Commissie maant vier lidstaten om snel de nationale BTW-wetgeving aan te passen aan EU-richtlijnen (en)

The Commission has decided to send the following countries formal requests to rectify incorrect applications of VAT rules: Greece, for its refusal to exempt the "insurance" aspect of roadside assistance contracts and for the obligation it imposes on non-established taxable persons to appoint a tax representative, although this obligation was removed by Directive 2000/65/EC; Spain, because Spanish legislation imposes VAT on services carried out free of charge even if they are carried out for the purpose of business; France, because it has introduced limits not provided for by the Directive in respect of products carried in the luggage of travellers from non-member countries; and Poland, for exempting certain internet access services that should be taxed. The requests take the form of reasoned opinions (the second phase in the infringement procedure laid down by Article 226 of the Treaty). If the Member States concerned fail to bring their legislation into line within two months of receipt of the reasoned opinion, the Commission could take the matter to the Court of Justice.

Greece: refusal to exempt the "insurance" aspect of roadside assistance

In Greece, ELPA is the roadside assistance body that comes to the assistance of motorists whose vehicle has broken down or had an accident. Members pay an annual flat-rate subscription which ensures supply of the breakdown service in the event of problems. The Commission considers that the conditions laid down by the Court of Justice for part of the fee to be considered the provision of insurance services are fulfilled. The provision of insurance services is exempt under the Sixth VAT Directive (77/388/EEC), but Greece charges VAT on the full membership subscription.

As the observations submitted by Greece in response to the formal notice sent to it were considered unsatisfactory, the Commission has decided to send it a reasoned opinion.

Greece: obligation to appoint a tax representative

Greek legislation imposes on non-established taxable persons who are established within the Community the obligation of appointing a "fiscal advisor, accountant or adviser" to fulfil the tax obligations of the non-established taxable person. Moreover, the legislation imposes the obligation of maintaining accounts in Greece and within the territory of the competent tax office.

Greece also makes it imperative for tax declarations to be signed by an economics graduate with a licence to act as an accountant or tax consultant who must certify that the transposition of the declared operations is accurate. This latter obligation applies to all businesses keeping accounts, as well as to businesses that apply a single entry system (revenue and expenditure accounts), where the amounts exceed €300 000 for the supply of goods and €150 000 for the provision of services.

With regard to the appointment of a tax representative, the Sixth VAT Directive, following its amendment by Directive 2000/65/EC, establishes that Member States may allow non-established taxable persons who are established within another Member State to appoint a tax representative. The appointment is always optional for the trader and never an obligation imposed by the Member State.

As for the obligation of keeping accounts in Greece, this means that the non-established trader has only two options: he must either appoint a tax representative (which, imposed as an obligation, would be contrary to the Sixth Directive) or he must establish a fixed place of establishment in Greece (which would be contrary to the freedom of movement of goods and the freedom to provide services established under the EC Treaty).

Finally, the obligation of having the tax declarations signed by an economics graduate with a licence to act as an accountant or tax consultant goes beyond the options allowed to Member States under the Sixth VAT Directive.

Spain: imposition of VAT on services carried out free of charge

Under Spanish VAT law all supplies of services carried out free of charge by a taxable person must, for VAT purposes, be treated as supplies of services for consideration and are, therefore, subject to VAT.

However, the Sixth VAT Directive stipulates that supplies of services carried out free of charge by a taxable person should be treated as supplies of services for consideration only:

;
• where the supply is made by the taxable person for his own private use or that of his staff or
;
• where the supply is made for purposes other than those of his business.

Therefore the Directive does not allow supplies of services effected free of charge by a taxable person for the purposes of his business to be treated for VAT purposes as supplies of services for consideration.

France: limits in respect of products carried in the luggage of travellers from non-member countries

In accordance with Community directives, French law provides that travellers from non-member countries can carry away in their luggage goods for which VAT will be reimbursed. However, this exemption does not apply to food products, manufactured tobacco or unmounted precious stones. While the Sixth VAT Directive provides for certain limits (the goods must be of a certain amount, the purchase must not be for a commercial purpose, the goods must not be intended for the provisioning of means of transport), it does not allow additional conditions to be introduced. The limits provided for under French law are therefore in breach of the Directive and an undue restriction on the duty-free purchases of travellers not established in the EU.

As the French authorities did not submit observations in response to the letter of formal notice sent to them in July, the Commission has decided to send France a reasoned opinion.

Poland: exemption of internet services

Polish VAT law exempts from VAT:

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• services consisting of providing internet access to students, schools and public cultural institutions;
;
• services consisting of dial-up and broadband internet access when supplied to individual users not engaged in commercial activities related to the broadband access.

However, is no provision in the Sixth VAT Directive which allows Poland to apply such exemptions.

The latest information on infringement procedures concerning all Member States can be found at the following site:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm