Proposal for a COUNCIL IMPLEMENTING REGULATION amending Implementing Regulation (EU) No 282/2011 as regards certain exemptions for intra-Community transactions
Date: 2017-10-04
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: European tax cooperation, VAT, goods and services, intra-EU trade, tax collection, tax harmonisation, tax law, taxpayer

EUROPEAN 
COMMISSION 

Brussels, 4.10.2017  
COM(2017) 568 final 

2017/0249 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

amending Implementing Regulation (EU) No 282/2011 as regards certain exemptions for 
intra-Community transactions 

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EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

On  7 April  2016,  the  Commission  adopted  the Action  Plan  on  VAT  –  Towards  a  single  EU 
VAT area – Time to decide1 (VAT Action Plan). There the Commission announced, inter alia, 
its  intention  to  adopt  a  definitive  VAT  system  for  Business-to-Business  (B2B)  intra-Union 
cross-border trade based on the principle of taxation in the Member State of destination of the 
goods in order to create a robust single European VAT area. A legislative proposal for such a 
simpler  and  fraud-proof  definitive  VAT  system  for  intra-Union  trade  was  included  in  the 
Commission’s Work Programme for 20172. 

In  its  conclusions  of  25 May  20163,  the  Council  took  note  of  the  points  made  by  the 
Commission in its VAT Action Plan as regards the way forward towards the definitive VAT 
system  and  of  its  intention  to  present,  as  a  first  step,  a  legislative  proposal  in  2017  for  the 
definitive VAT system for cross-border trade. It also reiterated its view that the principle of 
“taxation in the Member State of origin of the supply of goods or services” should be replaced 
by  the  principle  of  “taxation  in  the  Member  State  of  destination”  for  the  definitive  VAT 
system for B2B transactions. 

In  its  conclusions  of  8 November  20164  the  Council  stated  that,  while  the  Commission  is 
working  on  the  definitive  VAT  system  for  intra-Union  trade,  improvements  to  the  current 
VAT  system  should  be  made  in  the  meantime.  In  this  context,  the  Council  requested 
amendments in four areas: 

• 

Proof  of  intra-Community  supply:  the  Council  invited  the  Commission  to  explore 
possibilities  for  a  common  framework  of  recommended  criteria  for  the  documentary 
evidence required to claim an exemption for intra-Community supplies. 

•  VAT  identification  number:  the  Council  invited  the  Commission  to  present  a 
legislative  proposal  aimed  at  making  the  valid  VAT  identification  number  of  the 
taxable person or non-taxable legal person acquiring the goods, allocated by a Member 
State other than that in which dispatch or transport of the goods began, an additional 
substantive  condition  for  the  application  of  the  exemption  in  respect  of  an  intra-
Community supply of goods. 

•  Chain  transactions:  the  Council  invited  the  Commission  to  analyse  and  propose 
uniform  criteria  and  appropriate  legislative  improvements  which  would  lead  to 
increased legal certainty and harmonised application of VAT rules when determining 
the VAT treatment of the transaction chain, including triangular transactions. 

•  Call-off stock: the Council invited the Commission to propose modifications to the 
current VAT rules in order to allow simplification and uniform treatment for call-off 

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COM(2016) 148 final. 
See Commission Work Programme 2017: Delivering a Europe that protects, empowers and defends, 
COM(2016) 710 final.  
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1487237841093&uri=CELEX:52016DC0710 
See: http://www.consilium.europa.eu/en/press/press-releases/2016/05/25-conclusions-vat-action-plan/ 
Council  conclusions  of  8  November  2016  on  Improvements  to  the  current  EU  VAT  rules  for  cross-
(No.  14257/16  FISC  190  ECOFIN  1023  of  9 November  2016) 
border 
http://data.consilium.europa.eu/doc/document/ST-14257-2016-INIT/en/pdf 

transactions 

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stock arrangements in cross-border trade. To this effect, "call-off stock" refers to the 
situation  where  a  vendor  transfers  goods  to  a  warehouse  at  the  disposal  of  a  known 
acquirer in another Member State and that acquirer becomes the owner of the  goods 
upon calling them off the warehouse. 

