Proposal for a COUNCIL IMPLEMENTING DECISION amending Implementing Decision (EU) 2018/279 authorising Malta to apply a special measure derogating from Article 287 of Directive 2006/112/EC on the common system of value added tax
Date: 2020-09-30
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: Malta, VAT, derogation from EU law, small business, tax exemption

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   EUROPEAN COMMISSION  Brussels, 30.9.2020  COM(2020) 617 final 2020/0281 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION amending Implementing Decision (EU) 2018/279 authorising Malta to apply a special measure derogating from Article 287 of Directive 2006/112/EC on the common system of value added tax  
 
EXPLANATORY MEMORANDUM 

Pursuant  to  Article  395(1)  of  Council  Directive  2006/112/EC  of  28  November  2006  on  the 
common system of valued added tax1 (‘the VAT Directive’), the Council, acting unanimously 
on  a  proposal  from  the  Commission,  may  authorise  any  Member  State  to  apply  special 
measures  for  derogation  from  the  provisions  of  that  Directive  in  order  to  simplify  the 
procedure for collecting VAT or to prevent certain forms of tax evasion or avoidance. 

By  letter  registered  with  the  Commission  on  5  June,  Malta  requested  an  authorisation  to 
continue  to  apply,  until  31  December  2024,  a  measure  derogating  from  Article  287  of  the 
VAT Directive, allowing Malta to exempt from VAT taxable persons whose annual turnover 
is no higher than EUR 20 000. 

In accordance with Article 395(2) of the VAT Directive, the Commission informed the other 
Member States by letter dated 12 June 2020 of the request made by Malta. The Commission 
notified  Malta  by  letter  dated  15  June  2020  that  it  had  all  the  information  necessary  to 
consider the request. 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Chapter 1 of Title XII of the VAT Directive allows for the possibility for Member States to 
apply  special  schemes  for  small  enterprises,  including  the  possibility  of  exempting  taxable 
persons below  a certain  annual  turnover. This  exemption  implies that a taxable person does 
not have to charge VAT on his supplies and, consequently, he or she cannot deduct the VAT 
on his inputs. 

Under  Article  287  of  the  VAT  Directive,  particular  Member  States  which  acceded  after 
1 January 1978  may  exempt  taxable  persons  whose  annual  turnover  is  no  higher  than  the 
equivalent  in  national  currency  of  the  amounts  at  the  conversion  rate  on  the  day  of  their 
accession as specified in that provision. Malta started applying the EUR on 1 January 2008.  

Under point 13 of Article 287 of Directive 2006/112/EC, Malta may exempt from VAT three 
categories  of  taxable  persons:  taxable  persons  whose  annual  turnover  is  no  higher  than 
EUR 37 000 if the economic activity consists principally in the supply of goods; EUR 24 300 
if the economic activity consists principally in the supply of services with a low value added 
(high inputs); and EUR 14 600 in other cases, namely supplies of services with a high value 
added (low inputs). 

Since  its  accession,  Malta  has  made  use  of  this  provision  to  assist  small  businesses  and  to 
encourage  new  businesses  to  start  operating.  This  has  proved  to  be  a  useful  simplification 
measure as it removes  many  of the VAT  obligations for businesses operating below certain 
annual turnovers, which reduced the operating costs of these businesses. At the same time, the 
effect  on  revenue  was  insignificant.  The  Maltese  government  is  committed  to  continue  to 
apply  measures  to  simplify  the  obligations  of  small  operators,  in  line  with  the  European 
Union’s  objectives  for  small  businesses,  as  laid  out  in  the  Commission  Communication 
“Think small first” - a “Small Business Act” for Europe”2. 

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OJ L 347, 11.12.2006, p.1. 
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, Brussels, 25.6.2008, COM(2008)394 of 25 June 2008. 

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For  this  purpose,  with  Implementing  Decision  (EU)  2018/2793  Malta  was  authorised  to 
increase  the  threshold  for  the  category  with  the  lowest  turnover,  that  is  EUR 14 600,  to 
EUR 20 000  until  30  December  2020.  Malta  requested  to  prolong  the  application  of  this 
measure until 2024.  

