immovable property having 

as their object the legal or physical alteration of that property. 

2. Paragraph 1 shall cover, in particular, the following: 

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(a) 

the  drawing  up of  plans for  a  building  or parts of a building designated for a 
particular plot of land regardless of whether or not the building is erected; 

(b) 

the provision of on-site supervision or security services; 

(c) 

(d) 

the  construction  of  a  building  on  land  as  well  as  construction  and  demolition 
work performed on a building or parts of a building; 

the  construction  of  permanent  structures  on  land  as  well  as  construction  and 
demolition  work  performed  on  permanent  structures  such  as  pipeline  systems 
for gas, water, sewerage and the like; 

(e)  work on land, including agricultural services such as tillage, sowing, watering 

and fertilisation; 

(f) 

surveying and assessment of the risk and integrity of immovable property; 

(g) 

(h) 

(i) 

(j) 

(k) 

(l) 

the  valuation  of  immovable  property,  including  where  such  service  is  needed 
for insurance purposes, to determine the value of a property as collateral for a 
loan or to assess risk and damages in disputes; 

the  leasing  or  letting  of  immovable  property  other  than  that  covered  by 
point (c)  of  paragraph 3,  including  the  storage  of  goods  for  which  a  specific 
part of the property is assigned for the exclusive use of the customer; 

the provision of accommodation in the hotel sector or in sectors with a similar 
function,  such  as  holiday  camps  or  sites  developed  for  use  as  camping  sites, 
including the right to stay in a specific place resulting from the conversion of 
timeshare usage rights and the like; 

the  assignment  and  transmission  of  rights  other  than  those  covered  by 
points (h) and (i) to use the whole or parts of an immovable property, including 
the licence to use part of a property, such as the granting of fishing and hunting 
rights or access to lounges in airports, or the use of an infrastructure for which 
tolls are charged, such as a bridge or tunnel; 

the  maintenance,  renovation  and  repair  of  a  building  or  parts  of  a  building, 
including work such as cleaning, tiling, papering and parqueting; 

the  maintenance,  renovation  and  repair  of  permanent  structures  such  as 
pipeline systems for gas, water, sewerage and the like; 

(m) 

the installation or assembly of machines or equipment which, upon installation 
or assembly, qualify as immovable property; 

(n) 

the  maintenance  and  repair,  inspection  and  supervision  of  machines  or 
equipment if those machines or equipment qualify as immovable property; 

(o)  property management other  than portfolio management of investments in real 
estate  covered  by  point (h)  of  paragraph 3,  consisting  in  the  operation  of 
commercial, industrial or residential real estate by or on behalf of the owner of 
the property; 

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(p) 

(q) 

intermediation  in  the  sale  or  leasing  or  letting  of  immovable  property  and  in 
certain  interests  in  immovable  property  or  rights  in  rem  treated  as  tangible 
property, other than intermediation covered by point (d) of paragraph 3; 

legal services relating to the conveyance or the transfer of a title to immovable 
property and to certain interests in immovable property or rights in rem treated 
as  tangible  property,  such  as  notary  work,  or  the  drawing  up  of  a  contract  to 
sell or acquire such property, even if the underlying transaction resulting in the 
legal alteration of the property is not carried through. 

3. Paragraph 1 shall not cover the following: 

(a) 

(b) 

the drawing up of plans for a building or parts of a building if not designated 
for a particular plot of land; 

the  storage  of  goods  in  an  immovable  property  if  no  specific  part  of  the 
immovable property is assigned for the exclusive use of the customer; 

(c) 

the provision of advertising, even if it involves the use of immovable property; 

(d) 

(e) 

(f) 

intermediation in the provision of hotel accommodation or accommodation in 
sectors  with  a  similar  function,  such  as  holiday  camps  or  sites  developed  for 
use as camping sites, if the intermediary is acting in the name and on behalf of 
another person; 

telecommunications,  broadcasting  and  electronic  services  unless  covered  by 
Article 31c; 

the provision of a stand location at a fair or exhibition site together with other, 
related services to  enable the exhibitor to display items  such as design  of  the 
stand, transport and storage of the items, provision of machines, cable laying, 
insurance and advertising; 

(g) 

the installation or assembly, the maintenance and repair, the inspection or the 
supervision of machines or equipment which is not, or does not become, part of 
the immovable property; 

(h)  portfolio management of investments in real estate;  

(i) 

legal services other than those covered by point (q) of paragraph 2, connected 
to  contracts,  including  advice  given  on  the  terms  of  a  contract  to  transfer 
immovable property, or to enforce such a contract, or to prove the existence of 
such a contract, where such services are not specific to a transfer of a title on 
an immovable property. 

