title: Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of supply of services

text:
               20.2.2008

               EN

               Official Journal of the European Union

               L 44/11

      COUNCIL DIRECTIVE 2008/8/EC
   of 12 February 2008
   amending Directive 2006/112/EC as regards the place of supply of services
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 93 thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Parliament (1),
   Having regard to the opinion of the European Economic and Social Committee (2),
   Whereas:

               (1)

               The realisation of the internal market, globalisation, deregulation and technology change have all combined to create enormous changes in the volume and pattern of trade in services. It is increasingly possible for a number of services to be supplied at a distance. In response, piece-meal steps have been taken to address this over the years and many defined services are in fact at present taxed on the basis of the destination principle.

               (2)

               The proper functioning of the internal market requires the amendment of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (3) as regards the place of supply of services, following the Commission's strategy of modernisation and simplification of the operation of the common VAT system.

               (3)

               For all supplies of services the place of taxation should, in principle, be the place where the actual consumption takes place. If the general rule for the place of supply of services were to be altered in this way, certain exceptions to this general rule would still be necessary for both administrative and policy reasons.

               (4)

               For supplies of services to taxable persons, the general rule with respect to the place of supply of services should be based on the place where the recipient is established, rather than where the supplier is established. For the purposes of rules determining the place of supply of services and to minimise burdens on business, taxable persons who also have non-taxable activities should be treated as taxable for all services rendered to them. Similarly, non-taxable legal persons who are identified for VAT purposes should be regarded as taxable persons. These provisions, in accordance with normal rules, should not extend to supplies of services received by a taxable person for his own personal use or that of his staff.

               (5)

               Where services are supplied to non-taxable persons, the general rule should continue to be that the place of supply of services is the place where the supplier has established his business.

               (6)

               In certain circumstances, the general rules as regards the place of supply of services for both taxable and non-taxable persons are not applicable and specified exclusions should apply instead. These exclusions should be largely based on existing criteria and reflect the principle of taxation at the place of consumption, while not imposing disproportionate administrative burdens upon certain traders.

               (7)

               Where a taxable person receives services from a person not established in the same Member State, the reverse charge mechanism should be obligatory in certain cases, meaning that the taxable person should self-assess the appropriate amount of VAT on the acquired service.

               (8)

               To simplify the obligations on businesses engaging in activities in Member States where they are not established, a scheme should be set up enabling them to have a single point of electronic contact for VAT identification and declaration. Until such a scheme is established, use should be made of the scheme introduced to facilitate compliance with fiscal obligations by taxable persons not established within the Community.

               (9)

               In order to further the correct application of this Directive every taxable person identified for VAT purposes should submit a recapitulative statement of the taxable persons and the non-taxable legal persons identified for VAT purposes to whom he has supplied taxable services which fall under the reverse charge mechanism.

               (10)

               Some of the changes made to the place of supply of services could have a considerable impact on the budget of Member States. To ensure a smooth transition these changes should be introduced over time.

               (11)

               In accordance with point 34 of the Interinstitutional Agreement on better law-making (4), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

               (12)

               Directive 2006/112/EC should therefore be amended accordingly,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   From 1 January 2009, Directive 2006/112/EC is hereby amended as follows:

               1.

               in Article 56, paragraph 3 shall be replaced by the following:
               ‘3.   Points (j) and (k) of paragraph 1 and paragraph 2 shall apply until 31 December 2009.’;

               2.

               in Article 57, paragraph 2 shall be replaced by the following:
               ‘2.   Paragraph 1 shall apply until 31 December 2009.’;

               3.

               in Article 59, paragraph 2 shall be replaced by the following:
               ‘2.   Until 31 December 2009, Member States shall apply Article 58(b) to radio and television broadcasting services, as referred to in Article 56(1)(j), supplied to non-taxable persons who are established in a Member State, or who have their permanent address or usually reside in a Member State, by a taxable person who has established his business outside the Community or who has a fixed establishment there from which the services are supplied, or who, in the absence of such a place of business or fixed establishment, has his permanent address or usually resides outside the Community.’;

               4.

               Article 357 shall be replaced by the following:
               ‘Article 357
               This Chapter shall apply until 31 December 2014.’.

         Article 2
   From 1 January 2010, Directive 2006/112/EC is hereby amended as follows:

               1.

               Chapter 3 of Title V shall be replaced by the following:
               ‘CHAPTER 3
               Place of supply of services
               Section 1
               Definitions
               Article 43
               For the purpose of applying the rules concerning the place of supply of services:

                           1.

                           a taxable person who also carries out activities or transactions that are not considered to be taxable supplies of goods or services in accordance with Article 2(1) shall be regarded as a taxable person in respect of all services rendered to him;

                           2.

                           a non-taxable legal person who is identified for VAT purposes shall be regarded as a taxable person.

