Directive 2020/285 - Amendment of the VAT Directive 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 - Main contents

EN

Official Journal of the European Union

L 62/13

Council Directive 2006/112/EC (3) allows Member States to continue to apply their special schemes to small enterprises in accordance with common provisions and with a view to closer harmonisation. However, those provisions are outdated and do not reduce the compliance burden of small enterprises, as they were designed for a common system of value added tax (VAT) based on taxation in the Member State of origin.

In its action plan on VAT, the Commission announced a comprehensive simplification package for small enterprises which aims to reduce their administrative burden and helps create a fiscal environment to facilitate their growth and the development of cross‐border trade. The simplification package entails a review of the special scheme for small enterprises as outlined in the Communication on the follow‐up to the action plan on VAT. The review of the special scheme for small enterprises therefore constitutes an important element of the reform package set out in the action plan on VAT.

In order to address the issue of the disproportionate compliance burden faced by exempt small enterprises, certain simplification measures should also be available to them.

The special scheme for small enterprises currently only allows for an exemption to be granted to enterprises established in the Member State in which the VAT is due. This has a negative impact on competition in the internal market for enterprises not established in that Member State. To address this and to avoid further distortions, small enterprises established in Member States other than that in which the VAT is due should also be allowed to benefit from the exemption.

Where a taxable person is subject to the regular VAT regime in its Member State of establishment, but avails itself of the VAT exemption for small enterprises in another Member State, the input tax deduction should reflect a connection to taxed supplies of the taxable person. Therefore, where such taxable persons procure inputs in their Member State of establishment which are connected to exempt supplies in other Member States, no input VAT deduction should be possible.

Small enterprises may only benefit from the exemption where their annual turnover is below the threshold applied by the Member State in which the VAT is due. In setting their threshold, Member States should abide by the rules on thresholds laid down by Directive 2006/112/EC. Those rules, most of which were put in place in 1977, are no longer suitable.

For the purposes of simplification, a number of Member States have been authorised to apply a threshold higher than that authorised under Directive 2006/112/EC on a temporary basis. As it is not appropriate to continue modifying general rules using measures granted by way of derogation, the rules on thresholds should be updated.

Member States should be able to set their national threshold for the exemption at the level that best suits their economic and political conditions, subject to the upper threshold provided for under this Directive. In this regard, it should be clarified that where Member States apply varying thresholds for different business sectors, this would need to be based on objective criteria. Where a taxable person is eligible to benefit from more than one sectoral threshold, Member States should ensure that the taxable person can only use one of those thresholds. They should also ensure that their thresholds do not differentiate between established and non‐established taxable persons.

The annual turnover threshold, which is the basis for the exemption put in place by the special scheme laid down in this Directive, consists only of the combined value of the supplies of goods and services made by a small enterprise in the Member State where the exemption is granted. Distortions of competition could arise where an enterprise, not established in that Member State, could benefit from such an exemption regardless of the turnover it generates in other Member States. In order to mitigate such distortions of competition and as a tax revenue safeguard, only those enterprises whose Union annual turnover is below a certain threshold should be eligible for exemption in a Member State where they are not established. Enterprises whose turnover in the Member State in which they are established is below the national threshold should be able to continue to make exempt supplies in that Member State irrespective of the turnover they generate in other Member States, even if their overall turnover exceeds the Union threshold.

In order to allow an effective control of the application of the exemption and to ensure that Member States have access to the necessary information, taxable persons who want to avail themselves of the exemption in a Member State in which they are not established should be required to give prior notification to the Member State in which they are established. For the reasons of simplification and reduction of compliance costs, such taxable persons should be identified by an individual number in the Member State of establishment only. It is possible, but not necessary, for that number to be the individual VAT identification number.

In order to ensure the proper functioning and monitoring of the exemption as well as the timely transmission of information, the reporting obligations of taxable persons who avail themselves of the exemption in a Member State in which they are not established, should be clearly set out. This should enable compliant taxable persons to be released from such obligations and from the registration obligation in Member States other than the Member State of establishment. However, Member States should be able to require that, where such non‐established taxable persons do not comply with the reporting obligations set out specifically for them, they must meet the general VAT registration and reporting obligations as set out in national VAT laws.