The adoption and subsequent transposition of this special measure to domestic law on 1 July 
2018  led  to  over  1262  small  enterprises  benefitting  from  the  increased  threshold  for  annual 
turnover under such relative category of the simplification scheme for SMEs. 

The  special  measure  has  reduced  significantly  the  administrative  burden  and  costs  for  the 
substantial amount of Maltese small enterprises indicated above. Moreover, the application of 
the  special  measure  has  enabled  Malta  to  allocate  more  resources  to  the  fight  against  VAT 
fraud and the enhancement of enforcement of the current VAT system. 

The  derogation  measure,  simplifying  the  obligations  of  small  operators,  is  in  line  with  the 
objectives set out by the European Union for small businesses. 

It  is  therefore  appropriate  to  authorise  Malta  to  apply  the  derogating  measure  until  31 
December 2024.  

Consistency with existing policy provisions in the policy area 

• 
The derogating measure is in line with the philosophy of Council Directive (EU) 2020/2854 
amending Articles 281 to 294 of the VAT Directive on a special scheme for small enterprises, 
which resulted from the VAT action plan5, and aims to create a modern, simplified scheme for 
those  businesses.  In  particular,  it  seeks  to  reduce  VAT  compliance  costs  and  distortions  of 
competition  both  domestically  and  at  EU  level,  reduce  the  negative  impact  of  the  threshold 
effect, and facilitate business compliance as well as monitoring by tax administrations. 

Moreover, the threshold of EUR 20 000 is consistent with Directive (EU) 2020/285, insofar as 
it allows Member States to set the annual turnover threshold required for an exemption from 
VAT at a level no higher than EUR 85 000 (or the equivalent in national currency). 

Similar derogations, exempting from VAT taxable persons whose annual turnover is below a 
certain  threshold,  as  provided for in  Articles 285 and 287 of the VAT  Directive, have been 
granted  to  other  Member  States.  The  Netherlands6  has  been  granted  a  threshold  of  EUR  25 
000;  Italy7  a  threshold  of  EUR  30  000;  Luxembourg8  a  threshold  of  EUR  35  000;  Latvia9, 

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Council  Implementing  Decision  (EU)  2018/279  of  20  February  2018  authorising  Malta  to  apply  a 
special measure derogating from Article 287 of Directive 2006/112/EC on the common system of value 
added tax (OJ L 54, 24.2.2018, p. 14–15). 
Council  Directive  (EU)  2020/285  of  18  February  2020  amending  Directive  2006/112/EC  on  the 
common system of value added tax as regards the special scheme for small enterprises and Regulation 
(EU)  No  904/2010  as  regards  the  administrative  cooperation  and  exchange  of  information  for  the 
purpose  of  monitoring  the  correct  application  of  the  special  scheme  for  small  enterprises  (OJ  L  62, 
2.3.2020, p. 13). 
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. 
Council  Implementing  Decision  (EU)  2018/1904  of  4  December  2018  authorising  the  Netherlands  to 
introduce  a  special  measure  derogating  from  Article  285  of  Directive  2006/112/EC  on  the  common 
system of value added tax (OJ L 310, 6.12.2018, p. 25). 
Council  Implementing  Decision  (EU)  2016/1988  of  8  November  2016  amending  Implementing 
Decision  2013/678/EU  authorising  the  Italian  Republic  to  continue  to  apply  a  special  measure 
derogating from Article 285 of Directive 2006/112/EC on the common system of value added tax (OJ L 
306, 15.11.2016, p.11-12). 

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Poland10  and  Estonia11  have  been  granted  a  threshold  of  EUR  40  000;  Croatia12  and 
Lithuania13 a threshold of EUR 45 000; Hungary14 a threshold of EUR 48 000; Slovenia15 a 
threshold of EUR 50 000; and Romania16 a threshold of EUR 88 500. 