                     Section 2
               General rules
               Article 44
               The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. However, if those services are provided to a fixed establishment of the taxable person located in a place other than the place where he has established his business, the place of supply of those services shall be the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the taxable person who receives such services has his permanent address or usually resides.
               Article 45
               The place of supply of services to a non-taxable person shall be the place where the supplier has established his business. However, if those services are provided from a fixed establishment of the supplier located in a place other than the place where he has established his business, the place of supply of those services shall be the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the supplier has his permanent address or usually resides.
               Section 3
               Particular provisions
               Subsection 1
               Supply of services by intermediaries
               Article 46
               The place of supply of services rendered to a non-taxable person by an intermediary acting in the name and on behalf of another person shall be the place where the underlying transaction is supplied in accordance with this Directive.
               Subsection 2
               Supply of services connected with immovable property
               Article 47
               The place of supply of services connected with immovable property, including the services of experts and estate agents, the provision of accommodation in the hotel sector or in sectors with a similar function, such as holiday camps or sites developed for use as camping sites, the granting of rights to use immovable property and services for the preparation and coordination of construction work, such as the services of architects and of firms providing on-site supervision, shall be the place where the immovable property is located.
               Subsection 3
               Supply of transport
               Article 48
               The place of supply of passenger transport shall be the place where the transport takes place, proportionate to the distances covered.
               Article 49
               The place of supply of the transport of goods, other than the intra-Community transport of goods, to non-taxable persons shall be the place where the transport takes place, proportionate to the distances covered.
               Article 50
               The place of supply of the intra-Community transport of goods to non-taxable persons shall be the place of departure.
               Article 51
               “Intra-Community transport of goods” shall mean any transport of goods in respect of which the place of departure and the place of arrival are situated within the territories of two different Member States.
               “Place of departure” shall mean the place where transport of the goods actually begins, irrespective of distances covered in order to reach the place where the goods are located and “place of arrival” shall mean the place where transport of the goods actually ends.
               Article 52
               Member States need not apply VAT to that part of the intra-Community transport of goods to non-taxable persons taking place over waters which do not form part of the territory of the Community.
               Subsection 4
               Supply of cultural, artistic, sporting, scientific, educational, entertainment and similar services, ancillary transport services and valuations of and work on movable property
               Article 53
               The place of supply of services and ancillary services relating to cultural, artistic, sporting, scientific, educational, entertainment or similar activities, such as fairs and exhibitions, including the supply of services of the organisers of such activities, shall be the place where those activities are physically carried out.
               Article 54
               The place of supply of the following services to non-taxable persons shall be the place where the services are physically carried out:

                           (a)

                           ancillary transport activities such as loading, unloading, handling and similar activities;

                           (b)

                           valuations of and work on movable tangible property.

                     Subsection 5
               Supply of restaurant and catering services
               Article 55
               The place of supply of restaurant and catering services other than those physically carried out on board ships, aircraft or trains during the section of a passenger transport operation effected within the Community, shall be the place where the services are physically carried out.
               Subsection 6
               Hiring of means of transport
               Article 56
               1.   The place of short-term hiring of a means of transport shall be the place where the means of transport is actually put at the disposal of the customer.
               2.   For the purposes of paragraph 1, “short-term” shall mean the continuous possession or use of the means of transport throughout a period of not more than thirty days and, in the case of vessels, not more than ninety days.
               Subsection 7
               Supply of restaurant and catering services for consumption on board ships, aircraft or trains
               Article 57
               1.   The place of supply of restaurant and catering services which are physically carried out on board ships, aircraft or trains during the section of a passenger transport operation effected within the Community, shall be at the point of departure of the passenger transport operation.
               2.   For the purposes of paragraph 1, “section of a passenger transport operation effected within the Community” shall mean the section of the operation effected, without a stopover outside the Community, between the point of departure and the point of arrival of the passenger transport operation.
               “Point of departure of a passenger transport operation” shall mean the first scheduled point of passenger embarkation within the Community, where applicable after a stopover outside the Community.
               “Point of arrival of a passenger transport operation” shall mean the last scheduled point of disembarkation within the Community of passengers who embarked in the Community, where applicable before a stopover outside the Community.
               In the case of a return trip, the return leg shall be regarded as a separate transport operation.
               Subsection 8
               Supply of electronic services to non-taxable persons
               Article 58
               The place of supply of electronically supplied services, in particular those referred to in Annex II, when supplied to non-taxable persons who are established in a Member State, or who have their permanent address or usually reside in a Member State, by a taxable person who has established his business outside the Community or has a fixed establishment there from which the service is supplied, or who, in the absence of such a place of business or fixed establishment, has his permanent address or usually resides outside the Community, shall be the place where the non-taxable person is established, or where he has his permanent address or usually resides.
               Where the supplier of a service and the customer communicate via electronic mail, that shall not of itself mean that the service supplied is an electronically supplied service.
               Subsection 9
               Supply of services to non-taxable persons outside the Community
               Article 59
               The place of supply of the following services to a non-taxable person who is established or has his permanent address or usually resides outside the Community, shall be the place where that person is established, has his permanent address or usually resides:

                           (a)

                           transfers and assignments of copyrights, patents, licences, trade marks and similar rights;

                           (b)

                           advertising services;

                           (c)

                           the services of consultants, engineers, consultancy firms, lawyers, accountants and other similar services, as well as data processing and the provision of information;

                           (d)

                           obligations to refrain from pursuing or exercising, in whole or in part, a business activity or a right referred to in this Article;

                           (e)

                           banking, financial and insurance transactions including reinsurance, with the exception of the hire of safes;

                           (f)

                           the supply of staff;

                           (g)

                           the hiring out of movable tangible property, with the exception of all means of transport;

                           (h)

                           the provision of access to, and of transport or transmission through, natural gas and electricity distribution systems and the provision of other services directly linked thereto;

                           (i)

                           telecommunications services;

                           (j)

                           radio and television broadcasting services;

                           (k)

                           electronically supplied services, in particular those referred to in Annex II.

                     Where the supplier of a service and the customer communicate via electronic mail, that shall not of itself mean that the service supplied is an electronically supplied service.
               Subsection 10
               Prevention of double taxation or non-taxation
               Article 59a
               In order to prevent double taxation, non-taxation or distortion of competition, Member States may, with regard to services the place of supply of which is governed by Articles 44, 45, 56 and 59:

                           (a)

                           consider the place of supply of any or all of those services, if situated within their territory, as being situated outside the Community if the effective use and enjoyment of the services takes place outside the Community;

                           (b)

                           consider the place of supply of any or all of those services, if situated outside the Community, as being situated within their territory if the effective use and enjoyment of the services takes place within their territory.

                     However, this provision shall not apply to the electronically supplied services where those services are rendered to non-taxable persons not established within the Community.
               Article 59b
               Member States shall apply Article 59a(b) to telecommunications services and radio and television broadcasting services, as referred to in point (j) of the first paragraph of Article 59, supplied to non-taxable persons who are established in a Member State, or who have their permanent address or usually reside in a Member State, by a taxable person who has established his business outside the Community or has a fixed establishment there from which the services are supplied, or who, in the absence of such a place of business or fixed establishment, has his permanent address or usually resides outside the Community.’;

               2.

               in Article 98(2), the second subparagraph shall be replaced by the following:
               ‘The reduced rates shall not apply to electronically supplied services.’;

               3.

               the introductory sentence of Article 170 shall be replaced by the following:
               ‘All taxable persons who, within the meaning of Article 1 of Directive 86/560/EEC (5), Article 2(1) and Article 3 of Directive 2008/9/EC (6) and Article 171 of this Directive, are not established in the Member State in which they purchase goods and services or import goods subject to VAT shall be entitled to obtain a refund of that VAT insofar as the goods and services are used for the purposes of the following:

               4.

               Article 171 shall be amended as follows:

                           (a)

                           paragraph 1 shall be replaced by the following:
                           ‘1.   VAT shall be refunded to taxable persons who are not established in the Member State in which they purchase goods and services or import goods subject to VAT but who are established in another Member State, in accordance with the detailed rules laid down in Directive 2008/9/EC.’;

                           (b)

                           paragraph 3 shall be replaced by the following:
                           ‘3.   Directive 86/560/EEC shall not apply to:

                                       (a)

                                       amounts of VAT which according to the legislation of the Member State of refund have been incorrectly invoiced;

                                       (b)

                                       invoiced amounts of VAT in respect of supplies of goods the supply of which is, or may be, exempt pursuant to Article 138 or Article 146(1)(b).’;

               5.

               the following Article 171a shall be inserted:
               ‘Article 171a
               Member States may, instead of granting a refund of VAT pursuant to Directives 86/560/EEC or 2008/9/EC on those supplies of goods or services to a taxable person in respect of which the taxable person is liable to pay the tax in accordance with Articles 194 to 197 or Article 199, allow deduction of this tax pursuant to the procedure laid down in Article 168. The existing restrictions pursuant to Article 2(2) and Article 4(2) of Directive 86/560/EEC may be retained.
               To that end, Member States may exclude the taxable person who is liable to pay the tax from the refund procedure pursuant to Directives 86/560/EEC or 2008/9/EC.’;

               6.

               in Section 1 of Chapter 1 of Title XI, the following Article 192a shall be inserted:
               ‘Article 192a
               For the purposes of this Section, a taxable person who has a fixed establishment within the territory of the Member State where the tax is due shall be regarded as a taxable person who is not established within that Member State when the following conditions are met:

                           (a)

                           he makes a taxable supply of goods or of services within the territory of that Member State;

                           (b)

                           an establishment which the supplier has within the territory of that Member State does not intervene in that supply.’;

               7.

               Article 196 shall be replaced by the following:
               ‘Article 196
               VAT shall be payable by any taxable person, or non-taxable legal person identified for VAT purposes, to whom the services referred to in Article 44 are supplied, if the services are supplied by a taxable person not established within the territory of the Member State.’;

               8.

               in Article 214, the following points shall be added:

                           ‘(d)

                           every taxable person who within their respective territory receives services for which he is liable to pay VAT pursuant to Article 196;

                           (e)

                           every taxable person, established within their respective territory, who supplies services within the territory of another Member State for which VAT is payable solely by the recipient pursuant to Article 196.’;

               9.

               Article 262 shall be replaced by the following:
               ‘Article 262
               Every taxable person identified for VAT purposes shall submit a recapitulative statement of the following:

                           (a)

                           the acquirers identified for VAT purposes to whom he has supplied goods in accordance with the conditions specified in Article 138(1) and (2)(c);

                           (b)

                           the persons identified for VAT purposes to whom he has supplied goods which were supplied to him by way of intra-Community acquisitions referred to in Article 42;

                           (c)

                           the taxable persons, and the non-taxable legal persons identified for VAT purposes, to whom he has supplied services, other than services that are exempted from VAT in the Member State where the transaction is taxable, and for which the recipient is liable to pay the tax pursuant to Article 196.’;

               10.

               in Article 264, paragraph 1 shall be amended as follows:

                           (a)

                           points (a) and (b) shall be replaced by the following:

                                       ‘(a)

                                       the VAT identification number of the taxable person in the Member State in which the recapitulative statement must be submitted and under which he has carried out the supply of goods in accordance with the conditions specified in Article 138(1) and under which he effected taxable supplies of services in accordance with the conditions laid down in Article 44;

                                       (b)

                                       the VAT identification number of the person acquiring the goods or receiving the services in a Member State other than that in which the recapitulative statement must be submitted and under which the goods or services were supplied to him;’;

                           (b)

                           point (d) shall be replaced by the following:

                                       ‘(d)

                                       for each person who acquired goods or received services, the total value of the supplies of goods and the total value of the supplies of services carried out by the taxable person;’;

               11.