In  order  to  meet  the  request  of  the  Council,  amendments  to  the  VAT  Implementing 
Regulation5  are  proposed  for  the  first  domain.  The  three  others  require  modifications  to  the 
VAT Directive6 and are therefore subject to a separate proposal. 

• 

Consistency with other Union policies 

The creation of a simple, modern and fraud-proof VAT system is one of the fiscal priorities 
set out by the Commission for 20177. 

Combating missing trader VAT fraud is also one of the European Union’s ("Union" or "EU") 
priority crime areas, under the 2014-2017 EU Policy Cycle of Europol8. 

Reducing  administrative  burden,  particularly  for  SMEs,  is  also  an  important  objective 
highlighted in the Union’s growth strategy9. 

The proposed initiative and its objectives are consistent with the Union SME policy as set by 
the Small Business Act (SBA)10, in particular principle VII on helping SMEs to benefit more 
from the opportunities offered by the Single Market. 

It is consistent with the Single market strategy (SMS)11 and the objectives of the Regulatory 
Fitness and Performance programme (REFIT). 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article 397  of  the  VAT  Directive.  This  article  provides  that  the 
Council,  acting  unanimously  on  a  proposal  from  the  Commission,  shall  adopt  the  measures 
necessary to implement the VAT Directive. 

• 

Subsidiarity (for non-exclusive competence)  

According to the principle of subsidiarity, as set out in Article 5(3) of the Treaty on European 
Union  (TEU),  action  at  Union  level  may  only  be  taken  if  the  envisaged  aims  cannot  be 

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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  2006/112/EC  of  28 November  2006  on  the  common  system  of  value  added  tax 
(OJ L 347, 11.12.2006, p. 1). 
Annual  Growth  Survey  2017;  see  https://ec.europa.eu/info/publications/2017-european-semester-
annual-growth-survey_en 
EMPACT priorities (European multidisciplinary platform against criminal threats) 
Europe  2020  –  A  strategy  for  smart,  sustainable  and 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:2020:FIN:EN:PDF 
Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic and Social Committee and the Committee of the Regions – “Think Small First” – A “Small 
Business Act” for Europe (COM(2008) 394 final). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  regions  –  "Upgrading  the  Single  Market: 
more opportunities for people and business" (COM(2015) 550 final). 

inclusive  growth:  see  http://eur-

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achieved sufficiently by the Member States alone and can therefore, by reason of the scale or 
effects of the proposed actions, be better achieved at Union level. 

Issues  related  to  the  proof  of  intra-Community  transport  for  the  purposes  of  the  VAT 
exemption  for  cross-border  trade  can  be  better  addressed  at  Union  level  than  by  individual 
Member States since, inevitably, more than one Member State is involved. Moreover, VAT is 
a tax harmonised at Union level and therefore any new initiative for implementing a specific 
rule  of  the  VAT  Directive  requires  a  proposal  by  the  Commission  to  amend  the  VAT 
Implementing Regulation. 

The proposed measure on the documentary evidence required to claim an exemption for intra-
Community  supplies  has  unanimously  been  requested  by  the  Member  States  which 
demonstrates that action at Union level is likely to be more effective as, at national level, such 
action has proven not to be sufficiently successful. 

• 

Proportionality 

The proposed measure in relation to the proof of transport of goods from one Member State to 
another  is  a  targeted  reply  towards  a  specific  problem  in  relation  to  a  VAT  rule  which  has 
proven  to  be  difficult  to  apply  in  a  systematic  and  uniform  way  and  which  has  created 
problems for taxable persons as well as for tax administrations. 

• 

Choice of the instrument 

This proposal amends Council Implementing Regulation (EU) No 282/2011. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

The Commission has set up two working groups for discussions at technical level regarding 
VAT,  namely  the  Group  on  the  Future  of  VAT  (GFV)  and  the  VAT  Expert  Group  (VEG). 
These groups discussed improvements to the current VAT system, including the issue of the 
proof of transport of goods from one Member State to another in the framework of the VAT 
exemption for intra-Community B2B supplies of goods. In addition, a public consultation was 
organised from 20 December 2016 to 20 March 2017 resulting in 121 contributions12. 

