CELEX: 51987PC0322
Language: en
Date: 1987-08-21
Title: Proposal for a Council Directive completing and amending Directive 77/388/EEC - Removal of fiscal frontiers - (presented by the Commission)

ARCHIVES HISTORIQUES
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DOCUMENTS "COM"
COM (87) 322
Vol. 1987/0189
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                               COM(87 ) 322 final / 2
 REVISED VERSION
                                               Brussels , 21 August 1987
                        Proposal   for a   Council  Directive
               completing and amending Directive 77 / 388 / EEC
                        - Removal of     fiscal  frontiers     -
                            fi                ? c»|
                                      го
                          ( presented by the Commission )
 C0M(87 ) 322 final / 2
 ---pagebreak---                                                                              2
 EXPLANATORY MEMORANDUM
 In troduction
       The      Commission’s Uhite       Paperd ) of     14    June    1985 ,*
stresses          the    importance     of  the    removal      of    fiscal
frontiers         as    part   of  the   process   of    completing      the
 internal market .
       The      overall approach for attaining this objective is
explained            in    the    general    communication         to    the
Counc i 1 ( 2 ) . That     Communication    sets    out     the     reasons
underlying the proposals which the Commission is making
and     deploys the arguments in their support .                      It is
particularly            important therefore       that      the     present
document should be read in conjunction with the global
communication .           Doing away with fiscal frontiers means
that intra-Community sales and purchases of goods and
services will be treated in the same way as those
transacted within Member States .
       This situation , which was envisaged from the outset
and clearly foreshadowed in the Sixth Directive on the
common system of value added tax ( Directive 77 / 388 / EEC ),
necessarily involves the abolition of VAT exemption at
export and taxation at import within the Community , plus
the adaptation of certain territorial application rules
relating to supplies of services .               Consequently , several
provisions of the Sixth Directive have to be amended or
supplemented and certain Directives which were adopted to
offset the disadvantages caused by the existence of
fiscal frontiers have to be either amended or repealed .
       However ,        since the tax applied and collected in the
Member State where a sale takes place will be deductible
in the Member State of the purchaser ( if he is liable for
VAT ),   the Member State of destination would collect only
the     tax relating to the value added by purchasers
established          in that    Member State .  Since the intention is
to retain , within the Community ,              the principle that the
tax charged should be allocated to the country of final
consumption , a clearing system will have to be set up to
transfer          to the       purchaser 's Member       State the VAT
initially collected in the sellers 's Member State . The
clearing         mechanism is        dealt with       in     a     separate
communication to the Council(3 );              nevertheless ,       certain
amendments to the existing VAT system ,                  required as a
consequence           of the      introduction     of     the     clearing
mechanism , are included in this proposal .
         It should be recalled , in addition , that there are
several      draft Directives currently being examined by the
Council      which also have a role to play in establishing
( 1 ) Document C0M(85)310 final , point 184
(2)   Document C0M(87)320         final
( 3 ) Document C0M(87)323 final
 ---pagebreak---                                                                   3
 the fiscal framework for completing the internal market ,
notably     the draft     seventh , twelfth , eighteenth and
nineteenth     Directives .  In addition , a proposal will
shortly be made by the Commission dealing with passenger
transport .      Further proposals will also be required
before the Community VAT base is completed , as envisaged
in the Uhite Paper . The Commission is currently re ¬
examining the treatment of transactions in gold and
services     supplied by     artists and performers having
amended the 18th Directive accordingly .
Remarks on the proposed amendments
Article 1
Points !  an d 2
The    proposed amendments      result from the fact that
" importation " is a concept which no longer applies to
trade within the Community , but only to trade with third
countries .
Point 3
The proposed amendment results from the fact that the
term " exportation " no longer applies to trade within the
Community .