               Article 358 shall be amended as follows:

                           (a)

                           point (2) shall be replaced by the following:

                                       ‘(2)

                                       “electronic services” and “electronically supplied services” mean the services referred to in point (k) of the first paragraph of Article 59;’;

                           (b)

                           point (4) shall be replaced by the following:

                                       ‘(4)

                                       “Member State of consumption” means the Member State in which, pursuant to Article 58, the supply of the electronic services is deemed to take place;’;

               12.

               in Annex II, the heading shall be replaced by the following:
               ‘INDICATIVE LIST OF THE ELECTRONICALLY SUPPLIED SERVICES REFERRED TO IN ARTICLE 58 AND POINT (K) OF THE FIRST PARAGRAPH OF ARTICLE 59’.

         Article 3
   From 1 January 2011, Articles 53 and 54 of Directive 2006/112/EC shall be replaced by the following:

      ‘Article 53
      The place of supply of services in respect of admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events, such as fairs and exhibitions, and of ancillary services related to the admission, supplied to a taxable person, shall be the place where those events actually take place.
      Article 54
      1.   The place of supply of services and ancillary services, relating to cultural, artistic, sporting, scientific, educational, entertainment or similar activities, such as fairs and exhibitions, including the supply of services of the organisers of such activities, supplied to a non-taxable person shall be the place where those activities actually take place.
      2.   The place of supply of the following services to a non-taxable person shall be the place where the services are physically carried out:

                  (a)

                  ancillary transport activities such as loading, unloading, handling and similar activities;

                  (b)

                  valuations of and work on movable tangible property.’.

   Article 4
   From 1 January 2013, Article 56(2) of Directive 2006/112/EC shall be replaced by the following:

      ‘2.   The place of hiring, other than short-term hiring, of a means of transport to a non-taxable person shall be the place where the customer is established, has his permanent address or usually resides.
      However, the place of hiring a pleasure boat to a non-taxable person, other than short-term hiring, shall be the place where the pleasure boat is actually put at the disposal of the customer, where this service is actually provided by the supplier from his place of business or a fixed establishment situated in that place.
      3.   For the purposes of paragraphs 1 and 2, “short-term” shall mean the continuous possession or use of the means of transport throughout a period of not more than thirty days and, in the case of vessels, not more than 90 days.’.

   Article 5
   From 1 January 2015, Directive 2006/112/EC is hereby amended as follows:

               1.

               in Section 3 of Chapter 3 of Title V, Subsection 8 shall be replaced by the following:
               ‘Subsection 8
               Supply of telecommunications, broadcasting and electronic services to non-taxable persons
               Article 58
               The place of supply of the following services to a non-taxable person shall be the place where that person is established, has his permanent address or usually resides:

                           (a)

                           telecommunications services;

                           (b)

                           radio and television broadcasting services;

                           (c)

                           electronically supplied services, in particular those referred to in Annex II.

                     Where the supplier of a service and the customer communicate via electronic mail, that shall not of itself mean that the service supplied is an electronically supplied service.’;

               2.

               in Article 59, points (i), (j) and (k) of the first paragraph and the second paragraph shall be deleted;

               3.

               Article 59a shall be replaced by the following:
               ‘Article 59a
               In order to prevent double taxation, non-taxation or distortion of competition, Member States may, with regard to services the place of supply of which is governed by Articles 44, 45, 56, 58 and 59:

                           (a)

                           consider the place of supply of any or all of those services, if situated within their territory, as being situated outside the Community if the effective use and enjoyment of the services takes place outside the Community;

                           (b)

                           consider the place of supply of any or all of those services, if situated outside the Community, as being situated within their territory if the effective use and enjoyment of the services takes place within their territory.’;

               4.

               Article 59b shall be deleted;

               5.

               in Article 204(1), the third subparagraph shall be replaced by the following:
               ‘However, Member States may not apply the option referred to in the second subparagraph to a taxable person not established within the Community, within the meaning of point (1) of Article 358a, who has opted for the special scheme for telecommunications, broadcasting or electronic services.’;

               6.

               in Title XII, the heading of Chapter 6 shall be replaced by the following:

               ‘Special schemes for non-established taxable persons supplying telecommunications services, broadcasting services or electronic services to non-taxable persons.’;

               7.

               Article 357 shall be deleted;

               8

               Article 358 shall be replaced by the following:
               ‘Article 358
               For the purposes of this Chapter, and without prejudice to other Community provisions, the following definitions shall apply:

                           1.

                           “telecommunications services” and “broadcasting services” mean the services referred to in points (a) and (b) of the first paragraph of Article 58;

                           2.

                           “electronic services” and “electronically supplied services” mean the services referred to in point (c) of the first paragraph of Article 58;

                           3

                           “Member State of consumption” means the Member State in which the supply of the telecommunications, broadcasting or electronic services is deemed to take place according to Article 58;

                           4.

