HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 319/8
EN
Official Journal of the European Union
16.11.2012
COUNCIL IMPLEMENTING DECISION
of 13 November 2012
amending Decision 2009/791/EC and Implementing Decision 2009/1013/EU authorising Germany
and Austria respectively to continue to apply a measure derogating from Articles 168 and 168a of
Directive 2006/112/EC on the common system of value added tax
(2012/705/EU)
THE COUNCIL OF THE EUROPEAN UNION,
Austria. By letter dated 23 April 2012, the Commission
notified Austria that it had all the information necessary
to consider the request.
Having regard to the Treaty on the Functioning of the European
Union,
(5) The
derogating
measure
pursued
by
both
Member
States
is intended to exclude completely value added tax (VAT)
Having regard to Council Directive 2006/112/EC of
borne on goods and services from the right of deduction
28 November 2006 on the common system of value added
where those goods and services are used more than 90 %
tax ( 1 ), and in particular Article 395(1) thereof,
for the private purposes of a taxable person or of his
employees, or for non-business purposes in general.
Having regard to the proposal from the European Commission,
(6) The
measure
derogates
from
Articles
168
and
168a
of
Whereas:
Directive 2006/112/EC which govern the taxable

persons’ right to deduct VAT charged on goods and
services supplied to them for the purposes of their
(1) By
letter
registered
with
the
Secretariat-General
of
the
taxed transactions. The objective of the derogating
Commission on 5 January 2012, Germany requested
measure is to simplify the procedure for charging and
authorisation to continue to apply a measure that was
collecting VAT thereby also preventing tax evasion and
previously granted by Council Decision 2009/791/EC of
avoidance. The amount of tax due at the level of final
20 October 2009 authorising the Federal Republic of
consumption is only affected to a negligible extent.
Germany to continue to apply a measure derogating
from Article 168 of Directive 2006/112/EC on the
common system of value added tax (
(7) According
to
the
information
provided
by
Germany
and

2 ), derogating from
the provisions of Directive 2006/112/EC governing the
Austria, the legal and factual situation which justified the
right of deduction.
current application of the derogating measure has not
changed and continues to exist. Germany and Austria
should therefore be authorised to continue applying
(2) By
letter
registered
with
the
Secretariat-General
of
the
that measure during a further period, but limited in
Commission on 16 April 2012, Austria requested auth
time until 31 December 2015, in order to allow for a
orisation to continue to apply a measure that was
review of the necessity and effectiveness of the
previously granted by Council Implementing Decision
derogating measure and the apportionment rate
2009/1013/EU of 22 December 2009 authorising the
between business and non-business use it is based on.
Republic of Austria to continue to apply a measure
derogating from Article 168 of Directive 2006/112/EC
on the common system of value added tax (
(8) Where
Germany
or
Austria
considers
a
further
extension

3 ), derogating
from the provisions of Directive 2006/112/EC governing
beyond 2015 to be necessary, a report on the application
the right of deduction.
of the derogating measure, which includes a review of
the apportionment rate applied, should be submitted to
the Commission together with the extension request by
(3) In
accordance
with
the
second
subparagraph
of
31 March 2015 in order to reserve sufficient time for the
Article 395(2) of Directive 2006/112/EC, the
Commission to examine the request and, in case the
Commission informed the other Member States, by
Commission would come forward with a proposal, for
letter dated 4 April 2012, of the request made by
the Council to adopt it.
Germany. By letter dated 11 April 2012, the
Commission notified Germany that it had all the
information necessary to consider the request.
(9) On
29
October
2004,
the
Commission
adopted
a
proposal for a Council Directive amending Directive
77/388/EEC, now Directive 2006/112/EC, that includes
(4) In
accordance
with
the
second
subparagraph
of
the harmonisation of the categories of expenses for
Article 395(2) of Directive 2006/112/EC, the
which exclusions of the right of deduction may apply.
Commission informed the other Member States, by
The derogating measure provided for in this Decision
letter dated 20 April 2012, of the request made by
should expire on the date as from which Member
States are to or may apply the rules laid down in such
an amending Directive adopted by the Council after this
( 1 ) OJ L 347, 11.12.2006, p. 1.
( 2 ) OJ L 283, 30.10.2009, p. 55.
Decision takes effect, if that date is earlier than the date
( 3 ) OJ L 348, 29.12.2009, p. 21.
of expiry provided for in this Decision.

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EN
16.11.2012 Official
Journal
of
the
European
Union
L
319/9
(10) The derogations will only have a negligible effect on the
‘Article 1
overall amount of tax collected at the stage of final
consumption and will not adversely affect the Union’s
By way of derogation from Articles 168 and 168a of
own resources accruing from value added tax.
Directive 2006/112/EC, Austria is authorised to exclude
VAT borne on goods and services from the right to deduct
(11) Decision 2009/791/EC and Implementing Decision
VAT when the goods and services in question are used more
2009/1013/EU should therefore be amended accordingly,
than 90 % for the private purposes of a taxable person or of
his employees, or, more generally, for non-business purposes.
HAS ADOPTED THIS DECISION:
Article 2
Article 1
1. This
Decision
shall
expire
on
the
date
as
from
which
Articles 1 and 2 of Decision 2009/791/EC are replaced by the
Member States shall or may apply Union rules governing
following:
restrictions on a taxable person’s right of deduction
adopted by the Council after this Decision takes effect, or
‘Article 1
on 31 December 2015, whichever is the earlier.
By way of derogation from Articles 168 and 168a of
Directive 2006/112/EC, Germany is authorised to exclude
2. Any request for the extension of the measure provided
VAT borne on goods and services from the right to deduct
for in this Decision shall be submitted to the Commission by
VAT when the goods and services in question are used more
31 March 2015.
than 90 % for the private purposes of a taxable person or of
his employees, or, more generally, for non-business purposes.
Such request shall be accompanied by a report which
includes a review of the apportionment rate applied on the
Article 2
right to deduct VAT on the basis of this Decision.’.
1. This
Decision
shall
expire
on
the
date
as
from
which
Member States shall or may apply Union rules governing
Article 3
restrictions on a taxable person’s right of deduction
This Decision shall apply as from 1 January 2013.
adopted by the Council after this Decision takes effect, or
on 31 December 2015, whichever is the earlier.
Article 4
2. Any request for the extension of the measure provided
This Decision is addressed to the Federal Republic of Germany
for in this Decision shall be submitted to the Commission by
and to the Republic of Austria.
31 March 2015.
Such request shall be accompanied by a report which
includes a review of the apportionment rate applied on the
Done at Brussels, 13 November 2012.
right to deduct VAT on the basis of this Decision.’.
Article 2
For the Council
Articles 1 and 2 of Implementing Decision 2009/1013/EU are
The President
replaced by the following:
V. SHIARLY

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Document Outline

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