- Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ L347, 11.12.2006, p 1.
- Originally inserted into the Sixth VAT Directive as Art 21(2)(c) by Directive 2006/69/EC, OJ L221, 12.08.2006, p 9.
- Inserted into the VAT Directive by Directive 2010/23/EU, OJ L72, 20.3.2010, p 1.
- For example, the introduction of what is now Art 199 was proposed on 16 March 2005 (see COM(2005) 89) and adopted 16 months later on 24 July 2006.
- For an Article 395 procedure see, ex multis, Council implementing Decision of 22 November 2010 authorising Germany, Italy and Austria to introduce a special measure derogating from Art 193 of Directive 2006/112/EC and amending Decision 2007/250/EC to extend the period of validity of the authorisation granted to the United Kingdom (2010/710/EU), OJ L309, 25.11.2010, p 5. The Decision refers to letters registered with the Secretariat- General of the Commission on 3 August 2007, 23 December 2009 and 17 February 2010 in which respectively Italy, Germany and Austria requested authorisation to introduce a special measure derogating from Art 193 of Directive 2006/112/EC as regards the person liable for payment of VAT.
- The introduction of Art 199a regarding the greenhouse gas emission allowances trade was proposed on 29 September 2009 (see COM(2009) 511) and adopted six months later on 16 March 2010, entering into force on 19 April 2010. Presumably the harm had already been done; see n 7 below.
- A recent example is the estimated loss of EUR 5 billion between June 2008 and December 2009 in relation to the greenhouse gas emission allowances trade. Europol press release, ‘Carbon Credit Fraud Causes More than EUR 5 Billion Damage for European Taxpayer’, 9 December 2009.
- For example, France introduced a VAT exemption for the greenhouse gas emission allowances trade without a proper EU legal basis. Such a measure, even where appropriate and proportionate in relation to the fraud situation, could be challenged before the courts for lack of legal basis.
- COM(2012) 428.
- Or, in duly justified specific cases and in the cases provided for in Arts 24 and 26 of the Treaty on European Union (dealing with common foreign and security policy), on the Council.
- 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 L55, 28.2.2011, p 13, replacing Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (1999/468/EC). See further section 3 below.
- The Commission must adopt an implementing act establishing a standardised form for submission of the information referred to above (Art 395a(3)). That implementing act must be adopted in accordance with the examination procedure referred to in Art 395b(2); see further section 3 below. According to the Explanatory Memorandum to the proposal, the standardised form will contain a pre-established list of questions, allowing for a quicker and more comprehensive examination and assessment of the fraud situation for which the derogation demand is lodged.
- See further section 3 below.
- See further section 3 below.
- Art 8 of the Comitology Regulation dealing with immediately applicable implementing acts provides in para 2 that the Commission must adopt an implementing act which shall apply immediately, without prior submission to a committee, and shall remain in force for a period not exceeding six months unless the basic act provides otherwise.
- According to the Explanatory Memorandum to the proposal, once a QRM request is submitted, there will be little or no time for a fundamental debate between Member States on the type of anti-fraud measures. This will allow the Commission to work on the basis of, to a large extent, pre-established texts, thereby reducing timeframes for case handling and translations.
- According to the Explanatory Memorandum to the proposal, this measure, notwithstanding its possible mediumterm negative side-effects, has proven to be an effective tool in stopping fraud (and in particular carousel fraud) when targeted at certain specific sectors.
- This Regulation lays down the rules and general principles governing the mechanisms that apply where a legally binding Union act (referred to as a ‘basic act’) identifies the need for uniform conditions of implementation and requires that the adoption of implementing acts by the Commission be subject to the control of Member States. According to Art 2 of the Comitology Regulation dealing with election of procedures, a basic act may provide for the application of the advisory procedure or the examination procedure, taking into account the nature or the impact of the implementing act required. The examination procedure applies, in particular, for the adoption of: (a) implementing acts of general scope; (b) other implementing acts relating to (i) programmes with substantial implications; (ii) the common agricultural and common fisheries policies; (iii) the environment, security and safety, or protection of the health or safety, of humans, animals or plants; (iv) the common commercial policy; and (v) taxation.
- Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (recast), OJ L268, 12.10.2010, p 1.
- According to Art 3(2), the Commission shall be assisted by a committee composed of representatives of the Member States. The committee shall be chaired by a representative of the Commission. The chair shall not take part in the committee vote.
- Prescribed for adoption of implementing acts (Art 395a(1), second subparagraph), unless the procedure for immediately applicable acts applies (Art 395a(1), third subparagraph), and for adoption of a standardised form for submission of information (Art 395a(3)).
- Thus, after all not all acts in the field of taxation require unanimity.
- Laid down in Art 16(4) and (5) of the Treaty on European Union and, where applicable, Art 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles. Art 16(4) and (5) of the Treaty on European Union provides the following:
- As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least 15 of them and representing Member States comprising at least 65% of the population of the Union.
- A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
- The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union.
- The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
- Article 238(3) TFEU provides:
- As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:
- A qualified majority shall be defined as at least 55% of the members of the Council representing the participating Member States, comprising at least 65% of the population of these States.
- This is without prejudice to Art 7 dealing with the adoption of implementing acts in exceptional cases.
- Art 8(1) provides that by way of derogation from Arts 4 and 5, a basic act may provide that, on duly justified imperative grounds of urgency, Art 8 is to apply.
- Art 8(2) provides that the Commission shall adopt an implementing act which shall apply immediately, without prior submission to a committee, and shall remain in force for a period not exceeding six months unless the basic act provides otherwise.
- The Commission has indicated that it intends to make use of that option with a view to speeding up the procedure as much as possible.
- According to the Explanatory Memorandum to the proposal, it is to be understood that, should the committee deliver a negative opinion, the Commission must immediately repeal the derogation in accordance with Art 8(3) of the Comitology Regulation.
World Journal of VAT/GST Law
Volume 1, 2012 - Issue 2
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