Europaudvalget 2005
KOM (2005) 0364
Offentligt
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COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, 5.8.2005
COM(2005) 364 final
Proposal for a
COUNCIL DECISION
authorising Germany to conclude an agreement with Switzerland that includes
provisions derogating from Articles 2 and 3 of the Sixth Council Directive 77/388/EEC
on the harmonisation of the laws of the Member States relating to turnover taxes
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EXPLANATORY MEMORANDUM
1) C
ONTEXT OF THE PROPOSAL
110
•
Grounds for and objectives of the proposal
In a letter registered at the Commission's Secretariat-General on 21 October 2004,
Germany requested authorisation, under Article 30(1) of the Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States
relating to turnover taxes - Common system of value added tax: uniform basis of
assessment, to conclude an agreement with Switzerland that includes tax provisions
derogating from Articles 2 and 3 of the said Directive.
In accordance with Article 30(2) of Directive 77/388/EEC, the Commission informed
the other Member States on 1 December 2004 of the request made and by letter of 2
December 2004, the Commission notified Germany that it had all the information it
considered necessary for appraisal of the request.
120
•
General context
The agreement between Germany and Switzerland will be on the renewal and the
further maintenance of the frontier bridge across the Wutach between Stühlingen
(Baden-Württemberg) and Oberwiesen (Schaffhausen), which links the German federal
road B 315 and the Swiss canton road K 14.
The agreement provides that goods and services supplied for the renewal and the
maintenance of the bridge will be subject to German value added tax and that no Swiss
value added tax will be charged on these supplies.
It also provides that goods imported from Switzerland into Germany will be exempt
from value added tax, provided that the goods are used for the renewal or the
maintenance of this frontier bridge. The derogation does not apply to goods imported
for the same purposes by a public authority.
The principles of territoriality laid down in Directive 77/388/EEC would require
supplies of goods and services carried out in German territory to be subject to German
value added tax whereas corresponding work carried out in Swiss territory would not
be subject to the provisions of Directive 77/388/EEC. Applying these provisions would
mean breaking down operations according to the territory in which each part of the
works was carried out. All goods imported from Switzerland into Germany for
renewing or maintaining the bridge would also be subject to value added tax in
Germany.
The contracting States consider that applying these rules would mean major tax
complications for the businesses responsible for carrying out the works in question.
They therefore consider that the tax provisions in the draft agreement are justified and
that they will simplify the businesses' tax responsibilities.
The Commission accepts that the proposed way of taxing the renewal and maintenance
works and waiving value added tax on goods imported for use in those works is a
simplification which will make it easier for the businesses concerned to apply the tax
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rules than would be the case if the normal rules were applied.
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Existing provisions in the area of the proposal
The Council has on several previous occasions authorised Germany to conclude similar
agreements with third countries on projects in frontier areas and these earlier
agreements included tax provisions similar to those proposed here.
141
•
Consistency with other policies and objectives of the Union
Not applicable.
2) C
ONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
•
219
Consultation of interested parties
Not relevant.
•
Collection and use of expertise
229
There was no need for external expertise.
•
Impact assessment
230
The Decision proposal aims at simplifying the procedure for charging the tax in
relation to the renewal and maintenance of a frontier bridge and has therefore a
potential positive economic impact.
The impact will in any case be limited because of the narrow scope of the derogation.
3) L
EGAL ELEMENTS OF THE PROPOSAL
305
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Summary of the proposed action
Authorisation for Germany to conclude an agreement with Switzerland that includes
provisions derogating from the Sixth Council Directive 77/388/EEC as regards the
territorial application of VAT.
310
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Legal basis
Article 30 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to turnover taxes - Common
system of value added tax: uniform basis of assessment.
329
•
Subsidiarity principle
The proposal falls under the exclusive competence of the Community. The subsidiarity
principle therefore does not apply.
•
Proportionality principle
The proposal complies with the proportionality principle for the following reason(s).