• 

Impact assessment 

Reference  is  made  to  the  separate  impact  assessment  [SWD(2017)325  and  its  summary 
SWD(2017)326] which has been carried out in relation to, inter alia, this proposal. 

The impact assessment for the proposal was considered by the Regulatory Scrutiny Board on 
14 July 2017 [Ares(2017)3573962-SEC(2017)423]. The Board gave a positive opinion to the 
proposal with some recommendations that have been taken into account. The opinion of the 

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See,  about  stakeholder  consultation,  Annex  2  of  the  Staff  Working  Document  -  Impact  assessment 
accompanying  the  document  Proposal  for  a  Council  Directive  amending  Directive  2006/112/EC  as 
regards  harmonising  and  simplifying  certain  rules  in  the  value  added  tax  system  and  introducing  the 
definitive system for the taxation of trade between Member States and the results of the related open 
public consultation: 
https://ec.europa.eu/taxation_customs/consultations-get-involved/tax-consultations_en  

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Board  and  the  recommendations  are  mentioned  in  Annex 1  to  the  Staff  Working  Document 
for the impact assessment accompanying this proposal. 

4. 

BUDGETARY IMPLICATIONS 

The proposal will have no negative implications for the Union budget. 

5. 

OTHER ELEMENTS 

Detailed explanation of the specific provisions of the proposal 

• 
In 1994 the Commission drew the attention of the Council and the European Parliament13 on 
the  question  of  the  evidence  to  be  provided  in  order  to  prove  that  the  conditions  for  the 
exemption  of  an  intra-Community  supply  of  goods  are  met.  Already  at  that  time  the 
Commission, less than 2 years after the introduction of the current transitional arrangements 
for  the  taxation  of  intra-Community  trade  (which  entail  that  an  intra-Community  B2B 
transaction  on  goods  gives  rise  to  an  exempt  supply  of  goods  in  the  Member  State  of 
departure  and  a  taxed  intra-Community  acquisition  in  the  Member  State  of  arrival),  pointed 
out that that issue was a source of difficulty. 

Later  discussions  at  Union  level  did  not  lead  to  practical  results.  Further  the  VAT 
Implementing  Regulation  does  currently  not  contain  any  provision  on  this  point,  although 
over the years the case law of the Court of Justice of the European Union (CJEU) has dealt 
with the proof of the exemption for intra-Community supplies14. 

Nevertheless, during the consultation process launched in connection with the Green Paper on 
the future of VAT15, numerous contributions pointed again to this issue as a major problem of 
the current VAT system. Clear and stable rules that provide legal certainty for businesses are 
essential. At the same time, tax administrations must be able to monitor and ensure the correct 
application  of  the  exemption,  in  particular  as  exempt  intra-Community  supplies  are  often  a 
basic component of cross-border carousel fraud schemes. 

The solution proposed consists of introducing a rebuttable presumption in two specific cases 
which  involve  the  certified  taxable  person  status.  As  regards  the  certified  taxable  person 
status, reference is made to the proposed legislation on the definitive VAT regime for intra-
Community trade. 

In the first situation, whereby the goods have been transported or dispatched by the supplier, 
directly  or  by  a  third  party  on  his  behalf,  and  the  supplier  has  the  certified  taxable  person 
status, a presumption is introduced according to which the goods have been transported from 
the  Member  State  of  supply  (departure)  to  another  Member  State  in  case  the  supplier  is  in 
possession  of  two  non-contradictory  documents  (a  list  of  which  is  contained  in  the 

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Report  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the  operation  of  the 
transitional  arrangements  for  charging  VAT  in  intra-Community  trade  (COM(94)515final  of  23 
November 1994). 
See e.g. judgements of 27 September 2007, Teleos, C-409/04, ECLI:EU:C:2007:548; of 27 September 
2007, Collée, C-146/05, ECLI:EU:C:2007:549; of 27 September 2007, Twoh International, C-184/05, 
ECLI:EU:C:2007:550; of 16 December 2010, Euro Tyre Holding, C-430/09, ECLI:EU:C:2010:786; of 
27 September 2012, VSTR, C-587/10, ECLI:EU:C:2012:592; of 6 September 2012, Mecsek-Gabona, C-
273/11, ECLI:EU:C:2012:547; of 9 October 2014, Traum, C-492/13, ECLI:EU:C:2014:2267. 
Green  paper  on  the  future  of  VAT  –  Towards  a  simpler,  more  robust  and  efficient  VAT  system 
COM(2010) 695;  Commission  Staff  Working  Document  accompanying  document  to  the  Green  Paper 
on  the  future  of  VAT  Towards  a  simpler,  more  robust  and  efficient  VAT  system  (SEC(2010) 1455, 
1.12.2010). 

