Nařízení Rady (EU) 2018/1541 ze dne 2. října 2018, kterým se mění nařízení (EU) č. 904/2010 a (EU) 2017/2454, pokud jde o opatření k posílení správní spolupráce v oblasti daně z přidané hodnoty

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 113 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European ParliamentOpinion of the European Parliament of 3 July 2018 (not yet published in the Official Journal). ,

Having regard to the opinion of the European Economic and Social CommitteeOpinion of the European Economic and Social Committee of 23 May 2018 (not yet published in the Official Journal). ,

Acting in accordance with a special legislative procedure,

Opinion of the European Parliament of 3 July 2018 (not yet published in the Official Journal).

(1) The current system for the taxation of trade between Member States is based on transitional arrangements introduced in 1993 which have become outdated and prone to fraud in the context of a highly complex value added tax (VAT) system. In October 2017, the Commission put forward a legislative proposal setting out the principles for a definitive VAT system for cross-border business-to-business trade between Member States that would be based on the taxation of cross-border supplies in the Member State of destination. Given the fact that it could take several years for the definitive VAT system for intra-Union trade to be fully implemented, short-term measures are needed to combat cross-border VAT fraud more effectively and in a more timely manner. Improving and simplifying the administrative cooperation instruments, in particular Eurofisc, is also of significant importance in the fight against VAT fraud in general and to strengthen trust between tax authorities before the definitive VAT regime is introduced.

(2) Carrying out an administrative enquiry is often necessary to combat VAT fraud in particular when the taxable person is not established in the Member States where the tax is due. To ensure the proper enforcement of VAT and to avoid duplication of work and administrative burden of tax authorities and business, where at least two Member States consider that an administrative enquiry into the amounts declared by a taxable person not established on their territory but taxable therein is necessary, the Member State where the taxable person is established should undertake the enquiry unless it is able to provide the information requested. The requiring Member States should stand ready to assist the Member State of establishment by taking part actively in the enquiry. As the officials of the requesting Member States might have better knowledge of the facts and circumstances of the case and where the requested Member State has not required officials from the requesting Member States the officials of the latter should be able to be present during the administrative enquiry in so far as conditions under national law of the requested Member State for such a presence are met. In this occasion the officials of the requesting Member States should have access to the same premises and documents as the officials

(3) Forwarding information without a prior request to the competent authorities of other Member States in accordance with Council Regulation (EU) No 904/2010Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 268, 12.10.2010, p. 1 ). should be as simple and effective as possible. It is therefore necessary to allow competent authorities to forward information by means other than the standard forms when they deem other secure means more appropriate and agree to use them or when the information has been received from a third country.

(4) The VAT exemption for the imports of goods provided for in Article 143(2) of Council Directive 2006/112/ECCouncil Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1 ). (customs procedures 42 and 63) is often abused and goods are diverted to the black market without VAT having been paid. It is therefore essential that customs officials, when checking whether the requirements for applying the exemption are met, have access to the registry of VAT identification numbers and the recapitulative statements. Furthermore, the information collated by the customs authorities, as part of this procedure, should also be made available to the competent authorities of the Member State where the subsequent intra-Community acquisition should take place.

(5) In order to tackle fraud arising from the dual VAT regime applicable to cars, Eurofisc liaison officials should be able to access vehicle registration data in an automated way. It would allow them to identify swiftly who has committed the fraudulent transactions and where. Such access should be made available via the European Vehicle and Driving Licence Information System (EUCARIS) software application, whose use is mandatory for Member States under Council Decisions 2008/615/JHACouncil Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 1 ). and 2008/616/JHACouncil Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 12 ). , as regards vehicle registration data.

(6) In order to ensure uniform conditions for the implementation of the provisions on automated access to information collated by the customs authorities and to vehicle registration data, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the CouncilRegulation (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 ). .

(7) For the purpose of ensuring the effective and efficient monitoring of VAT on cross-border transactions, Regulation (EU) No 904/2010 provides for the presence of officials in administrative offices and during administrative enquiries in other Member States. In order to strengthen the capacity of tax authorities to check cross-border supplies, there should be administrative enquiries carried out jointly enabling officials from two or more Member States to form a single team and actively take part in an administrative enquiry carried out jointly.