As already mentioned, derogations from the VAT Directive should always be limited in time 
so that their effects  can be assessed. The inclusion of an expiry date of the special measure 
until 31 December 2024, as requested by Malta, is aligned with the requirements of Directive 
(EU) 2020/285 on simpler VAT rules for small and medium-sized enterprises. That directive 
provides  for  1  January  2025  as  the  date  on  which  Member  States  will  have  to  apply  the 
national provisions, which they are required to adopt to comply with it. 

The proposed measure is therefore consistent with the provisions of the VAT Directive. 

• 

Consistency with other Union policies 

The  Commission  has  been  consistently  stressing  the  need  for  simpler  rules  for  small 
enterprises  in  its  annual  work  programmes.  In  this  regard,  the  2020  Commission  Work 
Programme17  refers  to  “a  dedicated  SME  Strategy  that  will  make  it  easier  for  small  and 
medium-sized businesses to operate, scale up and expand”. The derogating measure is in line 
with such objectives, as far as fiscal rules are concerned. It is notably consistent with the 2017 
Commission  Work  Programme18,  which  referred  specifically  to  VAT,  pointing  out  that  the 

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Council  Implementing  Decision  (EU)  2019/2210  of  19  December  2019  amending  Implementing 
Decision 2013/677/EU authorising Luxembourg to introduce a special measure derogating from Article 
285  of  Directive  2006/112/EC  on  the  common  system  of  value  added  tax  (OJ  L  332,  23.12.2019,  p. 
155). 
Council  Implementing  Decision  (EU)  2017/2408  of  18  December  2017  authorising  the  Republic  of 
Latvia  to  apply  a  special  measure  derogating  from  Article  287  of  Directive  2006/112/EC  on  the 
common system of value added tax (OJ L 342, 21.12.2017, p. 8). 
Council Implementing Decision (EU) 2018/1919 of 4 December 2018 amending Decision 2009/790/EC 
authorising  the  Republic  of  Poland  to  apply  a  measure  derogating  from  Article  287  of  Directive 
2006/112/EC on the common system of value added tax (OJ L 311, 7.12.2018, p. 32). 
Council Implementing Decision (EU) 2017/563 of 21 March 2017 authorising the Republic of Estonia 
to  apply  a  special  measure  derogating  from  Article  287  of  Directive  2006/112/EC  on  the  common 
system of value added tax (OJ L 80, 25.3.2017, p.33) 
Council  Implementing  Decision  (EU)  2017/1768  of  25  September  2017  authorising  the  Republic  of 
Croatia  to  introduce  a  special  measure  derogating  from  Article  287  of  Directive  2006/112/EC  on  the 
common system of value added tax (OJ L 250, 28.9.2017, p. 71). 
Council Implementing Decision (EU) 2017/1853 of 10 October 2017 amending Implementing Decision 
2011/335/EU authorising the Republic of Lithuania to apply a measure derogating from Article 287 of 
Directive 2006/112/EC on the common system of value added tax (OJ L 265, 14.10.2017, p. 15). 
Council Implementing Decision (EU) 2018/1490 of 2 October 2018 authorising Hungary to introduce a 
special measure derogating from Article 287 of Directive 2006/112/EC on the common system of value 
added tax (OJ L 252, 8.10.2018, p.38). 
Council  Implementing  Decision  (EU)  2018/1700  of  6  November  2018  amending  Implementing 
Decision  2013/54/EU  authorising  the  Republic  of  Slovenia  to  introduce  a  special  measure  derogating 
from  Article  287  of  Directive  2006/112/EC  on  the  common  system  of  value  added  tax  (OJ  L  285, 
13.11.2018, p. 78). 
COM  (2020)  292:  Proposal  for  a  COUNCIL  IMPLEMENTING  DECISION  amending  Implementing 
Decision (EU) 2017/1855 authorising Romania to apply a special measure derogating from Article 287 
of Directive 2006/112/EC on the common system of value added tax 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions  – Commission Work Programme 
2020 – A Union that strives for more (COM(2020) 37 final). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions  – Commission Work Programme 
2017 (COM(2016) 710 final). 

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administrative  burden  of  VAT  compliance  for  small  businesses  is  high  and  that  technical 
innovations pose new challenges for effective tax collection, and stressed the need to simplify 
VAT for smaller companies. 