                           “VAT return” means the statement containing the information necessary to establish the amount of VAT due in each Member State.’;

               9.

               in Chapter 6 of Title XII, the heading of Section 2 shall be replaced by the following:

               ‘Special scheme for telecommunications, broadcasting or electronic services supplied by taxable persons not established within the Community’;

               10.

               in Section 2 of Chapter 6 of Title XII, the following Article shall be inserted:
               ‘Article 358a
               For the purposes of this Section, and without prejudice to other Community provisions, the following definitions shall apply:

                           1.

                           “taxable person not established within the Community” means a taxable person who has not established his business in the territory of the Community and who has no fixed establishment there and who is not otherwise required to be identified for VAT purposes;

                           2.

                           “Member State of identification” means the Member State which the taxable person not established within the Community chooses to contact to state when his activity as a taxable person within the territory of the Community commences in accordance with the provisions of this Section.’;

               11.

               Articles 359 to 365 shall be replaced by the following:
               ‘Article 359
               Member States shall permit any taxable person not established within the Community supplying telecommunications, broadcasting or electronic services to a non-taxable person who is established in a Member State or has his permanent address or usually resides in a Member State, to use this special scheme. This scheme applies to all those services supplied within the Community.
               Article 360
               The taxable person not established within the Community shall state to the Member State of identification when he commences or ceases his activity as a taxable person, or changes that activity in such a way that he no longer meets the conditions necessary for use of this special scheme. He shall communicate that information electronically.
               Article 361
               1.   The information which the taxable person not established within the Community must provide to the Member State of identification when he commences a taxable activity shall contain the following details:

                           (a)

                           name;

                           (b)

                           postal address;

                           (c)

                           electronic addresses, including websites;

                           (d)

                           national tax number, if any;

                           (e)

                           a statement that the person is not identified for VAT purposes within the Community.

                     2.   The taxable person not established within in the Community shall notify the Member State of identification of any changes in the information provided.
               Article 362
               The Member State of identification shall allocate to the taxable person not established within the Community an individual VAT identification number and shall notify him of that number by electronic means. On the basis of the information used for that identification, Member States of consumption may have recourse to their own identification systems.
               Article 363
               The Member State of identification shall delete the taxable person not established within the Community from the identification register in the following cases:

                           (a)

                           if he notifies that Member State that he no longer supplies telecommunications, broadcasting or electronic services;

                           (b)

                           if it may otherwise be assumed that his taxable activities have ceased;

                           (c)

                           if he no longer meets the conditions necessary for use of this special scheme;

                           (d)

                           if he persistently fails to comply with the rules relating to this special scheme.

                     Article 364
               The taxable person not established within the Community shall submit by electronic means to the Member State of identification a VAT return for each calendar quarter, whether or not telecommunications, broadcasting or electronic services have been supplied. The VAT return shall be submitted within 20 days following the end of the tax period covered by the return.
               Article 365
               The VAT return shall show the identification number and, for each Member State of consumption in which VAT is due, the total value, exclusive of VAT, of supplies of telecommunications, broadcasting and electronic services carried out during the tax period and total amount per rate of the corresponding VAT. The applicable rates of VAT and the total VAT due must also be indicated on the return.’;

               12.

               Article 366(1) shall be replaced by the following:
               ‘1.   The VAT return shall be made out in euro.
               Member States which have not adopted the euro may require the VAT return to be made out in their national currency. If the supplies have been made in other currencies, the taxable person not established within the Community shall, for the purposes of completing the VAT return, use the exchange rate applying on the last day of the tax period.’;

               13.

               Articles 367 and 368 shall be replaced by the following:
               ‘Article 367
               The taxable person not established within the Community shall pay the VAT, making reference to the relevant VAT return, when submitting the VAT return, at the latest, however, at the expiry of the deadline by which the return must be submitted.
               Payment shall be made to a bank account denominated in euro, designated by the Member State of identification. Member States which have not adopted the euro may require the payment to be made to a bank account denominated in their own currency.
               Article 368
               The taxable person not established within the Community making use of this special scheme may not deduct VAT pursuant to Article 168 of this Directive. Notwithstanding Article 1(1) of Directive 86/560/EEC, the taxable person in question shall be refunded in accordance with the said Directive. Articles 2(2) and (3) and Article 4(2) of Directive 86/560/EEC shall not apply to refunds relating to telecommunications, broadcasting or electronic services covered by this special scheme.’;

               14.

               Article 369(1) shall be replaced by the following:
               ‘1.   The taxable person not established within the Community shall keep records of the transactions covered by this special scheme. Those records must be sufficiently detailed to enable the tax authorities of the Member State of consumption to verify that the VAT return is correct.’;

               15.

               in Chapter 6 of Title XII, the following Section shall be inserted:
               ‘Section 3
               Special scheme for telecommunications, broadcasting or electronic services supplied by taxable persons established within the Community but not in the Member State of consumption
               Article 369a
               For the purposes of this Section, and without prejudice to other Community provisions, the following definitions shall apply:

                           1.

                           “taxable person not established in the Member State of consumption” means a taxable person who has established his business in the territory of the Community or has a fixed establishment there but has not established his business and has no fixed establishment within the territory of the Member State of consumption;

                           2.

                           “Member State of identification” means the Member State in the territory of which the taxable person has established his business or, if he has not established his business in the Community, where he has a fixed establishment.