Point 4
Completion       of   the    internal     market    requires    a
reformulation of the rules of territorial application
with regard to transport in general .          Since passenger
transport will be the subject of a proposal for a
separate directive(l ) - applicable in principle from 1
January 1990 - it will be necessary to take account of
the    effect of      this proposal on the general rules
governing    transport . In  particular .   Article   9-2b   will
have   to be   further modified .  With a view to the removal
( 1 )
 ---pagebreak---                                                                   4
of fiscal frontiers , the principle that the tax should be
charged on the basis of the distance travelled in each
Member State must be replaced by a rule that is better
suited to the new situation .       Linking the fiscal charge
to the country of departure ,       in conformity with the
principle laid down in the 6th directive in respect of
passenger transport , is the solution that best meets this
requirement .      The   current    situation     as     regards
international      transport of goods to and from third
countries remains completely unaffected by this change ,
since export and import exemptions will still apply .
Po int . 5
The removal of fiscal frontiers makes it unnecessary to
continue to link the supply of services listed in Article
9   (2)    (e) of the  Sixth  Directive  to   the    customers 's
country ; under the proposed system , tax charged in the
supplier 's country will be deductible in the customer 's
country . Article 9 ( 2 ) Ce ) should therefore be limited to
trade with third countries .
Point 6
The proposed amendments result from the fact that the
term " importation " no longer applies to trade within the
Community , but only to trade with third countries .
Point 7
The proposed amendment results from the fact that the
term " exportation " no longer applies to trade within the
Community .
Point 8
Elimination of the concept of exportation within the
Community makes it necessary to introduce a special
exemption for supplies of gold to Central Banks within
the      Commmunity . These are currently covered by the
exemption in article 15 ( 11 ) of the Sixth Directive .
Point 9
The purpose of the proposed amendment is to abolish the
possibility      currently accorded to the Member States
whereby they can grant taxable persons a right to opt for
 the taxation of banking and financial transactions which
 ---pagebreak---                                                                 5
are normally exempt under Article 13 ( B ) ( d ) of the Sixth
Directive .    Such an option exists in three Member States
only ,   and the   conditions governing  its application vary
considerably from one to the other . This is an anomalous
situation in the context of completing the            internal
market and achieving freedom to provide services . The
Commission 's views on this subject are contained in its
first report to the Council on the application of the
common system of value added tax ( see page 27 of C0MC83 )
426 f inal ) .
Points 10 and 11
These    amendments result   from   the fact   that the    term
" importation " no longer applies to intra-Coromunity trade .
Points 12 and 13
Similarly ,    these amendments are consequent upon the fact
that " exportation " no longer applies to trade within the
Community .
Point 1 4
This amendment , dealing       with the exemption of services
consisting of work on imported movable property ,            is
similarly required because the terms " importation " and
" exportation " no longer apply to trade between Member
States .
Points 15 and 16
Once again , the fact that " exportation " no longer applies
to     intra-Comrounity trade     is relevant . The proposal
restricts the " export " exemption currently applicable to
supplies of goods for the provisioning of vessels used
for navigation on the high seas and for aircraft used on
international routes , to traffic with third countries .
This     is in     conformity with the new taxation rule
applicable to transport services within the Community
( see point 4 above ).
Points 17
The exemption of supplies of gold to central banks
provided for in art . 15 ( 11 ) of the sixth Directive in
the    context of   transactions similar to exportations , was
 ---pagebreak---                                                                6
designed to maintain the right of deduction of input tax
even when the supplies were " within the territory of the
country ".  Since such   supplies are  now exempted    on  the
basis of point 8 of this proposal , article 15 ( 11 ) has
become unnecessary . The right of deduction of input tax
is maintained by means of the modification proposed in
point 26 . As far as supplies of gold for exportation to
third countries are concerned , these remain exempted on
the basis of the general provisions of art . 15 ( 1 ) of the
6th Directive , as revised .
Points 18 , 1 9 and 20
These    amendments are consequent upon the fact that
" exportation " no longer applies to trade within the
Community .
Point 21
The second paragraph of Article 15 ( 14 ) of the Sixth
Directive , dealing with travel services suppplied in
other Member States ,    becomes superflous ,   given that the
scope of the first paragraph is restricted to services
relating    to transactions     carried out      outside   the
Community in conformity with the modification proposed
under point 20 .