In order to avoid inconsistencies in the calculation of the Member State annual turnover serving as a reference for the application of the exemption, and of the Union annual turnover, the elements of the turnover to be taken into account should be specified.

In order to prevent circumvention of the rules regarding the exemption for small enterprises and to preserve the purpose of that exemption, a taxable person, whether or not established in the Member State granting the exemption, should not be able to benefit from the exemption where the national threshold laid down therein was exceeded in the preceding calendar year. For the same reasons, a taxable person not established in the Member State granting the exemption should not be able to benefit from the exemption where the Union annual turnover threshold was exceeded in the preceding calendar year.

In order to ensure a gradual transition of small enterprises from the exemption to taxation, taxable persons should be allowed to continue to benefit from the exemption for small enterprises for a limited period of time where their turnover does not exceed the national exemption threshold by more than a set percentage of that threshold. As the level of thresholds applied can differ from Member State to Member State, Member States should be able to choose to apply one of the two proposed percentages as long as the application of the percentage does not result in exempt taxable person’s turnover exceeding a certain fixed amount. Where, during a calendar year, the Union annual turnover threshold is exceeded, it is necessary, in view of the threshold’s function as a revenue safeguard, for the exemption to cease to apply as of that time.

Where an exemption applies, small enterprises availing themselves of the exemption in the Member State of establishment should, at a minimum, have access to a VAT registration procedure within a given time frame. It should be possible for Member States to extend that time frame in specific cases where in‐depth checks are required to prevent tax evasion or avoidance.

Small enterprises availing themselves of the exemption in the Member State of establishment should, at a minimum, have access to simplified reporting obligations.

In addition to granting an exemption from VAT, the special schemes also allow for graduated tax relief. Graduated tax relief is a source of complexity and contributes little to reducing the compliance burden of small enterprises. This measure should therefore be removed.

Member States should be able to give taxable persons the right to choose between the general VAT regime and the special scheme for small enterprises. If the taxable person exercises that right, it is appropriate to leave it for Member States to lay down the detailed rules and conditions for exercising that choice.

This Directive should not entail new registration or reporting obligations for small enterprises that avail themselves of the exemption only in the Member State of establishment.

Since the objective of this Directive, namely to reduce the compliance burden of small enterprises, cannot be sufficiently achieved by the Member States, but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (4), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

In order to ensure that the simplification measures set out in Directive 2006/112/EC as regards the special scheme for small enterprises can be monitored properly, it is necessary to amend Council Regulation (EU) No 904/2010 (5) so that the relevant competent authorities of the Member States have automated access to the data collected from taxable persons benefiting from the VAT exemption for small enterprises.

In order to provide small enterprises an easy access to the provisions concerning the special scheme for small enterprises in each Member State, those provisions should be published on the website of the Commission.

The Committee of the Regions delivered an opinion on 10 October 2018 (6).

Directive 2006/112/EC and Regulation (EU) No 904/2010 should therefore be amended accordingly,

in point (b) of Article 2(1), point (i) is replaced by the following:

Article 139 is amended as follows:

Article 167a is amended as follows:

in Article 169, point (a) is replaced by the following:

in Article 220a(1), the following point is added:

in Article 270, point (a) is replaced by the following:

in Article 272(1), point (d) is deleted;

in Title XII, Chapter 1, the following Section is inserted:

‘Section ‐1

Definitions

Article 280a

For the purposes of this Chapter, the following definitions apply:

in Title XII, Chapter 1, the heading of Section 2 is replaced by the following:

‘Exemptions’;

Article 282 is replaced by the following:

‘Article 282

The exemptions provided for in this Section shall apply to the supply of goods and services by small enterprises.’;

in Article 283(1), point (c) is deleted;

Article 284 is replaced by the following:

‘Article 284

• 1. 

  Member States may exempt the supply of goods and services made within their territory by taxable persons who are established in that territory and whose Member State annual turnover, attributable to such supplies, does not exceed the threshold fixed by those Member States for the application of this exemption. That threshold shall be no higher than EUR 85 000 or the equivalent in national currency.