(8) In order to combat the most serious cross-border frauds, it is necessary to clarify and strengthen the governance, tasks and functioning of Eurofisc. Eurofisc liaison officials should be able to access, exchange, process and analyse all necessary information swiftly and coordinate any follow-up actions. However, such coordination does not imply a right for requiring any specific enquiry actions from the participating Member State. It is also necessary to strengthen the fight against VAT fraud at Union level, in particular by enabling Eurofisc working field coordinators to request targeted information from the European Union Agency for Law Enforcement Cooperation (Europol) and the European Anti-Fraud Office (OLAF). Therefore, in order to receive relevant information in return held by Europol and OLAF, Eurofisc working field coordinators should be able to send as much information as necessary to Europol and OLAF.

(9) In order to ensure uniform conditions for the implementation of the provisions on Eurofisc, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

(10) Organising the forwarding of requests for VAT refunds pursuant to Article 5 of Council Directive 2008/9/ECCouncil Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ L 44, 20.2.2008, p. 23 ). offers an opportunity to reduce the administrative burden for the competent authorities to recover unpaid tax liabilities in the Member State of establishment.

(11) Member States may also communicate to OLAF relevant information where they consider it appropriate. This would enable OLAF to fulfil its mandate to carry out administrative investigations into fraud, corruption and other illegal activities affecting the financial interests of the Union, and to provide assistance to the Member States in order to coordinate their action to protect the financial interests of the Union against fraud.

(12) The Commission may have access to the information communicated or collected pursuant to Regulation (EU) No 904/2010 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 for the purpose of this Regulation.

(13) Regulation (EU) 2016/679 of the European Parliament and of the CouncilRegulation (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 ). applies to the processing of personal data for the purpose of Regulation (EU) No 904/2010. Regulation (EC) No 45/2001 of the European Parliament and of the CouncilRegulation (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 ). applies to the processing of personal data by the Union institutions and bodies for the purpose of that Regulation. The fight against VAT fraud is recognised as an important objective of general public interest of both the Union and its Member States. For the purposes of achieving the objectives of Regulation (EU) No 904/2010, namely the objective to cooperate and to exchange information that helps to effect a correct assessment of VAT, to monitor correct application of VAT, particularly on intra-Community transactions, and to combat VAT fraud, it is appropriate to provide for specific and limited restrictions on certain rights and obligations laid down by Regulation (EU) 2016/679.

(14) More specifically, full application of the rights and obligations foreseen in Regulation (EU) 2016/679 would seriously undermine the effectiveness of the fight against VAT fraud as it would in particular allow the data subjects to obstruct ongoing investigations and risk profiling. This would jeopardise official or legal enquiries, analyses, investigations or procedures that are carried out in accordance with Regulation (EU) No 904/2010. It would also disable the administrative cooperation between the competent authorities which is a key instrument for the purpose of combating VAT fraud. Consequently, restrictions should be provided as regards the right for transparent information, the right to receive information where personal data are collected from the data subject, the right to receive information where personal data have not been obtained from the data subject, the right of access by the data subject, the right to erasure, the right to object to processing of personal data and the right concerning automated individual decision-making, including profiling. Exercise of these rights should be restricted only as long as it is necessary in order not to undermine the purposes pursued under Article 1 of Regulation (EU) No 904/2010. This restriction should only apply as regards certain categories of data referred to in Articles 1, 14 and 17 of that Regulation to the extent it is strictly necessary in order to ensure compliance with VAT legislation, and the relevant provisions of this Regulation.

(15) As the objective of preventing, investigating and detecting VAT evasion and VAT fraud cannot be achieved by other less restrictive means of equal effectiveness, these restrictions are strictly necessary for the purpose of achieving the specific purpose in question. They are also proportionate in view of the loss of revenue for the Union and the Member States and the crucial importance of making information available in order to combat fraud effectively. The processing and the storage of information collected and exchanged under this Regulation is limited to the objectives of fight against VAT fraud. Information collected and exchanged under this Regulation does not concern sensitive data. It may not be further processed in a way that is incompatible with such purposes, including prohibition to process it for commercial purposes. As regards the safeguards to prevent abuse or unlawful access or transfer, Regulation (EU) No 904/2010 already provides detailed conditions concerning the access of the competent national authorities to the data and their subsequent use in order to achieve the general aim of that Regulation. The data retention period should be limited to what is necessary for the purpose of achieving the objectives pursued.

(16) As Council Regulation (EU) 2017/2454Council Regulation (EU) 2017/2454 of 5 December 2017 amending Regulation (EU) No 904/2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 348, 29.12.2017, p. 1 ). has also amended Article 17 of Regulation (EU) No 904/2010, with application from 1 January 2021 , it is necessary to amend Regulation(EU) 2017/2454 in order to update the relevant cross-references to that Article. As Regulation (EU) 2017/2454 has also amended Annex I to Regulation (EU) No 904/2010, with application from 1 January 2021 , it is necessary to amend Regulation (EU) 2017/2454 as Annex I is no longer necessary and therefore should be deleted.

