LegalizeCouncil Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (recast)
Member States shall without delay notify by electronic means the competent authorities of the other Member States and the Commission of changes in the tax rates applicable for supplies of goods and services to which the special schemes apply.
Subsection 3 Control of transactions and taxable persons
Article 47h
Member States shall, upon importation of goods on which VAT is to be declared under the special scheme provided for in Section 4 of Chapter 6 of Title XII of Directive 2006/112/EC, carry out an electronic verification of the validity of the individual VAT identification number allocated by way of Article 369q of that Directive and communicated at the latest upon lodging of the import declaration.
Article 47i
To obtain the records held by a taxable person or intermediary pursuant to Articles 369, 369k and 369x of Directive 2006/112/EC, the Member State of consumption shall first make a request to the Member State of identification by electronic means.
Where the Member State of identification receives a request referred to in paragraph 1, it shall transmit that request by electronic means and without delay to the taxable person or his intermediary.
Member States shall provide that, upon request, a taxable person or his intermediary submits the requested records by electronic means to the Member State of identification. Member States shall accept that the records may be submitted using a standard form.
The Member State of identification shall transmit the records obtained by electronic means and without delay to the requesting Member State of consumption.
Where the requesting Member State of consumption does not receive the records within 30 days of the date of the making of the request, that Member State may take any action in accordance with its national legislation to obtain such records.
Article 47j
If the Member State of identification decides to carry out in its territory an administrative enquiry on a taxable person who makes use of one of the special schemes provided for in Chapter 6 of Title XII of Directive 2006/112/EC or, if applicable, on an intermediary it shall inform in advance of the enquiry the competent authorities of all the other Member States.
The first subparagraph shall apply only in respect of an administrative enquiry concerning the special schemes.
Without prejudice to Article 7(4), if the Member State of consumption decides that an administrative enquiry is required, it shall first consult with the Member State of identification on the need for such an enquiry.
In cases where the need for an administrative enquiry is agreed, the Member State of identification shall inform the other Member States.
This shall not preclude Member States to take any action in accordance with their national legislation.
Each Member State shall communicate to the other Member States and the Commission the details of the competent authority responsible for coordination of administrative enquiries within that Member State.
Subsection 4 Statistical information
Article 47k
Member States shall allow the Commission to extract information directly from messages generated by the computerised system referred to in Article 53 for aggregated statistical and diagnostic purposes pursuant to points (d) and (e) of Article 17(1). This information shall not contain data concerning individual taxable persons.
Subsection 5 Conferral of implementing powers
Article 47l
For the purpose of the uniform application of this Regulation, the Commission shall be empowered to adopt the following measures in accordance with the procedure referred to in Article 58(2):
- (a) the technical details, including a common electronic message, for providing the information referred to in Articles 47b(1), 47c(1), and 47d(1), and the standard form as referred to in Article 47i(3);
- (b) the technical details, including a common electronic message, for providing the information referred to in Articles 47b(2) and (3), 47c(2) and (3), 47d(2), 47e, 47f(2), 47i(1), (2) and (4), and 47j(1), (2) and (3) as well as the technical means for the transmission of this information;
- (c) the technical details for the transmission between Member States of the information referred to in Article 47g;
- (d) the technical details concerning the verification of the information referred to in Article 47h by the Member State of importation;
- (e) the aggregated statistical and diagnostic information to be extracted by the Commission as referred to in Article 47k as well as the technical means for the extraction of this information.
CHAPTER XII EXCHANGE AND CONSERVATION OF INFORMATION IN THE CONTEXT OF THE PROCEDURE FOR THE REFUND OF VAT TO TAXABLE PERSONS NOT ESTABLISHED IN THE MEMBER STATE OF REFUND BUT ESTABLISHED IN ANOTHER MEMBER STATE
Article 48
Where the competent authority of the Member State of establishment receives an application for refund of VAT pursuant to Article 5 of Directive 2008/9/EC, and Article 18 of that Directive is not applicable, it shall, within 15 calendar days of its receipt and by electronic means, forward the application to the competent authorities of each Member State of refund concerned with confirmation that the applicant as defined in Article 2(5) of Directive 2008/9/EC is a taxable person for the purposes of VAT and that the identification or registration number given by this person is valid for the refund period.