Likewise,  the  measure  is  consistent  with  the  2015  single  market  strategy19,  where  the 
Commission set out to help small and medium-sized businesses grow, inter alia by reducing 
the administrative burdens that prevent them from taking full advantage of the single market. 
It  also  follows  the  philosophy  of  the  2013  Commission  Communication  ‘Entrepreneurship 
2020  Action  Plan:  Reigniting  the  entrepreneurial  spirit  in  Europe’20,  which  underlined  the 
need to simplify tax legislation for small businesses. 

Finally, the measure is in line with EU policies on small and medium-sized enterprises, as set 
out  in  the  2016  Start-Up  Communication21,  and  the  2008  Communication  ‘”Thinks  small 
first”  –  a  “Small  Business  Act”  for  Europe’22  which  called  on  the  Member  States  to  take 
account of the special features of SMEs when designing legislation and simplify the existing 
regulatory environment. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 395 of the VAT Directive 

• 

Subsidiarity (for non-exclusive competence)  

Considering the provision of the VAT Directive on which it is based, the proposal falls under 
the exclusive competence of the European Union. Hence, the subsidiarity principle does not 
apply. 

• 

Proportionality 

The Decision concerns an authorisation granted to a Member State upon its own request and 
does not constitute any obligation. 

Given  the  limited  scope  of  the  derogation,  the  special  measure  is  proportionate  to  the  aim 
pursued,  i.e.  to  simplify  the  tax  collection  for  small  taxable  persons  and  for  the  tax 
administration. 

• 

Choice of the instrument 

The Decision concerns an authorisation granted to a Member State upon its own request and 
does not constitute any obligation. 

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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 businesses (COM(2015) 550 final). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  –  Entrepreneurship  2020  Action 
Plan: Reigniting the entrepreneurial spirit in Europe (COM(2012) 795 final). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  –  Europe’s  Next  Leaders:  The 
Start-Up and Scale-Up Initiative (COM(2016) 733 final). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  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). 

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Given  the  limited  scope  of  the  derogation,  the  special  measure  is  proportionate  to  the  aim 
pursued,  i.e.  to  simplify  the  tax  collection  for  small  taxable  persons  and  for  the  tax 
administration. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

No stakeholder consultation has been conducted. The present proposal is based on a request 
made by Malta and concerns only this particular Member State. 

• 

Collection and use of expertise 

There was no need for external expertise. 

• 

Impact assessment 

The proposal for a Council Implementing Decision increases the threshold of annual turnover 
below which taxable persons may be exempted from VAT. It therefore extends the scope of 
the  simplification  measure  which  removes  many  of  the  VAT  obligations  for  businesses 
operating with an annual turnover no higher than EUR 20 000.  

Persons whose taxable turnover does not exceed the threshold will not have to register to be 
identified  for  VAT  purposes,  and  thus  the  administrative  burden  on  them  will  reduce  as  a 
result of the measure, since they will not need to keep VAT records or submit a VAT return. 
There  will  also  be  a  reduction  in  the  workload  for  the  tax  authorities.  This  will  have  a 
potential  positive  impact  on  the  reduction  of  administrative  burden  for  taxable  persons 
currently registered for VAT in Malta, and subsequently on tax administration.  

The budgetary impact in terms of VAT revenue for Malta has not led to the reduction of the 
national revenue budget.  

• 

Fundamental rights 

The proposal does not have any consequences for the protection of fundamental rights. 

4. 

BUDGETARY IMPLICATIONS 

The  proposal  has  no  implication  for  the  EU  budget  because  Malta  will  carry  out  a 
compensation  calculation  in  accordance  with  Article  6  of  Council  Regulation  (EEC 
EURATOM) 1553/89. 

