Proposal for a COUNCIL IMPLEMENTING DECISION 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: 2021-03-29
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, 29.3.2021  COM(2021) 147 final 2021/0073 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION 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  20  October  2020,  Malta  requested  an 
authorisation to increase the threshold of an existing measure derogating from Article 287 of 
the VAT Directive, in order to exempt from VAT taxable persons whose annual turnover is 
no  higher  than  EUR  30  000,  until  31  December  2024.  The  Commission  requested  further 
information  related  to  the  request  which  was  provided  by  letter  registered  with  the 
Commission on 9 November 2020. 

In accordance with Article 395(2) of the VAT Directive, the Commission informed the other 
Member  States  by  letter  dated  17  December  2020  of  the  request  made  by  Malta.  The 
Commission notified Malta by letter dated 18 December 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  the  VAT  Directive,  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 

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OJ L 347, 11.12.2006, p.1. 

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Union’s  objectives  for  small  businesses,  as  laid  out  in  the  Commission  Communication 
“Think small first” - a “Small Business Act” for Europe”2. 

For this purpose, with Implementing Decision (EU) 2018/279 of 20 February 2018 Malta was 
authorised  to  increase  the  threshold  for  the  category  with  the  lowest  turnover,  that  is 
EUR 14 600,  to  EUR 20 000.  By  Council  Implementing  Decision  (EU)  2020/1662  of  3 
November  20203  Malta  was  authorised  to  prolong  the  application  of  this  measure  until  31 
December 2024.  
The adoption and subsequent transposition of this special measure4 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. 

By raising the threshold to EUR 30 000 for taxable persons whose economic activity consists 
principally  in  the  supply  of  services  with  a  low  value  added  (high  inputs)  or  supplies  of 
services  with  a  high  value  added  (low  inputs),  it  is  considered  that  the measure  will  reduce 
significantly the administrative burden on businesses eligible for the scheme, and in particular 
on  micro-enterprises,  by  releasing  them  from  the  VAT  obligations  under  the  normal  VAT 
arrangements, such as keeping VAT records or submitting VAT returns.  

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) 2020/2855 
amending Articles 281 to 294 of the VAT Directive on a special scheme for small enterprises, 
which resulted from the VAT action plan6, and aims to create a modern, simplified scheme for 
those  businesses.  In  particular,  it  seeks  to  reduce  VAT  compliance  costs  and  distortions  of 

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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. 
Council  Implementing  Decision  (EU)  2020/1662  of  3  November  2020  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 OJ L 374, 10.11.2020, p. 6–7. 
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. 

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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 30 000 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  Netherlands7  has  been  granted  a  threshold  of  EUR  25 
000;  Italy8  a  threshold  of  EUR  30  000;  Luxembourg9  a  threshold  of  EUR 35  000;  Latvia10, 
Poland11 and Estonia12 have been granted a threshold of EUR 40 000; Croatia13 a threshold of 
EUR 45 000 and Lithuania14 a threshold of EUR 55 000; Hungary15 a threshold of EUR 48 
000; Slovenia16 a threshold of EUR 50 000; and Romania17 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  application  from  1 January 

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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). 
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) 2021/358 of 22 February 2021 amending Implementing Decision 
(EU) 2017/563 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 tax (OJ L 69, 26.2.2021, p. 4). 
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)  2021/86  of  22  January  2021  authorising  the  Republic  of 
Lithuania  to  apply  a  special  measure  derogating  from  Article  287  of  Directive  2006/112/EC  on  the 
common system of value added tax (OJ L 30, 28.1.2021, p. 2–3).  
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). 
Council  Implementing  Decision  (EU)  2020/1260  of  4  September  2020  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, OJ L 296, 10.9.2020, p. 1–3.  

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2025  of  Directive  (EU)  2020/285  on  simpler  VAT  rules  for  small  and  medium-sized 
enterprises.  

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 
Programme18  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  Programme19,  which  referred  specifically  to  VAT,  pointing  out  that  the 
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  strategy20,  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’21,  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  Communication22,  and  the  2008  Communication  ‘”Thinks  small 
first”  –  a  “Small  Business  Act”  for  Europe’23  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. 

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LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 395 of the VAT Directive. 

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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  – 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). 
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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• 

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 instrument proposed is a Council Implementing Decision. 

Under Article 395 of the VAT Directive, a derogation from the common VAT rules is only 
possible upon authorisation by the Council, which is acting unanimously on a proposal from 
the  Commission.  A  Council  Implementing  Decision  is  the  most  suitable  instrument  since  it 
can be addressed to an individual Member State. 

3. 