Where the Member State of establishment becomes aware that a taxable person making a request for refund of VAT, in accordance with Article 5 of Directive 2008/9/EC, has tax liabilities in that Member State of establishment, it may request the consent of the taxable person for the transfer of the VAT refund directly to this Member State in order to discharge the outstanding tax liabilities. Where the taxable person consents to this transfer, the Member State of establishment shall inform the Member State of refund of the amount regarding which the consent is obtained and the Member State of refund on behalf of the taxable person shall transfer this amount to the Member State of establishment. The Member State of establishment shall inform the taxable person whether the amount transferred amounts to either a full or a partial discharge of the tax liability in accordance with its national law and administrative practices. However, the transfer of the VAT refund to the Member State of establishment shall not affect the right of the Member State of refund to recover the liabilities that the taxable person has in the latter Member State.
Where the tax liabilities in the Member State of establishment are disputed, the transfer of the refund amounts can be used by the Member State of establishment as a retention measure, with the consent of the taxable person, in so far as an effective judicial review is ensured in that Member State.
The competent authorities of each Member State of refund shall notify by electronic means the competent authorities of the other Member States of any information required by them pursuant to Article 9(2) of Directive 2008/9/EC. The technical details, including a common electronic message by which this information is to be transmitted, shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation.
The competent authorities of each Member State of refund shall notify by electronic means the competent authorities of the other Member States if they want to make use of the option to require the applicant to provide the description of business activity by harmonised codes as referred to in Article 11 of Directive 2008/9/EC.
The harmonised codes referred to in the first subparagraph shall be determined in accordance with the procedure provided for in Article 58(2) of this Regulation on the basis of the NACE classification established by Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2 ([^E0004]).
CHAPTER XIII RELATIONS WITH THE COMMISSION AND OTHER INSTITUTIONS, BODIES, OFFICES AND AGENCIES OF THE UNION
Article 49
The Member States and the Commission shall examine and evaluate how the arrangements for administrative cooperation provided for in this Regulation are working. The Commission shall pool the Member States’ experience with the aim of improving the operation of those arrangements.
The Member States shall communicate to the Commission any available information relevant to their application of this Regulation.
2a. The Member States may communicate to OLAF relevant information to enable it to consider appropriate action in accordance with its mandate. Where that information was received from another Member State, the latter may require that the transmission of the information be subject to its prior agreement.
A list of statistical data needed for evaluation of this Regulation shall be determined in accordance with the procedure provided for in Article 58(2). The Member States shall communicate these data to the Commission in so far as they are available and the communication is not likely to involve administrative burdens which would be unjustified.
With a view to evaluating the effectiveness of this system of administrative cooperation in combating tax evasion and tax avoidance, Member States may communicate to the Commission any other information referred to in Article 1.
The Commission shall forward the information referred to in paragraphs 2, 3 and 4 to the other Member States concerned.
Where necessary, in addition to what is required by other provisions in this Regulation, the Commission shall send to the competent authorities of each Member State any information that might enable them to combat fraud in the field of VAT as soon as it obtains such information.
The Commission may, at the request of a Member State, provide its expert opinions, technical or logistical assistance, or any other support with a view to attaining the objectives of this Regulation.
CHAPTER XIV RELATIONS WITH THIRD COUNTRIES
Article 50
When the competent authority of a Member State receives information from a third country, that authority may pass the information on to the competent authorities of Member States which might be interested in it and, in any event, to all those which request it, in so far as permitted by assistance arrangements with that particular third country.
Competent authorities may communicate, in accordance with their domestic provisions on the communication of personal data to third countries, information obtained in accordance with this Regulation to a third country, provided that the following conditions are met:
- (a) the competent authority of the Member State from which the information originates has consented to that communication; and
- (b) the third country concerned has given an undertaking to provide the cooperation required to gather evidence of the irregular nature of transactions which appear to contravene VAT legislation.
CHAPTER XV CONDITIONS GOVERNING THE EXCHANGE OF INFORMATION
Article 51
Information communicated pursuant to this Regulation shall, as far as possible, be provided by electronic means under arrangements to be adopted in accordance with the procedure provided for in Article 58(2).
Where the request has not been lodged completely through the electronic system referred to in paragraph 1, the requested authority shall confirm receipt of the request by electronic means without delay and, in any event, no later than five working days after receipt.
Where an authority has received a request or information of which it is not the intended recipient, it shall send a message by electronic means to the sender without delay and, in any event, no later than five working days after receipt.