(17) As the implementation of the provisions on the automated access to the information collated by the customs authorities and to vehicle registration data will require new technological developments, it is necessary to defer their application to allow the Member States and the Commission to carry out those developments.

(18) Since the objectives of this Regulation, namely improving the cooperation instruments between Member States and combating cross-border fraud in the field of VAT, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(19) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered its formal comments on 21 March 2018 .

(20) Regulation (EU) No 904/2010 and Regulation (EU) 2017/2454 should therefore be amended accordingly,

Article 1 of Regulation (EU) 2017/2454 is amended as follows:

The Commission shall adopt by means of implementing acts the technical details concerning the automated enquiry of the information referred to in points (a) to (f) of paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).;

Opinion of the European Economic and Social Committee of 23 May 2018 (not yet published in the Official Journal).

Article 2 Article 2 Amendments to Regulation (EU) 2017/2454

Article 3 Article 3 Entry into force and application

(1) point 5 is replaced by the following:(5) in Article 17, paragraph 2 is replaced by the following:2.The Commission shall adopt by means of implementing acts the technical details concerning the automated enquiry of the information referred to in points (a) to (f) of paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).;

(2) point 8 is deleted.

Article 21a Article 21a 1.Every Member State shall grant the competent authority of any other Member State automated access to the following information in relation to national vehicle registrations: (a) identification data relating to vehicles;(b) identification data relating to the owners and the holders of the vehicle in whose name the vehicle is registered, as defined in the law of the Member State of registration. 2.Access to the information referred to in paragraph 1 shall be granted under the following conditions: (a) access is in connection with an investigation into suspected VAT fraud or is to detect VAT fraud;(b) access is through a Eurofisc liaison official, as referred to in Article 36(1), who holds a personal user identification for the electronic systems allowing access to this information. 3.The Commission shall determine by means of implementing acts the data elements and the technical details concerning the automated enquiry of the information referred to in paragraph 1 of this Article and the practical arrangements as regards the conditions provided for in paragraph 2 of this Article in order to enable the Member State providing the information to identify the Eurofisc liaison official accessing the information. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).;

Article 24 Article 24

Article 35 Article 35

Article 37 Article 37

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

Points (3) (a), (b) and (c), points (4) (a), (c) and (e) and points (5), (6) and (14) of Article 1 shall apply from 1 January 2020 .

Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 268, 12.10.2010, p. 1 ).

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1 ).

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 1 ).

Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 12 ).

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 ).

Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ L 44, 20.2.2008, p. 23 ).

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 ).

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 ).

Council Regulation (EU) 2017/2454 of 5 December 2017 amending Regulation (EU) No 904/2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 348, 29.12.2017, p. 1 ).

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 ).

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 ).;

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 ).;

Every Member State shall grant the competent authority of any other Member State automated access to the following information in relation to national vehicle registrations:

(a) identification data relating to vehicles;

(b) identification data relating to the owners and the holders of the vehicle in whose name the vehicle is registered, as defined in the law of the Member State of registration.

Access to the information referred to in paragraph 1 shall be granted under the following conditions:

(a) access is in connection with an investigation into suspected VAT fraud or is to detect VAT fraud;

(b) access is through a Eurofisc liaison official, as referred to in Article 36(1), who holds a personal user identification for the electronic systems allowing access to this information.

The Commission shall determine by means of implementing acts the data elements and the technical details concerning the automated enquiry of the information referred to in paragraph 1 of this Article and the practical arrangements as regards the conditions provided for in paragraph 2 of this Article in order to enable the Member State providing the information to identify the Eurofisc liaison official accessing the information. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).;

Where, for the purposes of Articles 17 to 21a, the competent authorities of the Member States exchange information by electronic means, they shall take all measures necessary to ensure compliance with Article 55.

Member States shall be responsible for all necessary developments to their systems to permit the exchange of that information using the CCN/CSI network or any other similar secure network used to exchange the information referred to in Article 21a by electronic means.;

The Commission shall provide Eurofisc with technical and logistical support. The Commission shall not have access to the information referred to in Article 1, which may be exchanged over Eurofisc, except in the circumstances provided for in Article 55(2).;

The Eurofisc chairperson shall submit an annual report on the activities of all of the working fields to the Committee referred to in Article 58(1).

The Commission shall adopt by means of implementing acts the procedural arrangements in relation to Eurofisc. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).;

HAS ADOPTED THIS REGULATION: