Excerpt from the Directive on the common system of VAT in connection with chain- and triangular transactions:
Introduction:
The essential rules of law of the secondary European Union law are:
- Regulations – these are general-abstract, binding in their entirety and apply directly in each Member State. Additionally, they are directly applicable, can therefore directly - without national implementation - establish rights and obligations for citizens.
- Directives – these are directed exclusively at the Member States and require national implementation. With respect to their targets, they are binding, however allow Member States the choice of type and means of national implementation. Member states are obliged to implement the guidelines nationally within a set period.
Accordingly, the individual (tax payer) cannot refer to the provisions of the Directive of the VAT system. Only when the Member State has not implemented the directive within the period stipulated, or not at all, the individual may derive rights against the defaulting Member State, insofar as the directive is sufficiently defined and absolute and contains more favourable law for the individual citizen.
Furthermore, it is of significance that national regulations on turnover tax are to be interpreted in such a way to correspond to the sense and purpose of the community law and in particular the Directive of the VAT system.
According to the jurisdiction of the European Court of Justice (CJEU), not only the courts, but also administrative bodies are obliged to apply the provisions of the directive.
The Directive of the VAT system has been applicable since 1 January 2007 (with it, the 6th VAT Directive was simultaneously repealed). Following, you will find an excerpt from the consolidated Council Directive:
COUNCIL DIRECTIVE 2006/112 / EC of 28 November 2006 on the common system of value added tax in the consolidated version of 1 January 2024:
TITLE V - PLACE OF TAXABLE TRANSACTIONS
- CHAPTER 1 - Place of supply of goods
- Section 2 - Supply of goods with transport
- Article 36a (concerns ascription rules for chain transactions)
1. Where the same goods are supplied successively and those goods are dispatched or transported from one Member State to another Member State directly from the first supplier to the last customer in the chain, the dispatch or transport shall be ascribed only to the supply made to the intermediary operator.
2.
By way of derogation from paragraph 1, the dispatch or transport shall be ascribed only to the supply of goods by the intermediary operator where the intermediary operator has communicated to his supplier the VAT identification number issued to him by the Member State from which the goods are dispatched or transported.
3.
For the purposes of this Article, ‘intermediary operator’ means a supplier within the chain other than the first supplier in the chain who dispatches or transports the goods either himself or through a third party acting on his behalf.
4.
This Article shall not apply to the situations covered by Article 14a.
- CHAPTER 2 Place of an intra-Community acquisition of goods
- Article 40
The place of an intra-Community acquisition of goods shall be deemed to be the place where dispatch or transport of the goods to the person acquiring them ends.
- Article 41
Without prejudice to Article 40, the place of an intra-Community acquisition of goods as referred to in Article 2(1)(b)(i) shall be deemed to be within the territory of the Member State which issued the VAT identification number under which the person acquiring the goods made the acquisition, unless the person acquiring the goods establishes that VAT has been applied to that acquisition in accordance with Article 40.
If VAT is applied to the acquisition in accordance with the first paragraph and subsequently applied, pursuant to Article 40, to the acquisition in the Member State in which dispatch or transport of the goods ends, the taxable amount shall be reduced accordingly in the Member State which issued the VAT identification number under which the person acquiring the goods made the acquisition.
- Article 42
The first paragraph of Article 41 shall not apply and VAT shall be deemed to have been applied to the intra-Community acquisition of goods in accordance with Article 40 where the following conditions are met:
- (a) the person acquiring the goods establishes that he has made the intra-Community acquisition for the purposes of a subsequent supply, within the territory of the Member State identified in accordance with Article 40, for which the person to whom the supply is made has been designated in accordance with Article 197 as liable for payment of VAT;
- (b) the person acquiring the goods has satisfied the obligations laid down in Article 265 relating to submission of the recapitulative statement.
TITLE IX - EXEMPTIONS
- CHAPTER 4 - Exemptions for intra-community transactions
- Section 1 - Exemptions related to the supply of goods
- Article 138
1. Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, where the following conditions are met
- (a) the goods are supplied to another taxable person, or to a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods begins;
- (b) the taxable person or non-taxable legal person for whom the supply is made is identified for VAT purposes in a Member State other than that in which the dispatch or transport of the goods begins and has indicated this VAT identification number to the supplier.
1a. The exemption provided for in paragraph 1 shall not apply where the supplier has not complied with the obligation provided for in Articles 262 and 263 to submit a recapitulative statement or the recapitulative statement submitted by him does not set out the correct information concerning this supply as required under Article 264, unless the supplier can duly justify his shortcoming to the satisfaction of the competent authorities.
- Section 2 - Exemptions for intra-Community acquisitions of goods
- Article 140
Member States shall exempt the following transactions:
- (a) the intra-Community acquisition of goods the supply of which by taxable persons would in all circumstances be exempt within their respective territory;
- (b) the intra-Community acquisition of goods the importation of which would in all circumstances be exempt under points (a), (b) and (c) and (e) to (l) of Article 143(1);
- (c) the intra-Community acquisition of goods where, pursuant to Articles 170 and 171, the person acquiring the goods would in all circumstances be entitled to full reimbursement of the VAT due under Article 2(1)(b).
- Article 141
Each Member State shall take specific measures to ensure that VAT is not charged on the intra-Community acquisition of goods within its territory, made in accordance with Article 40, where the following conditions are met:
- (a) the acquisition of goods is made by a taxable person who is not established in the Member State concerned but is identified for VAT purposes in another Member State;
- (b) the acquisition of goods is made for the purposes of the subsequent supply of those goods, in the Member State concerned, by the taxable person referred to in point (a);
- (c) the goods thus acquired by the taxable person referred to in point (a) are directly dispatched or transported, from a Member State other than that in which he is identified for VAT purposes, to the person for whom he is to carry out the subsequent supply;
- (d) the person to whom the subsequent supply is to be made is another taxable person, or a non-taxable legal person, who is identified for VAT purposes in the Member State concerned;
- (e) the person referred to in point (d) has been designated in accordance with Article 197 as liable for payment of the VAT due on the supply carried out by the taxable person who is not established in the Member State in which the tax is due.
- CHAPTER 5 - Exemptions on importation
- Article 143
1. Member States shall exempt the following transactions:
- (a) the final importation of goods of which the supply by a taxable person would in all circumstances be exempt within their respective territory;
- (b) the final importation of goods governed by Council Directives 69/169/EEC , 83/181/EEC and 2006/79/EC ;
- (c) the final importation of goods, in free circulation from a third territory forming part of the Community customs territory, which would be entitled to exemption under point (b) if they had been imported within the meaning of the first paragraph of Article 30;
- (ca) the importation of goods where the VAT is to be declared under the special scheme in Chapter 6, Section 4, of Title XII and where, at the latest upon lodging of the import declaration, the individual VAT identification number for the application of the special scheme of the supplier or of the intermediary acting on his behalf allocated under Article 369q has been provided to the competent customs office in the Member State of importation;
- (d) the importation of goods dispatched or transported from a third territory or a third country into a Member State other than that in which the dispatch or transport of the goods ends, where the supply of such goods by the importer designated or recognised under Article 201 as liable for payment of VAT is exempt under Article 138;
- (e) the reimportation, by the person who exported them, of goods in the state in which they were exported, where those goods are exempt from customs duties;
- ...
2. The exemption provided for in paragraph 1(d) shall apply in cases when the importation of goods is followed by the supply of goods exempted under Article 138(1) and (2)(c) only if at the time of importation the importer has provided to the competent authorities of the Member State of importation at least the following information:
- (a) his VAT identification number issued in the Member State of importation or the VAT identification number of his tax representative, liable for payment of the VAT, issued in the Member State of importation;
- (b) the VAT identification number of the customer, to whom the goods are supplied in accordance with Article 138(1), issued in another Member State, or his own VAT identification number issued in the Member State in which the dispatch or transport of the goods ends when the goods are subject to a transfer in accordance with Article 138(2)(c);
- (c) the evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State.
However, Member States may provide that the evidence referred to in point (c) be indicated to the competent authorities only upon request.
- CHAPTER 6 - Exemptions on exportation
- Article 146
1. Member States shall exempt the following transactions:
- (a) the supply of goods dispatched or transported to a destination outside the Community by or on behalf of the vendor;
- (b) the supply of goods dispatched or transported to a destination outside the Community by or on behalf of a customer not established within their respective territory, with the exception of goods transported by the customer himself for the equipping, fuelling and provisioning of pleasure boats and private aircraft or any other means of transport for private use;
- (c) the supply of goods to approved bodies which export them out of the Community as part of their humanitarian, charitable or teaching activities outside the Community;
- (d) the supply of services consisting in work on movable property acquired or imported for the purpose of undergoing such work within the Community, and dispatched or transported out of the Community by the supplier, by the customer if not established within their respective territory or on behalf of either of them;
- (e) the supply of services, including transport and ancillary transactions, but excluding the supply of services exempted in accordance with Articles 132 and 135, where these are directly connected with the exportation or importation of goods covered by Article 61 and Article 157(1)(a).
2. The exemption provided for in point (c) of paragraph 1 may be granted by means of a refund of the VAT.
TITLE XI - OBLIGATIONS OF TAXABLE PERSONS AND CERTAIN NON-TAXABLE PERSONS
- CHAPTER 1 - Obligation to pay
- Section 1 - Persons liable for payment of VAT to the tax authorities
- Article 192a
For the purposes of this Section, a taxable person who has a fixed establishment within the territory of the Member State where the tax is due shall be regarded as a taxable person who is not established within that Member State when the following conditions are met:
- (a) he makes a taxable supply of goods or of services within the territory of that Member State;
- (b) an establishment which the supplier has within the territory of that Member State does not intervene in that supply.
- Article 193
VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199b and Article 202.
- Article 194
1. Where the taxable supply of goods or services is carried out by a taxable person who is not established in the Member State in which the VAT is due, Member States may provide that the person liable for payment of VAT is the person to whom the goods or services are supplied.
2. Member States shall lay down the conditions for implementation of paragraph 1.
- Article 195
VAT shall be payable by any person who is identified for VAT purposes in the Member State in which the tax is due and to whom goods are supplied in the circumstances specified in Articles 38 or 39, if the supplies are carried out by a taxable person not established within that Member State.
- Article 196
VAT shall be payable by any taxable person, or non-taxable legal person identified for VAT purposes, to whom the services referred to in Article 44 are supplied, if the services are supplied by a taxable person not established within the territory of the Member State.
- Article 197
1. VAT shall be payable by the person to whom the goods are supplied when the following conditions are met:
- (a) the taxable transaction is a supply of goods carried out in accordance with the conditions laid down in Article 141;
- (b) the person to whom the goods are supplied is another taxable person, or a non-taxable legal person, identified for VAT purposes in the Member State in which the supply is carried out;
- (c) the invoice issued by the taxable person not established in the Member State of the person to whom the goods are supplied is drawn up in accordance with Sections 3 to 5 of Chapter 3.
2. Where a tax representative is appointed as the person liable for payment of VAT pursuant to Article 204, Member States may provide for a derogation from paragraph 1 of this Article.
- CHAPTER 6 Recapitulative statements
- Article 262
1. Every taxable person identified for VAT purposes shall submit a recapitulative statement of the following:
- (a) the acquirers identified for VAT purposes to whom he has supplied goods in accordance with the conditions specified in Article 138(1) and point (c) of Article 138(2);
- (b) the persons identified for VAT purposes to whom he has supplied goods which were supplied to him by way of intra-Community acquisition of goods referred to in Article 42;
- (c) the taxable persons, and the non-taxable legal persons identified for VAT purposes, to whom he has supplied services other than services that are exempted from VAT in the Member State where the transaction is taxable and for which the recipient is liable to pay the tax pursuant to Article 196.
2. In addition to the information referred to in paragraph 1, every taxable person shall submit information about the VAT identification number of the taxable persons for whom goods, dispatched or transported under call-off stock arrangements in accordance with the conditions set out in Article 17a, are intended and about any change in the submitted information.
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