Article 52
Requests for assistance, including requests for notification, and attached documents may be made in any language agreed between the requested and requesting authority. The said requests shall be accompanied by a translation into the official language or one of the official languages of the Member State in which the requested authority is established only in special cases when the requested authority gives a reason for asking for such a translation.
Article 53
The Commission and the Member States shall ensure that such existing or new communication and information exchange systems which are necessary to provide for the exchanges of information described in this Regulation are operational. A service level agreement ensuring the technical quality and quantity of the services to be delivered by the Commission and the Member States for the functioning of those communication and information exchange systems shall be decided in accordance with the procedure provided for in Article 58(2). The Commission shall be responsible for whatever development of the CCN/CSI network is necessary to permit the exchange of this information between Member States. Member States shall be responsible for whatever development of their systems is necessary to permit this information to be exchanged using the CCN/CSI network.
Member States shall waive all claims for the reimbursement of expenses incurred in applying this Regulation except, where appropriate, in respect of fees paid to experts.
Article 54
The requested authority in one Member State shall provide a requesting authority in another Member State with the information referred to in Article 1 provided that:
- (a) the number and the nature of the requests for information made by the requesting authority within a specific period do not impose a disproportionate administrative burden on that requested authority;
- (b) that requesting authority has exhausted the usual sources of information which it could have used in the circumstances to obtain the information requested, without running the risk of jeopardising the achievement of the desired end.
This Regulation shall impose no obligation to have enquiries carried out or to provide information on a particular case if the laws or administrative practices of the Member State which would have to supply the information do not authorise the Member State to carry out those enquiries or collect or use that information for that Member State’s own purposes.
The competent authority of a requested Member State may refuse to provide information where the requesting Member State is unable, for legal reasons, to provide similar information. The Commission shall be informed of the grounds of the refusal by the requested Member State.
The provision of information may be refused where it would lead to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information whose disclosure would be contrary to public policy.
Paragraphs 2, 3 and 4 should on no account be interpreted as authorising the requested authority of a Member State to refuse to supply information on a taxable person identified for VAT purposes in the Member State of the requesting authority on the sole grounds that this information is held by a bank, other financial institution, nominee or person acting in an agency or fiduciary capacity or because it relates to ownership interests in a legal person.
The requested authority shall inform the requesting authority of the grounds for refusing a request for assistance.
A minimum threshold triggering a request for assistance may be adopted in accordance with the procedure provided for in Article 58(2).
Article 55
Information communicated or collected in any form pursuant to this Regulation, including any information to which an official has had access in the circumstances set out in Chapters VII, VIII and X, and in the cases referred to in paragraph 2 of this Article, shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under both the national law of the Member State which received it and the corresponding provisions applicable to Union authorities. Such information shall be used only in the circumstances provided for in this Regulation.
Such information may be used for the purpose of establishing the assessment base or the collection or administrative control of tax for the purpose of establishing the assessment base.
The information may also be used for the assessment of other levies, duties, and taxes covered by Article 2 of Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures ([^E0005]).
In addition, it may be used in connection with judicial proceedings that may involve penalties, initiated as a result of infringements of tax law without prejudice to the general rules and legal provisions governing the rights of defendants and witnesses in such proceedings.
1a. The information referred to in Section 2 of Chapter V shall only be used for the purposes referred to in paragraph 1 and where it has been verified by reference to other tax information available to the competent authorities of the Member States.
Persons duly accredited by the Security Accreditation Authority of the Commission may have access to this information only in so far as it is necessary for care, maintenance and development of the electronic systems hosted by the Commission and used by the Member States to implement this Regulation.
By way of derogation from paragraph 1, the competent authority of the Member State providing the information shall permit its use for other purposes in the Member State of the requesting authority, if, under the legislation of the Member State of the requested authority, the information can be used for similar purposes.
Where the requesting authority considers that information it has received from the requested authority is likely to be useful to the competent authority of a third Member State, it may transmit it to the latter authority. It shall inform the requested authority thereof in advance. The requested authority may require that the transmission of the information to a third party be subject to its prior agreement.
All storage, processing or exchange of information referred to in this Regulation is subject to Regulations (EU) 2016/679 ([^E0006]) and (EC) No 45/2001 ([^E0007]) of the European Parliament and of the Council. However, Member States shall for the purpose of the correct application of this Regulation, restrict the scope of the obligations and rights provided for in Articles 12 to 15, 17, 21 and 22 of Regulation (EU) 2016/679. Such restrictions shall be limited to what is strictly necessary in order to safeguard the interests referred to in point (e) of Article 23(1) of that Regulation, in particular to:
- (a) enable the competent authorities of the Member States to fulfil their tasks properly for the purposes of this Regulation; or
- (b) avoid obstructing official or legal enquiries, analyses, investigations or procedures for the purposes of this Regulation and to ensure that the prevention, investigation and detection of tax evasion and tax fraud is not jeopardised.
The processing and storage of information referred to in this Regulation shall be carried out only for the purposes referred to in Article 1(1) of this Regulation and the information shall not be further processed in a way that is incompatible with those purposes. The processing of personal data on the basis of this Regulation for any other purposes, such as commercial purposes, shall be prohibited. The storage periods of this information shall be limited to the extent necessary to achieve those purposes. The storage periods of the information referred to in Article 17 of this Regulation shall be determined as per the limitation periods provided for in the legislation of the Member State concerned but no longer than ten years.
Article 56
Reports, statements and any other documents, or certified true copies or extracts thereof, obtained by the staff of the requested authority and communicated to the requesting authority under the assistance provided for by this Regulation may be invoked as evidence by the competent bodies of the Member State of the requesting authority on the same basis as similar documents provided by another authority of that country.
Article 57
For the purpose of applying this Regulation, Member States shall take all necessary measures to:
- (a) ensure effective internal coordination between the competent authorities;
- (b) establish direct cooperation between the authorities authorised for the purposes of such coordination;
- (c) ensure the smooth operation of the information exchange arrangements provided for in this Regulation.
The Commission shall communicate to each Member State, as quickly as possible, any information which it receives and which it is able to provide.
CHAPTER XVI FINAL PROVISIONS
Article 58
The Commission shall be assisted by the Standing Committee on Administrative Cooperation.
Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council ([^E0008]) shall apply.
Article 59
By 1 November 2013 and thereafter every five years, the Commission shall report to the European Parliament and the Council on the application of this Regulation.
Member States shall communicate to the Commission the text of any provisions of national law which they adopt in the field covered by this Regulation.
Article 60
This Regulation shall be without prejudice to the fulfilment of any wider obligations in relation to mutual assistance ensuing from other legal acts, including bilateral or multilateral agreements.
Where the Member States conclude bilateral arrangements on matters covered by this Regulation, in particular pursuant to Article 11, other than to deal with individual cases, they shall inform the Commission without delay. The Commission shall in turn inform the other Member States.
Article 61
Regulation (EC) No 1798/2003 shall be repealed with effect from 1 January 2012. However, the effects of Article 2(1) of that Regulation shall be maintained until the date of publication by the Commission of the list of competent authorities referred to in Article 3 of this Regulation.
Chapter V, with the exception of Article 27(4), of that Regulation shall remain applicable until 31 December 2012.
References made to the repealed Regulation shall be construed as references to this Regulation.
Article 62
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 1 January 2012.
However, Articles 33 to 37 shall apply from 1 November 2010;
Chapter V, with the exception of Articles 22 and 23, shall apply from 1 January 2013;
- — Articles 38 to 42 shall apply from 1 January 2012 until 31 December 2014; and
- — Articles 43 to 47 shall apply from 1 January 2015.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX II
Repealed Regulation and successive amendments
| Council Regulation (EC) No 1798/2003 | OJ L 264, 15.10.2003, p. 1. |
| Council Regulation (EC) No 885/2004 | OJ L 168, 1.5.2004, p. 1. |
| Council Regulation (EC) No 1791/2006 | OJ L 363, 20.12.2006, p. 1. |
| Council Regulation (EC) No 143/2008 | OJ L 44, 20.2.2008, p. 1. |
| Council Regulation (EC) No 37/2009 | OJ L 14, 20.1.2009, p. 1. |
ANNEX III
CORRELATION TABLE
| Regulation (EC) No 1798/2003 | This Regulation |