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2020/0281 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

amending Implementing Decision (EU) 2018/279 authorising Malta to apply a special 
measure derogating from Article 287 of Directive 2006/112/EC on the common system of 
value added tax 

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 395(1), first subparagraph, thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

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Pursuant  to  Article  287,  point  (13),  of  Directive  2006/112/EC,  Malta  may  exempt 
from value added tax (‘VAT’) three categories of taxable persons: those whose annual 
turnover is no higher than EUR 37 000, if the economic activity consists principally in 
the supply  of  goods; EUR 24 300 if the economic activity consists principally in  the 
supply  of  services  with  a  low  value  added  (high  inputs),  and  EUR 14 600  in  other 
cases, namely supplies of services with a high value added (low inputs). 
By Council Implementing Decision (EU) 2018/2792 Malta was authorised to introduce 
a  special  measure  derogating  from  Article  287  of  Directive  2006/112/EC  (‘the 
derogating measure’) to  exempt from  VAT taxable persons whose economic activity 
consists  principally  in  supplies  of  services  with  a  high  value  added  (low  inputs)  and 
whose  annual  turnover  is  no  higher  than  EUR  20  000,  until  31  December  2020,  or 
until  the  entry  into  force  of  a  directive  amending  Articles  281  to  294  of  Directive 
2006/112/EC, whichever date is earlier.  

By  letter  registered  with  the  Commission  on  5  June  2020,  Malta  requested  an 
authorisation  to  continue  to  apply  the  derogating  measure  until  31  December  2024, 
being  the  date  by  which  Member  States  are  to  adopt  the  laws,  regulations  and 
administrative provisions necessary to comply with Council Directive (EU) 2020/2853, 
which lays down simpler VAT rules for small enterprises and inter alia deletes Article 
287 of Directive 2006/112/EC. 

OJ L 347, 11.12.2006, p. 1. 
Council  Implementing  Decision  (EU)  2018/279  of  20  February  2018  authorising  Malta  to  apply  a 
special measure derogating from Article 287 of Directive 2006/112/EC on the common system of value 
added tax (OJ L 54, 24.2.2018, p. 14). 
Council  Directive  (EU)  2020/285  of  18  February  2020  amending  Directive  2006/112/EC  on  the 
common system of value added tax as regards the special scheme for small enterprises and Regulation 
(EU)  No  904/2010  as  regards  the  administrative  cooperation  and  exchange  of  information  for  the 
purpose  of  monitoring  the  correct  application  of  the  special  scheme  for  small  enterprises  (OJ  L  62, 
2.3.2020, p. 13). 

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(4) 

(5) 

(6) 

In  accordance  with  Article  395(2),  second  subparagraph,  of  Directive  2006/112/EC, 
the Commission informed the other Member States by letter dated 12 June 2020 of the 
request made by Malta. The Commission notified Malta by letter dated 15 June 2020 
that it had all the information necessary to consider the request. 

Given that the derogating measure has resulted in reduced VAT obligations and thus a 
reduction in  the administrative burdens and costs for small enterprises, Malta should 
be authorised to continue applying the derogating measure. 

The authorisation to apply the derogating measure should be limited in time. The time 
limit  should  be  sufficient  to  allow  the  effectiveness  and  appropriateness  of  the 
threshold to be evaluated. Moreover, Article 287 of Directive 2006/112/EC is deleted 
by  Directive  (EU)  2020/285  with  effect  from  1  January  2025.  It  is  therefore 
appropriate  to  authorise  Malta  to  apply  the  derogating  measure  until  31  December 
2024. 

(7) 

The  derogation  has  no  impact  on  the  Union's  own  resources  accruing  from  value 
added tax because Malta will carry out a compensation calculation in accordance with 
Article 6 of Council Regulation (EEC, Euratom) No 1553/894. 

(8) 

Implementing Decision (EU) 2018/279 should therefore be amended accordingly,  

HAS ADOPTED THIS DECISION:  

Article 1 

In  Article  2  of  Implementing  Decision  (EU)  2018/279,  the  second  paragraph  is  replaced  by 
the following: 

‘It shall apply from 1 January 2018 until 31 December 2024.’ 

This Decision is addressed to Republic of Malta. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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Council  Regulation  (EEC,  Euratom)  No  1553/89  of  29  May  1989  on  the  definitive  uniform 
arrangements for the collection of own resources accruing from value added tax (OJ L 155, 7.6.1989, p. 
9). 

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