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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 aims at increasing the current exemption 
threshold from EUR 20 000 to EUR 30 000. This increase in the threshold is a simplification 
measure which removes many of the VAT obligations for businesses operating with an annual 
turnover no higher than EUR 30 000. It will therefore have a potential positive impact on the 
reduction of administrative burden for a number of taxable persons and, subsequently, on the 
tax administration. 

According to data for the year 2019 the number of potential taxpayers that will be affected by 
this increase is 1 764, for high value added services (low inputs) and 237, for low value added 
services (high inputs). 

The Maltese authorities reported that the number of traders currently using the SME scheme 
and  the  exemption  is  34  585  and  by  raising  the  threshold  the  number  could  potentially 
increase to 36 586 taxpayers. 

The percentage of the potential users of the SME scheme applying the threshold of EUR 30 
000, as compared to the total number of taxpayers in Malta, would be 34%. 

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Based  on  simplified  declaration  of  turnover  under  the  SME  scheme  in  2019,  the  total 
estimated  VAT,  calculated  at  the  standard  rate,  and  considered  as  not  collected  (as  it  was 
below the EUR 20 000 threshold), amounts to approximately EUR 11.4 million which is the 
1.2% of the total amount revenue collected from VAT in Malta in 2019 ( EUR 944.7 million) 
as reported in the official data available. 

By raising the threshold to EUR 30 000 for both supplies of services with a low value added 
(high inputs) or supplies of services with  a high  value added (low inputs), the not  collected 
VAT  will  potentially  increase  by  about  EUR  3.3  million  which  could  be  estimated  as  an 
increase of 0,35%.  

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  is  not  significant  on  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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2021/0073 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

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 tax 1, and in particular Article 395(1), first subparagraph, thereof,  

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

1 
2 

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; those whose annual turnover is no higher than EUR 24 300 if the 
economic activity consists principally in the supply of services with a low value added 
(high inputs);  and those whose annual turnover is no higher than 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  is  authorised  to  apply  a 
special  measure  derogating  from  Article  287  of  Directive  2006/112/EC  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 2024.  

By  letter  registered  with  the  Commission  on  20  October  2020,  Malta  requested  an 
authorisation  to  apply  a  measure  derogating  from  Article  287  of  Directive 
2006/112/EC, allowing Malta to exempt from VAT taxable persons whose economic 
activity  consists  principally  in  the  supply  of  services  with  a  low  value  added  (high 
inputs), or supply of services with a high value added (low inputs) and whose annual 
turnover  is  no  higher  than  EUR  30  000,  until  31  December  2024  (‘the  derogating 
measure’).  The  Commission  requested  further  information  related  to  the  request, 
which was provided by letter registered with the Commission on 9 November 2020. 

In  accordance  with  Article  395(2),  second  subparagraph,  of  Directive  2006/112/EC, 
the Commission transmitted Malta’s request to the other Member States by letter dated 
17 December 2020. By letter dated 18 December 2020, the Commission notified Malta 
that it had all the information necessary for appraisal of the request. 

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). 

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(5) 

(6) 

(7) 

Given that the increased threshold is expected to reduce VAT obligations and thus the 
administrative  burden  and  compliance  costs  for  small  enterprises,  and  simplify  VAT 
collection  for  the  tax  authorities,  and  the  impact  on  the  total  VAT  revenue  of  Malta 
collected at the stage of final consumption is negligible, Malta should be authorised to 
apply the derogating measure. 

The  derogating  measure  has  no  impact  on  the  Union's  own  resources  accruing  from 
VAT  because  Malta  will  carry  out  a  compensation  calculation  in  accordance  with 
Article 6 of Council Regulation (EEC, Euratom) No 1553/893. 

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 Council Directive (EU) 2020/2854, which lays down simpler VAT rules for small 
enterprises,  with  effect  from  1  January  2025.  It  is  therefore  appropriate  to  authorise 
Malta to apply the derogating measure until 31 December 2024. 

(8) 

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

HAS ADOPTED THIS DECISION:  

Article 1 

By  way  of  derogation  from  point  (13)  of  Article  287  of  Directive  2006/112/EC,  Malta  is 
authorised to exempt from VAT taxable persons whose economic activity consists principally 
in the supply of services with a low value added (high inputs), or the supply of services with a 
high value added (low inputs), and whose annual turnover is no higher than EUR 30 000. 

Implementing Decision (EU) 2018/279 is repealed.  

Article 2 

This Decision shall apply  until 31 December 2024. 

Article 3 

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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). 
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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This Decision is addressed to the Republic of Malta. 

Done at Brussels, 

Article 4 

For the Council 
The President 

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