                     Where a taxable person has not established his business in the Community, but has more than one fixed establishment therein, the Member State of identification shall be the Member State with a fixed establishment where that taxable person indicates that he will make use of this special scheme. The taxable person shall be bound by this decision for the calendar year concerned and the two calendar years following.
               Article 369b
               Member States shall permit any taxable person not established in the Member State of consumption supplying telecommunications, broadcasting or electronic services to a non-taxable person who is established or has his permanent address or usually resides in that Member State, to use this special scheme. This special scheme applies to all those services supplied in the Community.
               Article 369c
               The taxable person not established in the Member State of consumption shall state to the Member State of identification when he commences and ceases his taxable activities covered by this special scheme, or changes those activities in such a way that he no longer meets the conditions necessary for use of this special scheme. He shall communicate that information electronically.
               Article 369d
               A taxable person making use of this special scheme shall, for the taxable transactions carried out under this scheme, be identified for VAT purposes in the Member State of identification only. For that purpose the Member State shall use the individual VAT identification number already allocated to the taxable person in respect of his obligations under the internal system.
               On the basis of the information used for that identification, Member States of consumption may have recourse to their own identification systems.
               Article 369e
               The Member State of identification shall exclude the taxable person not established in the Member State of consumption from this special scheme in any of the following cases:

                           (a)

                           if he notifies that he no longer supplies telecommunications, broadcasting or electronic services;

                           (b)

                           if it may otherwise be assumed that his taxable activities covered by this special scheme have ceased;

                           (c)

                           if he no longer meets the conditions necessary for use of this special scheme;

                           (d)

                           if he persistently fails to comply with the rules relating to this special scheme.

                     Article 369f
               The taxable person not established in the Member State of consumption shall submit by electronic means to the Member State of identification a VAT return for each calendar quarter, whether or not telecommunications, broadcasting or electronic services have been supplied. The VAT return shall be submitted within 20 days following the end of the tax period covered by the return.
               Article 369g
               The VAT return shall show the identification number referred to in Article 369d and, for each Member State of consumption in which VAT is due, the total value, exclusive of VAT, of supplies of telecommunications, broadcasting or electronic services carried out during the tax period and the total amount per rate of the corresponding VAT. The applicable rates of VAT and the total VAT due must also be indicated on the return.
               Where the taxable person has one or more fixed establishments, other than that in the Member State of identification, from which the services are supplied, the VAT return shall in addition to the information referred to in the first paragraph include the total value of supplies of telecommunications, broadcasting or electronic services covered by this special scheme, for each Member State in which he has an establishment, together with the individual VAT identification number or the tax reference number of this establishment, broken down by Member State of consumption.
               Article 369h
               1.   The VAT return shall be made out in euro.
               Member States which have not adopted the euro may require the VAT return to be made out in their national currency. If the supplies have been made in other currencies, the taxable person not established in the Member State of consumption shall, for the purposes of completing the VAT return, use the exchange rate applying on the last date of the tax period.
               2.   The conversion shall be made by applying the exchange rates published by the European Central Bank for that day, or, if there is no publication on that day, on the next day of publication.
               Article 369i
               The taxable person not established in the Member State of consumption shall pay the VAT, making reference to the relevant VAT return, when submitting the VAT return, at the latest, however, at the expiry of the deadline by which the return must be submitted.
               Payment shall be made to a bank account denominated in euro, designated by the Member State of identification. Member States which have not adopted the euro may require the payment to be made to a bank account denominated in their own currency.
               Article 369j
               The taxable person not established in the Member State of consumption making use of this special scheme may not, in respect of his taxable activities covered by this scheme, deduct VAT pursuant to Article 168 of this Directive. Notwithstanding Article 2(1) and Article 3 of Directive 2008/9/EC, the taxable person in question shall be refunded in accordance with the said Directive.
               If the taxable person not established in the Member State of consumption making use of this special scheme also carries out in the Member State of consumption activities not covered by this scheme in respect of which he is obliged to be registered for VAT purposes, he shall deduct VAT in respect of his taxable activities which are covered by this scheme in the VAT return to be submitted pursuant to Article 250.
               Article 369k
               1.   The taxable person not established in the Member State of consumption shall keep records of the transactions covered by this special scheme. Those records must be sufficiently detailed to enable the tax authorities of the Member State of consumption to verify that the VAT return is correct.
               2.   The records referred to in paragraph 1 must be made available electronically on request to the Member State of consumption and to the Member State of identification.
               Those records must be kept for a period of 10 years from 31 December of the year during which the transaction was carried out.’;

               16.

               in Annex II, the heading shall be replaced by the following:
               ‘INDICATIVE LIST OF THE ELECTRONICALLY SUPPLIED SERVICES REFERRED TO IN POINT (C) OF THE FIRST PARAGRAPH OF ARTICLE 58’.

         Article 6
   The Commission shall, by 31 December 2014, submit a report on the feasibility of applying efficiently the rule laid down in Article 5 for the supply of telecommunications services, radio and television broadcasting services and electronically supplied services to non-taxable persons and on the question whether that rule still corresponds to the general policy at that time concerning the place of supply of services.
   Article 7
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 1 to 5 of this Directive from the respective dates provided for in those provisions.
   They shall forthwith inform the Commission thereof. When Member States adopt these provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 8
   This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
   Article 9
   This Directive is addressed to the Member States.

      Done at Brussels, 12 February 2008.

            For the Council

            The President

         A. BAJUK

      (1)  OJ C 104 E, 30.4.2004, p. 143 and opinion delivered on 16 May 2006 (not yet published in the Official Journal).

      (2)  OJ C 117, 30.4.2004, p. 15 and OJ C 195, 18.8.2006, p. 54.