Article 31b 

Where  equipment  is  put  at  the  disposal  of  a  customer  with  a  view  to  carrying  out 
work  on  immovable  property,  that  transaction  shall  only  be  a  supply  of  services 
connected  with  immovable  property  if  the  supplier  assumes  responsibility  for  the 
execution of the work. 

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A supplier who provides the customer with equipment together with sufficient staff 
for its operation with a view to carrying out work shall be presumed to have assumed 
responsibility  for the  execution of  that work. This presumption may be  rebutted  by 
any means in fact or law in order to establish who is assuming responsibility for the 
execution of the work. 

Article 31c 

The supply of telecommunications, broadcasting or electronic services, provided by a 
taxable  person  acting  in  his  own  name  together  with  accommodation  in  the  hotel 
sector or in sectors with a similar function, such as holiday camps or sites developed 
for use as camping sites, shall be regarded either as being part of a single transaction 
consisting  in  the  provision  of  accommodation,  or  as  ancillary  to  the  provision  of 
accommodation,  depending  on  whether 
the 
accommodation or separately.’ 

together  with 

is  charged 

it 

(9) 
In  Subsection 7  ‘Supply  of  cultural,  artistic,  sporting,  scientific,  educational, 
entertainment, and similar services’ of Section 4 ‘Place of supply of services (Articles 43 to 
59  of  Directive  2006/112/EC)’  of  Chapter 5  ‘Place  of  taxable  transactions’,  the  following 
Article 33a is added: 

‘Article 33a 

The  supply  of  tickets  granting  access  to  a  cultural,  artistic,  sporting,  scientific, 
educational,  entertainment  or  similar  event  by  an  intermediary  acting  in  his  own 
name but on behalf of the organiser or by a taxable person, other than the organiser, 
acting  on  his  own  behalf,  shall  be  covered  by  Article 53  and  Article 54(1)  of 
Directive 2006/112/EC.’ 

In  point (4)  ‘Point (4)  of  Annex II  to  Directive  2006/112/EC:’  of  Annex I,  the 

(10) 
following points (f) and (g) are added: 

‘(f) 

receiving  radio  or  television  programmes  distributed  via  a  radio  or  television 
network, the Internet or similar electronic network for listening to or viewing 
programmes  at  the  moment  chosen  by  the  user  and  at  the  user’s  individual 
request  on  the  basis  of  a  catalogue  of  programmes  selected  by  the  media 
service provider such as TV or video on demand; 

(g) 

receiving radio or television programmes via the Internet or similar electronic 
network  (IP  streaming)  unless  the  programmes  are  broadcast  simultaneously 
over traditional radio and television networks.’ 

Article 2  

For telecommunications, radio and television broadcasting or electronic services supplied by a 
supplier established within the Community to a non-taxable person who is established, has his 
permanent address or usually resides there, the following shall apply: 

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(a) 

(b) 

if the services are supplied or the supply of services is completed, prior to 1 January 
2015,  the  place  of  supply  shall  be  the  place  where  the  supplier  is  established  as 
provided  for  in  Article 45  of  Directive  2006/112/EC  regardless  of  when  the  VAT 
becomes chargeable; 

if the services are supplied or the supply of services is completed on 1 January 2015 
or  later,  the  place  of  supply  shall  be  governed  by  the  place  where  the  customer  is 
established,  has  his  permanent  address  or  usually  resides,  even  if  the  VAT  became 
chargeable prior to that date. 

Article 3 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

It shall apply from 1 January 2015. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the Council 
The President 

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