Member States may fix varying thresholds for different business sectors based on objective criteria. However, none of those thresholds shall exceed the threshold of EUR 85 000 or the equivalent in national currency.

Member States shall ensure that a taxable person eligible to benefit from more than one sectoral threshold can only use one of those thresholds.

Thresholds set by a Member State shall not differentiate between taxable persons who are established and those who are not established in that Member State.

• 2. 

  Member States that have put in place the exemption under paragraph 1 shall also grant that exemption to the supplies of goods and services in their own territory made by taxable persons established in another Member State, provided that the following conditions are fulfilled:

• 3. 

  Notwithstanding Article 292b, in order for a taxable person to avail itself of the exemption in a Member State in which that taxable person is not established, the taxable person shall:

Member States may use the individual VAT identification number already allocated to the taxable person in respect of that person’s obligations under the internal system or apply the structure of a VAT number or any other number for the purpose of the identification referred to in point (b) of the first subparagraph.

The individual identification number referred to in point (b) of the first subparagraph shall have the suffix “EX”, or the suffix “EX” shall be added to that number.

• 4. 

  The taxable person shall inform the Member State of establishment in advance, by means of an update to a prior notification, of any changes to the information previously provided in accordance with the first subparagraph of paragraph 3, including the intention to avail itself of the exemption in a Member State or Member States other than the ones indicated in the prior notification and the decision to cease applying the exemption scheme in a Member State or Member States in which that taxable person is not established.

The cessation shall be effective as of the first day of the next calendar quarter following the receipt of the information from the taxable person or, where such information is received during the last month of a calendar quarter, as of the first day of the second month of the next calendar quarter.

• 5. 

  The exemption shall apply as regards the Member State in which the taxable person is not established and where that taxable person intends to avail itself of the exemption according to:

The date referred to in the first subparagraph shall be no later than 35 working days following the receipt of the prior notification or the update to the prior notification referred to in the first subparagraph of paragraph 3 and in the first subparagraph of paragraph 4, except in specific cases where in order to prevent tax evasion or avoidance Member States may require additional time to carry out the necessary checks.

• 6. 

  The corresponding value in national currency of the amount referred to in this Article shall be calculated by applying the exchange rate published by the European Central Bank on 18 January 2018.’;

the following Articles are inserted:

‘Article 284a

• 1. 

  The prior notification referred to in point (a) of the first subparagraph of Article 284(3) shall contain at least the following information:

The information referred to in point (c) of the first subparagraph of this paragraph has to be given for each previous calendar year belonging to the period referred to in the first subparagraph of Article 288a(1) as regards any Member State which applies the option stipulated therein.

• 2. 

  Where the taxable person informs the Member State of establishment in accordance with Article 284(4) that it intends to avail itself of the exemption in a Member State or Member States other than the ones indicated in the prior notification, that person is not obliged to give the information referred to in paragraph 1 of this Article in so far as that information has already been included in reports previously submitted under Article 284b.

The update to a prior notification referred to in the first subparagraph shall include the individual identification number referred to in point (b) of Article 284(3).

Article 284b

• 1. 

  A taxable person availing itself of the exemption provided for in Article 284(1) in a Member State in which that person is not established in accordance with the procedure under Article 284(3) and (4) shall report for each calendar quarter to the Member State of establishment the following information, including the individual identification number referred to in point (b) of Article 284(3):

• 2. 

  The taxable person shall communicate the information set out in paragraph 1 within one month from the end of the calendar quarter.

• 3. 

  When the Union annual turnover threshold referred to in point (a) of Article 284(2) is exceeded, the taxable person shall inform the Member State of establishment within 15 working days. At the same time, the taxable person shall be required to report the value of the supplies referred to in paragraph 1 that have been made from the beginning of the current calendar quarter up until the date the Union annual turnover threshold was exceeded.

Article 284c

• 1. 

  For the purposes of points (c) and (d) of Article 284a(1) and Article 284b(1) the following shall apply:

For the purposes of point (b) of the first subparagraph, Member States which have not adopted the euro may require the values to be expressed in their national currencies. If the supplies have been made in other currencies, the taxable person shall use the exchange rate applying on the first day of the calendar year. The conversion shall be made by applying the exchange rate published by the European Central Bank for that day, or, if there is no publication on that day, on the next day of publication.

• 2. 

  The Member State of establishment may require the information referred to in Article 284(3) and (4) and in Article 284b(1) and (3) to be submitted by electronic means, in accordance with conditions laid down by that Member State.

Article 284d

• 1. 

  A taxable person availing itself of the exemption in a Member State in which that taxable person is not established shall not be required in respect of the supplies covered by the exemption in that Member State:

• 2. 

  A taxable person availing itself of the exemption in the Member State of establishment and in any Member State in which that taxable person is not established shall not be required, in respect of the supplies covered by the exemption in the Member State of establishment, to submit a VAT return pursuant to Article 250.

• 3. 

  By derogation from paragraphs 1 and 2 of this Article, where a taxable person fails to comply with the rules provided for in Article 284b, Member States may require such a taxable person to fulfil VAT obligations such as those referred to in paragraph 1 of this Article.

Article 284e

The Member State of establishment shall, without delay, either deactivate the identification number referred to in point (b) of Article 284(3) or, if the taxable person continues to avail itself of the exemption in another Member State or other Member States, adapt the information received pursuant to Article 284(3) and (4) as regards the Member State or Member States concerned, in the following cases:

Articles 285, 286 and 287 are deleted;

Article 288 is replaced by the following:

‘Article 288

• 1. 

  The annual turnover serving as a reference for applying the exemption provided for in Article 284 shall consist of the following amounts, exclusive of VAT:

• 2. 

  Disposals of the tangible or intangible capital assets of a taxable person shall not be taken into account for the purposes of calculating the turnover referred to in paragraph 1.’;

the following Article is inserted:

‘Article 288a

• 1. 

  A taxable person, whether or not established in the Member State granting the exemption provided for in Article 284(1), shall not be able to benefit from that exemption during a period of one calendar year where the threshold laid down in accordance with that paragraph was exceeded in the preceding calendar year. The Member State granting the exemption may extend this period to two calendar years.

Where, during a calendar year, the threshold referred to in Article 284(1) is exceeded by:

Notwithstanding points (a) and (b) of the second subparagraph, Member States may set a ceiling of 25 % or allow the taxable person to continue to benefit from the exemption provided for in Article 284(1) without any ceiling during the calendar year when the threshold is exceeded. However, the application of this ceiling or option may not result in exempting a taxable person whose turnover within the Member State granting the exemption exceeds EUR 100 000.

By derogation from the second and third subparagraphs, Member States may determine that the exemption provided for in Article 284(1) shall cease to apply as of the time when the threshold laid down in accordance with that paragraph is exceeded.

• 2. 

  A taxable person not established in the Member State granting the exemption provided for in Article 284(1) shall not be able to benefit from that exemption, where the Union annual turnover threshold referred to in point (a) of Article 284(2) was exceeded in the preceding calendar year.

Where, during a calendar year, the Union annual turnover threshold referred to in point (a) of Article 284(2) is exceeded, the exemption provided for in Article 284(1) granted to a taxable person not established in the Member State granting that exemption shall cease to apply as of that time.

• 3. 

  The corresponding value in national currency of the amount referred to in paragraph 1 shall be calculated by applying the exchange rate published by the European Central Bank on 18 January 2018.’;

in Article 290, the second sentence is replaced by the following:

‘Member States may lay down the detailed rules and conditions for applying that option.’;

Articles 291 and 292 are deleted;

in Title XII, Chapter 1, the following Section is inserted:

‘Section 2a

Simplification of obligations for exempt small enterprises

Article 292a

For the purposes of this Section, “exempt small enterprise” means any taxable person benefitting from the exemption in the Member State in which the VAT is due as provided for in Article 284(1) and (2).