      (3)  OJ L 347, 11.12.2006, p. 1. Directive as last amended by Directive 2007/75/EC (OJ L 346, 29.12.2007, p. 13).

      (4)  OJ C 321, 31.12.2003, p. 1.

      (5)  Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory (OJ L 326, 21.11.1986, p. 40).

      (6)  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).’;


title: Commission Directive 2012/22/EU of 22 August 2012 amending Directive 98/8/EC of the European Parliament and of the Council to include DDACarbonate as an active substance in Annex I thereto  Text with EEA relevance

text:
               23.8.2012

               EN

               Official Journal of the European Union

               L 227/7

         COMMISSION DIRECTIVE 2012/22/EU
   of 22 August 2012
   amending Directive 98/8/EC of the European Parliament and of the Council to include DDACarbonate as an active substance in Annex I thereto
   (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (1), and in particular Article 11(4) thereof,
   Whereas:

               (1)

               The United Kingdom received on 17 January 2007 an application from Lonza, in accordance with Article 11(1) of Directive 98/8/EC, for the inclusion of the active substance DDACarbonate in Annex I to that Directive for use in product type 8, wood preservatives, as defined in Annex V to Directive 98/8/EC. DDACarbonate was not on the market on the date referred to in Article 34(1) of Directive 98/8/EC as an active substance of a biocidal product.

               (2)

               After carrying out an evaluation, the United Kingdom submitted its report, together with a recommendation, to the Commission on 11 November 2010.

               (3)

               The report was reviewed by the Member States and the Commission within the Standing Committee on Biocidal Products on 2 March 2012, and the findings of the review were incorporated in an assessment report.

               (4)

               It appears from the evaluations that biocidal products used as wood preservatives and containing DDACarbonate may be expected to satisfy the requirements laid down in Article 5 of Directive 98/8/EC. It is therefore appropriate to include DDACarbonate for use in product type 8 in Annex I to that Directive.

               (5)

               Not all potential uses have been evaluated at Union level. For example, use by non-professional users was not assessed. It is therefore appropriate to require that Member States assess those uses or exposure scenarios and those risks to human populations and to environmental compartments that have not been representatively addressed in the Union level risk assessment and, when granting product authorisations, ensure that appropriate measures are taken or specific conditions imposed in order to reduce the identified risks to acceptable levels.

               (6)

               In view of the risks identified for human health, for industrial users it is appropriate to require that safe operational procedures are established, and that products are used with appropriate personal protective equipment, unless it can be demonstrated in the application for product authorisation that risks can be reduced to an acceptable level by other means.

               (7)

               In view of the risks identified for the aquatic and terrestrial compartments, it is appropriate to require that industrial application is conducted within a contained area or on impermeable hard standing with bunding, that freshly treated timber is stored after treatment under shelter or on impermeable hard standing, or both, and that any losses from the application of products used as wood preservatives and containing DDACarbonate are collected for reuse or disposal.

               (8)

               Unacceptable risks for the environment were identified for situations where wood treated by dipping with DDACarbonate was continually exposed to the weather or subject to frequent wetting (use class 3 as defined by OECD (2)), and where wood treated with DDACarbonate was used for outdoor constructions near or above water (the ‘bridge’ scenario in use class 3, as defined by OECD (3)) or was in contact with fresh water (use class 4b as defined by OECD (4)). It is therefore appropriate to require that products are not authorised for the treatment of wood intended for those uses, unless data is submitted demonstrating that the product will meet the requirements of both Article 5 of and Annex VI to Directive 98/8/EC, if necessary by the application of appropriate risk mitigation measures.

               (9)

               The provisions of this Directive should be applied simultaneously in all Member States in order to ensure equal treatment on the Union market of biocidal products of product type 8 containing the active substance DDACarbonate and also to facilitate the proper operation of the biocidal products market in general.

               (10)

               A reasonable period should be allowed to elapse before an active substance is included in Annex I to Directive 98/8/EC in order to permit Member States to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive.

               (11)

               Directive 98/8/EC should therefore be amended accordingly.

               (12)

               The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on Biocidal Products,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Annex I to Directive 98/8/EC is amended in accordance with the Annex to this Directive.
   Article 2
   1.   Member States shall adopt and publish, by 31 January 2013 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive.
   They shall apply those provisions from 1 February 2013.
   When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 3
   This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 22 August 2012.

            For the Commission

            The President

         José Manuel BARROSO

      (1)  OJ L 123, 24.4.1998, p. 1.

      (2)  OECD series on emission scenario documents, Number 2, Emission Scenario Document for Wood Preservatives, Part 2, p. 64.

      (3)  Ibid.

      (4)  Ibid.