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Regulation) attesting to the transport. However, a tax authority may rebut this presumption on 
the basis of evidence indicating that the goods were not transported from the Member State of 
supply to another Member State. 

In the second situation, where the customer is a certified taxable person and where the goods 
have  been  transported  or  dispatched  by  that  customer,  directly  or  by  a  third  party  on  his 
behalf,  a  presumption  is  introduced  according  to  which  the  goods  can  be  regarded  as 
transported  from  the  Member  State  of  supply  to  another  Member  State  if  the  supplier  is  in 
possession of (i) a written statement by the acquirer that the goods have been transported by 
the  acquirer  or  on  his  behalf  with  mention  of  the  Member  State  of  arrival  of  the  goods 
(without,  however,  the  need  to  disclose  the  exact  destination  in  order  to  preserve  the 
confidentiality of the acquirer's business); and (ii) two non-contradictory documents (of those 
mentioned in the list contained in the Regulation) attesting to the transport. The statement in 
(i), which is to be recorded by the supplier, has to be provided no later than on the tenth day 
of the month following the supply. This period should provide the acquirer sufficient time to 
transmit  the  information  while,  at  the  same  time,  it  does  not  exceed  the  time  limit  for  the 
supplier to issue an invoice (at the latest on the fifteenth of the month following the supply in 
accordance with the conditions of Article 222 of the VAT Directive). 

For  the  situations  which  are  not  covered  by  these  presumptions,  e.g.  because  the  taxable 
persons  involved  do  not  have  the  certified  taxable  person  status,  the  current  rules,  as 
interpreted by the CJEU, remain applicable. 

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2017/0249 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

amending Implementing Regulation (EU) No 282/2011 as regards certain exemptions for 
intra-Community transactions 

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 tax1, and in particular Article 397 thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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In  its  VAT  Action  Plan2,  the  Commission  announced  its  intention  to  put  forward  a 
proposal  for  a  definitive  value  added  tax  (VAT)  system  in  relation  to  cross-border 
business-to-business trade between Member States. The Council, in its conclusions of 
8 November  20163,  invited  the  Commission  to  propose  in  the  meantime  certain 
improvements to the Union VAT rules for cross-border transactions, inter alia for the 
purposes of exemptions in respect of intra-Community transactions. 

Directive 2006/112/EC sets out a number of conditions to exempt from VAT supplies 
of  goods  in  the  context  of  certain  intra-Community  transactions.  One  of  those 
conditions  is  that  the  goods  have  to  be  transported  or  dispatched  from  one  Member 
State to another. 

However, the divergent approach amongst Member States in the application of these 
exemptions for cross-border transactions has created difficulties and legal uncertainty 
for businesses. This is contrary to the objective of enhancing intra-Union trade and to 
the abolition  of  the fiscal borders.  It is therefore important  to  specify  and  harmonise 
the conditions under which the exemptions can apply. 

As cross-border VAT fraud is primarily linked to the exemption for intra-Community 
supplies,  it  is  necessary  to  specify  certain  circumstances  in  which  goods  should  be 
considered as having been transported or dispatched from the territory of the Member 
State of supply. 

OJ L 347, 11.12.2006, p. 1. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council  and  the  European 
Economic and Social Committee on an action plan on VAT - Towards a single EU VAT area – Time to 
decide (COM(2016) 148 final of 7.4.2016). 
Council  conclusions  of  8 November  2016  on  Improvements  to  the  current  EU  VAT  rules  for  cross-
border transactions (No. 14257/16 FISC 190 ECOFIN 1023 of 9 November 2016). 

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(5) 

(6) 

In  order  to  provide  a  practical  solution  for  businesses  and  also  assurance  for  tax 
administrations, two rebuttable presumptions are introduced in respect of transactions 
involving certified taxable persons in Implementing Regulation (EU) No 282/2011.4 

Taking  into  account  that  the  provisions  included  in  this  Regulation  are  linked  to 
amendments introduced by Council Directive […]5/EU as regards the certified taxable 
person,  this  Regulation  should  apply  from  the  date  of  the  application  of  those 
amendments.  

(7) 

Implementing  Regulation 
accordingly, 

(EU)  No 282/2011  should 

therefore  be  amended 

HAS ADOPTED THIS REGULATION: 

In Chapter VIII of Implementing Regulation (EU) No 282/2011, the following SECTION 2a 
is inserted: 

Article 1 

'SECTION 2a 

Exemptions for intra-Community transactions  

(Articles 138 to 142 of Directive 2006/112/EEC) 

Article 45a 

1. 
For  the  purposes  of  applying  the  exemptions  laid  down  in  Article 138  of 
Directive  2006/112/EC,  it  shall  be  presumed  that  goods  have  been  dispatched  or 
transported  to  a  destination  outside  their  respective  territory  but  within  the 
Community in either of the following circumstances: 

(a) 

the  vendor  is  a  certified  taxable  person  within  the  meaning  of  Article 13a  of 
Directive  2006/112/EC,  he  indicates  that  the  goods  have  been  transported  or 
dispatched by him or by a third party on his behalf, and he is in possession of at 
least two items of non-contradictory evidence listed in paragraph 3 confirming 
the transport or dispatch; 

(b) 

the person acquiring the goods is a certified taxable person within the meaning 
of Article 13a of Directive 2006/112/EC and the vendor is in possession of the 
following: 

(i)  

a written statement from the person acquiring the goods stating  that the 
goods have been transported or dispatched by him, or by a third party on 
his behalf, and referring to the Member State of destination of the goods; 

(ii)  

two items of non-contradictory evidence listed in paragraph 3 confirming 
the transport or dispatch. 

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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 (OJ L 77, 23.3.2011, p. 
1). 
Council  Directive  […]/EU  of  […]  amending  Directive  2006/112/EC  as  regards  harmonising  and 
simplifying  certain  rules  in  the  value  added  tax  system  and  introducing  the  definitive  system  for  the 
taxation of trade between Member States (OJ L […]) 

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The person acquiring the goods must furnish the written statement, referred to in point 
(b)(i), to the vendor by no later than the tenth day of the month following the supply. 

2. 
A tax authority may rebut a presumption that has been made under paragraph 1 
where there are indications of misuse or abuse by the vendor or the person acquiring 
the goods. 

For the purposes of paragraph 1, the following shall be accepted as evidence of 

3. 
the transport or dispatch: 

(a) 

a document signed by the person acquiring the goods, or by a person authorised 
on  his  behalf,  acknowledging  receipt  of  the  goods  in  the  Member  State  of 
destination; 

(b)  documents  relating  to  the  transport  or  dispatch  of  the  goods  such  as  a  signed 
CMR document or note, a bill of lading, an airfreight invoice, an invoice from 
the  carrier  of  the  goods,  an  insurance  policy  with  regard  to  the  transport  or 
dispatch of the goods or bank documents proving payment of the transport or 
dispatch of the goods; 

(c)  official  documents  issued  by  a  public  authority,  such  as  a  notary,  confirming 

the arrival of the goods in the Member State of destination; 

(d) 

(e) 

(f) 

(g) 

(h) 

a  receipt  issued  in  the  Member  State  of  destination  confirming  the  storage  of 
the goods in that Member State; 

a certificate issued in the Member State of destination by a professional body 
in  that  Member  State  such  as  by  a  chamber  of  commerce  or  industry 
confirming the destination of the goods; 

a contract between the vendor and the person acquiring the goods or a purchase 
order indicating the destination of the goods; 

correspondence  between  the  parties  involved  in  the  transaction  indicating  the 
destination of the goods; 

the  VAT  return  of  the  person  acquiring  the  goods  declaring  the  intra-
Community acquisition of the goods. 

Article 2 

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 2019. 

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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