Point 22
In    conformity with     the provisions      of its Act of
Accession , Portugal can treat transport services between
Portugal and the Azores and Madeira as international
transport . operations and thus grant them exemptions from
VAT .   However , . the  new territorial application rule
applicable to transport services ( see point 4 above ),
would cause air or sea transport operations between the
Azores and Madeira and Member States other than Portugal
to be taxed . To avoid - such a potential distortion of
competition is is proposed to amend Article 15 ( 15 ) of
the Sixth Directive , the current text of which was
adopted in the Portuguese Act of Accession to extend the
exemption arrangements in respect of those islands to all
Member   States . For the Member States other than Portugal ,
the own resources regime for transport will be the same
as that provided for in the second paragraph of Article
374 of the Act of Accession of Portugal .
 ---pagebreak---                                                                     7
Point 23
Once again , this amendment is necessary because of the
change in the concept of " exportation " resulting from the
completion of the internal market .
Poi. n t s 2 4 and 25
The proposed additions to Article 17 ( 2 ) of the Sixth
Directive deal with the right to deduction and are
interlinked . Since the addition in point 25 makes it
possible to deduct in each Member State the tax invoiced
in other Member States , it must be made clear in point 24
that this right to deduct , which is being given a
Community-wide dimension , can be granted only in the
country where the taxable person carries out taxable
transactions .
Poin t 26
The purpose of the proposed addition is to preserve the
right to deduct input tax with regard to supplies of gold
to Central Banks ., Such operations are also referred to in
points 8 and 18 .
Point 27
The      proposed amendment     deletes all   reference to a right
of     refund of     tax invoiced in one Member State to taxable
persons established in another Member State . The current
provision       in Article 17(4 )     is superfluous , since any
taxable       person will have the right to deduct in his own
Member       State the    tax invoiced   in other  Member  States .
( The Eighth Directive also becomes superfluous ).
Article       17(4 ) must   therefore be   restricted  to  taxable
persons in third          countries , with reference being made to
the       Thirteenth      Directive ,   which   deals   with   the
appropriate repayment procedures .
Point 28
This new provision is required so that , in each Member
State ,       tax invoiced in other Member States can be
deducted .
                              »
 ---pagebreak---                                                                       8
Point 29
This provision requires each taxable person to declare
the total amount of both input and output VAT relating to
transactions carried out uith taxable persons in other
Member     States .   This    is  an  important    element   in  the
establishment        of the      future clearing-house       system ,
enabling the net position of each trader in respect of
intra-Community VAT to be determined . Taxable persons
uith    a turnover     of less    than 35.000   ECUs are    excluded
from     the    obligation       to   provide    this     additional
information on their periodic declaration .
Art i cle. 2
The transitional provisions still in force in the Member
State must disappear by 31 December 1992 at the latest in
vieu of the completion of the internal market .
Article 3
This    article     lists   the   Directives  uhich    uill   become
superfluous , either totally or in part , once fiscal
frontiers have been removed ( exemptions on importation ,
duty-free allouances for " travellers ", refund of VAT to
taxable      persons      not    established    in    the    country
concerned ) .
Article A
As regards the clearing system proper . Article 4 refers
to the adoption of a Regulation . A Directive is not
considered an appropriate means of managing a financial
mechanism      uhich is        mainly concerned uith relations
betueen Member States .
Article 5
It should be pointed out that all Member States uill have
to comply simultaneously uith the provisions in this
draft Directive ; the uording used takes account of this
necessity .
 ---pagebreak---                                                                         9
        PROPOSAL FOR A COUNCIL DIRECTIVE SUPPLEMENTING
           THE COMMON SYSTEM OF VALUE ADDED TAX AND
                  AMENDING DIRECTIVE     77 / 388 / EEC
                -  REMOVAL OF FISCAL FRONTIERS          -
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having     regard to     the Treaty    establishing       the  European
Economic Community , and in particular Article 99 thereof ,
Having regard to the proposal from the Commission ,
Having     regard to     the opinion    of the European Parliament
 Mi .