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331
This Decision concerns an authorisation granted to a Member State upon its own
request and does not constitute any obligation.
Given the limited scope of the derogation, the special measure is proportionate to the
aim pursued.
•
Choice of instruments
332
341
Proposed instruments: other.
Other means would not be adequate for the following reason(s).
According to Article 30 of the Sixth Council Directive 77/388/EEC on the
harmonisation of the laws of the Member States relating to turnover taxes, only a
Council Decision is possible.
4) B
UDGETARY IMPLICATION
342
401
If authorisation is granted, the project would have a totally insignificant impact on
Community own resources obtained from value added tax.
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Proposal for a
COUNCIL DECISION
authorising Germany to conclude an agreement with Switzerland that includes
provisions derogating from Articles 2 and 3 of the Sixth Council Directive 77/388/EEC
on the harmonisation of the laws of the Member States relating to turnover taxes
(Only the German version is authentic)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes – Common system of value added
tax: uniform basis of assessment
1
, and in particular Article 30 thereof,
Having regard to the proposal from the Commission
2
,
Whereas:
(1)
Under article 30(1) of Directive 77/388/EEC, the Council, acting unanimously on a
proposal from the Commission, may authorise any Member State to conclude with a
third country an agreement which may contain derogations from that Directive.
In a letter registered at the Commission's Secretariat-General on 21 October 2004,
Germany requested authorisation to conclude an agreement with Switzerland on the
renewal and further maintenance of an existing frontier bridge across the Wutach
between Stühlingen (Baden-Württemberg) and Oberwiesen (Schaffhausen).
In accordance with article 30(2) of Directive 77/388/EEC, the Commission informed
the other Member States by letter dated 1 December 2004 of the request made by
Germany. By letter dated 2 December 2004, the Commission notified Germany that it
had all the information it considered necessary for appraisal of the request.
The agreement is to contain provisions on VAT derogating from Articles 2(2) and 3 of
Directive 77/388/EEC in respect of goods and services supplied for the renewal and
further maintenance of the frontier bridge and of goods imported for the same
purposes.
If the derogations to Directive 77/388/EEC were not granted, renewal and
maintenance carried out in Germany would be subject to German VAT whereas those
carried out in Switzerland would not be subject to the provisions of Directive
(2)
(3)
(4)
(5)
1
2
OJ L 145, 13.6.1977, p. 1. Directive last amended by Directive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).
OJ C , , p. .
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77/388/EEC. Also, goods imported from Switzerland into Germany for the renewal or
maintenance of the frontier bridge would be subject to German VAT.
(6)
(7)
(8)
Application of these normal rules would mean serious tax complications for the
businesses responsible for carrying out the works.
This derogation is intended to simplify the collection of taxes on the works involved in
renewing and further maintaining the bridge in question.
The derogation will have a totally insignificant effect on the Community's own
resources accruing from VAT.
HAS ADOPTED THIS DECISION:
Article 1
Germany is hereby authorised to conclude an Agreement with Switzerland that includes
provisions derogating from the Sixth Council Directive 77/388/EEC that covers the renewal
and the further maintenance of a frontier bridge across the Wutach between Stühlingen
(Baden-Württemberg) and Oberwiesen (Schaffhausen).
The derogating tax provisions of the Agreement are set out in Articles 2 and 3.
Article 2
By way of derogation from Article 3 of the Sixth Council Directive 77/388/EEC, the part of
the bridge that is situated in Swiss territory shall be deemed to be part of German territory for
the purposes of the supplies of goods and services for the renewal and the further maintenance
of the bridge.
Article 3
By way of derogation from Article 2(2) of the Sixth Council Directive 77/388/EEC, goods
imported from Switzerland into Germany shall not be subject to value added tax, provided
they are used for the renewal or further maintenance of the bridge referred to in Article 1.
However, this derogation shall not apply to goods imported for the same purposes by a public
authority.
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels,
For the Council
The President
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