|---|---|
| First and second subparagraphs of Article 1(1) | First and second subparagraphs of Article 1(1) |
| Third subparagraph of Article 1(1) | — |
| Fourth subparagraph of Article 1(1) | Article 1(4) |
| Article 1(2) | Article 1(3) |
| Article 2(1)(1) | Article 3 |
| Article 2(1)(2) | Article 2(1)(a) |
| Article 2(1)(3) | Article 2(1)(b) |
| Article 2(1)(4) | Article 2(1)(c) |
| Article 2(1)(5) | Article 2(1)(d) |
| Article 2(1)(6) | Article 2(1)(e) |
| Article 2(1)(7) | Article 2(1)(f) |
| Article 2(1)(8) | Article 2(1)(g) |
| Article 2(1)(9) | Article 2(1)(h) |
| Article 2(1)(10) | Article 2(1)(i) |
| Article 2(1)(11) | Article 2(1)(j) |
| Article 2(1)(12) | Article 2(1)(k) |
| Article 2(1)(13) | Article 2(1)(l) |
| Article 2(1)(14) | — |
| Article 2(1)(15) | Article 2(1)(m) |
| Article 2(1)(16) | Article 2(1)(n) |
| Article 2(1)(17) | — |
| Article 2(1)(18) | Article 2(1)(p) |
| Article 2(1)(19) | Article 2(1)(q) |
| Article 2(2) | Article 2(2) |
| Article 3(1) | — |
| Article 3(2) | Article 4(1) |
| Article 3(3) | Article 4(2) |
| Article 3(4) | Article 4(3) |
| Article 3(5) | Article 4(4) |
| Article 3(6) | Article 5 |
| Article 3(7) | Article 6 |
| Article 4 | — |
| Article 5(1) | Article 7(1) |
| Article 5(2) | Article 7(2) |
| Article 5(3) | Up to 31 December 2014: Article 7(3) From 1 January 2015: Article 7(4) |
| Article 5(4) | Article 7(5) |
| Article 6 | Article 8 |
| Article 7 | Article 9 |
| Article 8 | Article 10 |
| Article 9 | Article 11 |
| Article 10 | Article 12 |
| Article 11 | Article 28 |
| Article 12 | Article 29 |
| Article 13 | Article 30 |
| Article 14 | Article 25 |
| Article 15 | Article 26 |
| Article 16 | Article 27 |
| Article 17 first subparagraph | Article 13(1) |
| Article 17 second subparagraph | Article 14(2) |
| Article 18 | First subparagraph of Article 14(1) |
| Article 19 | — |
| Article 20 | — |
| Article 21 | Second subparagraph of Article 14(1) |
| First subparagraph of Article 22(1) | Article 17(1)(a) |
| Second subparagraph of Article 22(1) | Article 18 |
| Article 22(2) | Article 19 |
| First paragraph of Article 23 | Article 21(2)(a) and (b) |
| Second paragraph of Article 23 | Second subparagraph of Article 21(2) |
| First paragraph of Article 24, point (1) | Article 21(2)(c) |
| First paragraph of Article 24, point (2) | Article 21(2)(d) |
| Second paragraph of Article 24 | Second subparagraph of Article 21(2) |
| Article 25(1) | Article 20(1) |
| Article 25(2) | Article 20(2) |
| Article 25(3) | — |
| Article 26 | Article 24 first subparagraph |
| Article 27(1) | Article 17(1)(b) |
| Article 27(2) | Article 17(1)(b) and Article 21(1) |
| Article 27(3) | Article 17(1)(b) and Article 21(1) |
| Article 27(4) | Article 31 |
| Article 27(5) | Article 24 |
| Article 28 | Up to 31 December 2014: Article 38 From 1 January 2015: Article 43 |
| Article 29 | Up to 31 December 2014: Article 39 From 1 January 2015: Article 44 |
| Article 30 | Up to 31 December 2014: Article 40 From 1 January 2015: Article 45 |
| Article 31 | Article 17(1)(d) |
| Article 32 | Up to 31 December 2014: Article 41 From 1 January 2015: Article 46 |
| Article 33 | Up to 31 December 2014: Article 42 From 1 January 2015: Article 47 |
| Article 34 | — |
| Article 34a | Article 48 |
| Article 35 | Article 49 |
| Article 36 | Article 50 |
| Article 37 | Article 51(1) |
| Article 38 | Article 52 |
| Article 39 | Article 53 |
| Article 40 | Article 54 |
| Article 41 | Article 55 |
| Article 42 | Article 56 |
| Article 43 | Article 57 |
| Article 44 | Article 58 |
| Article 45 | Article 59 |
| Article 46 | Article 60 |
| Article 47 | Article 61 |
| Article 48 | Article 62 |
[^E0001]: Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).
[^E0002]: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
[^E0003]: Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).
[^E0004]: OJ L 393, 30.12.2006, p. 1.
[^E0005]: OJ L 150, 10.6.2008, p. 28.
[^E0006]: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
[^E0007]: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
[^E0008]: Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
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