Having     regard to     the  opinion    of    the    Economic and
Social Committee ( 2),
Whereas completing the internal market ,                which is one of
the fundamental objectives of the Community ,                  requires
that fiscal frontiers be abolished ,              that is to say that
the system of remission of tax on exportation and the
imposition of tax on importation and of frontier controls
on taxable persons as well as on private persons be
discontinued ;
Whereas     the abolition     of the    remission of       taxation  on
exports and of the charging of tax on imports must not ,
as     regards Community trade between taxable persons ,
interfere with the principle that the tax revenue arising
from the application of the tax at the final consumption
stage should be assigned to the Member State where that
final consumption occurs ;
Whereas      consequently Council Directive 77 / 3 88 / EEC ( 3 ) ,
last amended by the Act of Accession of Spain and
Portugal ,    should be amended , and the Directives dealing
with exemption at importation should be modified .
HAS ADOPTED THIS DIRECTIVE        :
( 1 )
( 2)
( 3 ) OJ No L 145 ,    13.6.1977 , p.1
 ---pagebreak---                                 Article 1
        Directive 77 / 388 / EEC is replaced by the following :
1   Article 2(2 ) is replaced by the following :
    " 2 . The importation of goods from third countries ".
2 . Article 7 is replaced by the following :
                              " Article 7
      Importation     of goods     shall mean    the entry   of goods
      from      third   countries    into   the   territory   of  the
      country as defined in Article 3 "
3 . Article 8(2 ) is replaced by the following :
        " 2 . By way of derogation from paragraph 1(a ), where
      the      place of      departure of       the consignment or
      transport of goods is in a third country , the place
      of the supply by the importer within the meaning of
      Article      21(2 )   and    the place of any subsequent
      supplies shall be deemed to be within the country of
      import of the goods ".
4 . Article 9(2)(b ) is replaced by the following :
   "( b ) the place where transport services           are   supplied
            shall be the place of departure .
          ’Place of departure’ shall mean the place where the
          transport operation actually commences as given on
          the    ticket or       waybill ,   without     taking   any
          intermediate      stops   into consideration .     However ,
          where several suppliers in turn take part in the
          same   transport operation ,     the place   of   departure
          shall mean each place where the service supplied by
          each such person begins . For the purposes of this
          provision ,   the place of departure for a feeder
          transport operation to a port ,         airport or ,   more
          generally ,     to the     point where main transport
          operation starts shall not be regarded as the place
          of departure for that main operation .
          In   the case    of an   outward and    inward    transport
          operation , even if this is carried out by the same
          supplier of services , the return journey shall be
          regarded as a separate service , whose place of
 ---pagebreak---            departure     shall be    determined in        accordance   with
           the previous subparagraph . However , with regard to
           outward and inward transport operations between one
           bank and the other of a waterway performed under a
           single contract , the place for the whole transport
           operation shall be that where the outward journey
           commences " .
 5 . The introductory phrase of Article 9(2 ) ( e ) is replaced
     by the following :
         " the    place where the following services are supplied
         when performed for customers established outside               the
         Community ,     or for taxable persons established in          the
         Community       by suppliers         established outside       the
         Community ,     shall be the place where the customer          has
         established        his    business         or     has   a    fixed
         establishment to which the service is supplied or ,
         in the absence of such a place , the place where he
        has his permanent address or usually resides :".
6.   Article 11      B is amended as follows :
     - Paragraph 1       is replaced by the following :
            "1 . The taxable    amount      shall    be    the  value   for
               customs purposes , determined in accordance with
               Council Regulation ( EEC ) N° 1224 / 80 (*).
               (*) OJ No L 134 ,  31.5.1980 , p.1 "
     - paragraph 2 is deleted .
7.     In Article 11 B(5 ), the words " outside the Community "
     are added after the words " have been temporarily
     exported " .
8 . The following subparagraph is added to Article 13 B :
     "( i ) supplies of gold to Central Banks .".
9 . Article 13 C(b ) is replaced by the following :
     "( b ) the transactions covered in B ( g ) and ( h )
             above . ” .
10 . In Article 14(1 ) ( c ) ,      ( d ), ( e ) and ( g ), the words " or
      which would ( so )       qualify ( therefore )... if they were
      imported from a third country " are deleted .