Article 292b

Without prejudice to Article 284(3), Member States may release exempt small enterprises established in their territory, that avail themselves of the exemption only within that territory, from the obligation to state the beginning of their activity pursuant to Article 213 and to be identified by means of an individual number pursuant to Article 214, except where those enterprises carry out transactions covered by point (b), (d) or (e) of Article 214.

Where the option referred to in the first paragraph is not exercised, Member States shall put in place a procedure for the identification of such exempt small enterprises by means of an individual number. The identification procedure shall not take longer than 15 working days except in specific cases where in order to prevent tax evasion or avoidance Member States may require additional time to carry out the necessary checks.

Article 292c

Member States may release exempt small enterprises established in their territory that avail themselves of the exemption only within that territory from the obligation to submit a VAT return laid down in Article 250.

Where the option referred to in the first paragraph is not exercised, Member States shall allow such exempt small enterprises to submit a simplified VAT return to cover the period of a calendar year. However, exempt small enterprises may opt for the application of the tax period set in accordance with Article 252.

Article 292d

Member States may release exempt small enterprises from certain or all obligations referred to in Articles 217 to 271.’;

in Title XII Chapter 1, Section 3 is deleted;

in Article 314, point (c) is replaced by the following:

in Article 334, point (c) is replaced by the following:

Article 17 is amended as follows:

in Article 21, the following paragraph is inserted:

‘2b.   With respect to the information referred to in point (g) of Article 17(1), at least the following details shall be accessible:

The values referred to in points (e) to (g) of the first subparagraph shall be specified separately for each threshold that may be applicable pursuant to the second subparagraph of Article 284(1) of Directive 2006/112/EC.’;

in Article 31, the following paragraph is inserted:

‘2a.   Each Member State shall provide confirmation by electronic means that the taxable person to whom the individual identification number referred to in Article 284(3) of Directive 2006/112/EC has been issued is an exempt small enterprise. The confirmation shall specify the Member State or Member States in which the taxable person avails itself of the exemption.’;

in Article 32, paragraph 1 is replaced by the following:

‘1.   The Commission shall, on the basis of the information provided by the Member States, publish on its website the details of the provisions approved by each Member State which transpose Article 167a, Chapter 3 of Title XI and Chapter 1 of Title XII of Directive 2006/112/EC.’;

the following Chapter is inserted:

‘CHAPTER Xa

PROVISIONS CONCERNING THE SPECIAL SCHEME IN CHAPTER 1 OF TITLE XII OF DIRECTIVE 2006/112/EC

Article 37a

• 1. 

  The Member State of establishment shall transmit the following information by electronic means to the competent authorities of the Member States granting the exemption within 15 working days from the date on which the information becomes available:

• 2. 

  The Commission shall adopt by means of implementing acts the technical details, including a common electronic message, by which the information referred to in paragraph 1 of this Article is to be submitted. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).

Article 37b

• 1. 

  The Member State to which a taxable person has given a prior notification or a subsequent update in accordance with Article 284(3) or (4) of Directive 2006/112/EC shall, before identifying the taxable person or confirming the individual identification number to the taxable person, calculate on the basis of the total values of supplies reported by the taxable person, that the Union annual turnover threshold referred to in point (a) of Article 284(2) of that Directive was not exceeded during the current or the previous calendar year.

• 2. 

  The Member State granting the exemption shall, within 15 working days after receiving the information referred to in point (a) of Article 37a(1) of this Regulation, confirm by electronic means to the competent authorities of the Member State of establishment, based on the total values of supplies reported by the taxable person, that the annual turnover threshold referred to in point (b) of Article 284(2) of Directive 2006/112/EC was not exceeded during the current calendar year and that the conditions referred to in Article 288a(1) of that Directive are fulfilled.

• 3. 

  The Member State granting the exemption shall, without delay, notify by electronic means the competent authorities of the Member State of establishment of the date on which the taxable person has ceased to be eligible for the exemption under Article 288a(1) of Directive 2006/112/EC.

• 4. 

  The Commission shall adopt by means of implementing acts the technical details, including a common electronic message, of the notifications referred to in paragraphs 2 and 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).’.