 ---pagebreak---  11 .   Article 1-4(1 ) ( f ) is deleted .
 12 . The title of Article 15 is replaced by the following :
      " Exemption     of exports        to third    countries ,  like
        transactions and international transport ".
13 . In Article 15(1 ) and ( 2 ), the words " outside the
        territory of the country as defined in Article 3” are
        replaced by the words " outside the Community ".
14 . Article 15(3 ) is replaced by the following :
      ”3 . the supply of services consisting of             work on
           movable property acquired or imported            for the
           purpose     of undergoing       such work     within the
           territory as defined in Article 3 , and dispatched
           or transported out of the Community by the person
           providing the services or by the customer if
           established in a third country or on behalf of
           either of them ;".
15 . In Article 15(4 ) ( a ),       the words " to third countries "
        are added after the words " carrying passengers for
       reward " .
16 . In Article 15(6 ),          the words " to third countries " are
       added      after the       words " for    reward chiefly on
        international routes ".
17 .   Article 15(11 )     is deleted .
1 8     In Article 15(12 ), the words " to third countries " are
       added after the words " which export them ".
19 . In Article 15(13 ), the words " to third countries " are
       added after the words " the export of goods ".
20 . In     Article 15(14 ), the words " outside the territory
       of the country as defined in Article 3 " are replaced
       by the words " outside the Community ".
21 . The second paragraph of Article 15(14)is deleted .
 ---pagebreak---                                                                               1 3
22 . Article 15(15 ) is replaced by the following :
     " 15 . air and sea transport operations to or from t ho
             islands which make up the autonomous regions of
             the Azores and Madeira , or carried out between
             the said   islands .".
23 . Article 16(2 ) is replaced by the following :
     " 2 . Subject     to the consultation provided for in
           Article    29 ,   Member States may opt to exempt
           imports    for and supplies of goods to a taxable
           person     intending to            export them        to     third
           countries as they are or after processing ,                     as
           well as supplies of services linked to that
           export business , up to a maximum equal                   to the
           value    of exports      to third       countries- during      the
           preceding twelve months ."
24 . In the introductory phrase of Article 17(2 ),                        the
     words " within the country " are added after the words
     " for the purposes of his taxable transactions ".
25 . In    Article 1 7(2 ) ( a ) ,  the words        " liable to    pay   tax
     within the Community " are added                  after the words " by
     another taxable person ".
26 . The     following subparagraph           ( d)is    added  to    Article
     17(3 )   :
     "( d ) transactions exempted under Article 13 B(i )."
27 . Article 17(4 ) is replaced by the following:
     "4 .   As regards taxable persons not established within
           the territory of the Community , entitlement to a
           refund    shall be      determined        in   accordance     with
           Council   Directive     86 / 560 / EEC (*) .
           (*) OJ No L 326, 21.11.1986, p. 40 "
 ---pagebreak--- 28 . The following subparagraph is added to Article ( 2 ):
      " Where deductible tax is expressed in the national
        currency of a Member State other than that in which
        it is to be deducted , or in the currency of a third
        country ,      the amount      to be     deducted shall be
        converted       into   the    currencies   of     the     taxable
        person’s country using the average exchange rate for
        the declaration period ".
29 . The following subparagraph is added to Article 22C4 ):
      " The   return must      also contain   on   the    one     hand   a
        declaration of the total amount of VAT relating to
        transactions carried out for taxable persons in
        other     Member States ,      and on the other hand a
        declaration      of the    total amount   of deductible        VAT
        relating to transactions carried out by taxable
        persons in other Member States . This provision shall
        not apply to taxable persons whose annual turnover
        does not exceed 35,000 ECUs ."
                                Article 2
            The provisions      brought into    force by      the Member
States      under Article      28 of   Directive   77 / 388 / EEC   shall
cease     to apply      on 31 December 1992 at the latest in each
of   the Member States concerned .
                                Article 3
1 .     The   following Directives       shall cease to apply on 31
December 1992      :
- Directive 79 / 1072 / EEC ;
- Directive 83 / 182 / EEC ;
- Directive 83 / 183 / EEC ;
- Directive 74 / 651 / EEC .
2.      The   following Directives       shall cease to apply on 31
December        1992 ,   in    respect   of intra-Community trade
relations     :
    Directive 69 / 169 / EEC ;
    Directive 83 / 181 / EEC .
 ---pagebreak---                          Article 4
       On a proposal from the Commission , the Council shall
adopt   the procedures which will make it possible to
establish a clearing-house system with regard to VAT on
intra-Community sales .
                         Article 5
1 .     Member States shall adopt the necessary provisions
to comply with this Directive by 31 December 1992 at the
latest . They shall notify the Commission immediately .
2.     The Member States shall send the Commission the text
of any provisions of national law which they adopt in the
field governed by this Directive .
                         Article 6
      This Directive is addressed to the Member States .
Done at Brussels ,                  For the Counci 1 ,
                                    President
 ---pagebreak---                                                       \Q
                                      FICHE D' IMPACT
                  Propositions de directives concernant La suppression
                        des frontières fiscales en matière de TVA
- Proposition de directive du Conseil instituant un processus de convergence
   des taux de la taxe sur la valeur ajoutée et les accises
- Proposition de directive du Conseil complétant le système commun de la taxe
   sur la valeur ajoutée et modifiant la directive 77 / 388 / CEE
   - Rapprochement des taux de TVA
- Proposition de directive du Conseil complétant et modifiant la directive
   77 / 388 / CEE
   - Suppression des frontières fiscales
- Communication de la Commission :
   Achèvement du marché intérieur - Mise en place d' un mécanisme de compensation
   de la TVA pour les ventes intracommunautaires
1 . CONTRAINTES ADMINISTRATIVES DECOULANT DE L' APPLICATION DE LA LEGISLATION
    POUR LES ENTREPRISES :
    Directives : Néant
    Clearing      : Fournir quelques éléments supplémentaires sur la déclaration
                    TVA périodique
2 . ALLEGEMENTS POUR LES ENTREPRISES :
    - La plupart des Etats membres , à l' exception du Danemark , utilisant un
       système de TVA à deux ou plusieurs taux , la proposition entraînera une
       simplification de la gestion administrative de la TVA . Tous les Etats
       membres utiliseront en effet un système de TVA à deux taux , ce qui
        simplifiera la ventilation entre les taux , la structure des taux sera
       donc identique .
    - De plus , un même produit sera taxé au même type de taux dans tous les
        Etats membres , la classification des produits par taux sera simplifiée .
    - Les formalités d' exportation et d' importation seront supprimées puisque
        le système actuel de la détaxation ( taux zéro ) à l' exportation et de la
       taxation à l' importation sera aboli . Toutes les opérations intra-commu -
       nautaires seront traitées de la même façon que les opérations en régime
        intérieur à l' heure actuelle .
    - Les petites entreprises ayant un chiffre d' affaires annuel inférieur à
        35.000 ECUs sont libérées des obligations découlant du clar.ring et bénéfi ¬
        cieront donc d' un traitement plus favorable dans ce domaine . Le chiffre
        de 35.000 ECUs correspond à la limite pour la franchise facultative
        prévue dans la proposition de directive en matière d' harmonisation du
        régime particulier TVA applicable aux PME ( Doc . C0M(86)444 final ).
3 . INCONVENIENTS      POUR LES ENTREPRISES ( coûts supplémentaires ) :
    Non
 ---pagebreak---                                           w
4 . tl fl TS SUR L' IMI'I 01 :
    Ces directives n' ont pas d' effets directs sur l' emploi . Toutefois , vu
    les allègements procurés aux entreprises ( cf. point 2 ) on peut raison
    nablement espérer un effet positif sur l' emploi .
    De plus , la création du marché intérieur contribuera à la relance de
    l' économie européenne entière et par conséquent entraînera vraisembla
    blement des effets positifs sur l' emploi .
5 . Y A - T - IL EU CONCERTATION PREALABLE AVEC LES PARTENAIRES SOCIAUX ?
    Non
6 . Y A - T - IL UNE APPROCHE ALTERNATIVE MOINS CONTRAIGNANTE ?
    Non
                               V