      ANNEX
      In Annex I to Directive 98/8/EC, the following entry is added:

                     No

                     Common Name

                     IUPAC Name
                     Identification Numbers

                     Minimum purity of the active substance in the biocidal product as placed on the market

                     Date of inclusion

                     Deadline for compliance with Article 16(3) (except for products containing more than one active substance, for which the deadline to comply with Article 16(3) shall be the one set out in the last of the inclusion decisions relating to its active substances)

                     Expiry date of inclusion

                     Product type

                     Specific provisions (1)

                     ‘58

                     DDACarbonate

                     Reaction mass of N,N-Didecyl-N,N-dimethylammonium Carbonate and N,N-Didecyl-N,N-dimethylammonium Bicarbonate
                     EC No: 451-900-9
                     CAS No: 894406-76-9

                     Dry weight: 740 g/kg

                     1 February 2013

                     Not applicable

                     31 January 2023

                     8

                     The Union level risk assessment did not address all potential uses; certain uses, such as use by non-professionals, were excluded. When assessing the application for authorisation of a product in accordance with Article 5 and Annex VI, Member States shall assess, where relevant for the particular product, those uses or exposure scenarios and those risks to human populations and to environmental compartments that have not been representatively addressed in the Union level risk assessment.
                     Member States shall ensure that authorisations are subject to the following conditions:

                                 (1)

                                 for industrial users safe operational procedures shall be established, and products shall be used with appropriate personal protective equipment, unless it can be demonstrated in the application for product authorisation that risks can be reduced to an acceptable level by other means;

                                 (2)

                                 labels and, where provided, safety data sheets of products authorised shall indicate that industrial application shall be conducted within a contained area or on impermeable hard standing with bunding, that freshly treated timber shall be stored after treatment under shelter or on impermeable hard standing, or both, to prevent direct losses to soil or water, and that any losses from the application of the product shall be collected for reuse or disposal;

                                 (3)

                                 products shall not be authorised for treatment of wood that will be in contact with fresh water or used for outdoor constructions near or above water, or for treatment by dipping of wood that will be continually exposed to the weather or subject to frequent wetting, unless data is submitted to demonstrate that the product will meet the requirements of Article 5 and Annex VI, if necessary by the application of appropriate mitigation measures.’

         (1)  For the implementation of the common principles of Annex VI, the content and conclusions of assessment reports are available on the Commission website: http://ec.europa.eu/comm/environment/biocides/index.htm


title: Directive 2006/22/EC of the European Parliament and of the Council of  15 March 2006  on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC   (Text with EEA relevance) - Declarations

text:
               11.4.2006

               EN

               Official Journal of the European Union

               L 102/35

      DIRECTIVE 2006/22/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 15 March 2006
   on minimum conditions for the implementation of
   Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85
   concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 71(1) thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   After consulting the Committee of the Regions,
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), in the light of the joint text approved by the Conciliation Committee on 8 December 2005,
   Whereas:

               (1)

               Council Regulations (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (3) and (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (4) and Directive 2002/15/EC of the European Parliament and the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (5) are important for the creation of a common market for inland transport services, for road safety and for working conditions.

               (2)

               In its White Paper ‘European transport policy for 2010: time to decide’, the Commission indicated the need to tighten up checks and sanctions particularly for social legislation on road transport activities, and specifically to increase the number of checks, to encourage the systematic exchange of information between Member States, to coordinate inspection activities and to promote the training of enforcement officers.

               (3)

               It is therefore necessary to ensure proper application and harmonised interpretation of the social rules on road transport through the establishment of minimum requirements for the uniform and effective checking by the Member States of compliance with the relevant provisions. Those checks should serve to reduce and prevent infringements. Furthermore, a mechanism should be introduced which ensures that undertakings with a high risk rating are checked more closely and more often.

               (4)

               The risks arising from driver fatigue should also be addressed through enforcement of Directive 2002/15/EC.

               (5)

               The measures provided for in this Directive should not only lead to greater road safety but should also contribute to a harmonisation of working conditions in the Community and promote a level playing field.

               (6)

               The replacement of analogue tachographs by digital tachographs will progressively enable a greater volume of data to be checked more swiftly and more precisely and, for that reason, Member States will be increasingly able to undertake more checks. In terms of checks, the percentage of days worked by drivers of vehicles falling within the scope of the social legislation that are checked should therefore be gradually increased to 4 %.

               (7)

               As regards checking systems, the aim must be that national systems develop towards European interoperability and practicability.

               (8)

               Sufficient standard equipment and appropriate legal powers should be available to all enforcement units to enable them to carry out their duties effectively and efficiently.

               (9)

               Member States should seek to ensure, without prejudice to the proper execution of the tasks imposed by this Directive, that roadside checks are executed efficiently and quickly, with a view to completing the check in the shortest time possible and with the least delay for the driver.

               (10)

               Within each Member State there should be a single body for intracommunity liaison with other relevant competent authorities. That body should also compile relevant statistics. Member States should also apply a coherent national enforcement strategy on their territory and may designate a single body to coordinate its implementation.

               (11)

               Cooperation between Member State enforcement authorities should be further promoted through concerted checks, joint training initiatives, the electronic exchange of information, and the exchange of intelligence and experience.

               (12)

               Best practice in road transport enforcement operations, particularly to ensure a harmonised approach to the issue of proof of a driver's annual leave or sick leave, should be facilitated and promoted through a forum for Member State enforcement authorities.

               (13)

               The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6).

               (14)

               Since the objective of this Directive, namely to lay down clear, common rules on minimum conditions for checking the correct and uniform implementation of Regulations (EEC) No 3820/85 and (EEC) No 3821/85 and Regulation (EC) No 561/2006 of 15 March 2006 of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (7), cannot be sufficiently achieved by the Member States and can, by reason of the need for coordinated transnational action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

               (15)

               Council Directive 88/599/EEC (8) on standard checking procedures for the implementation of Regulations (EEC) No 3820/85 and (EEC) No 3821/85should therefore be repealed,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject-matter
   This Directive lays down minimum conditions for the implementation of Regulations (EEC) No 3820/85 and (EEC) No 3821/85.
   Article 2
   Checking systems
   1.   Member States shall organise a system of appropriate and regular checks on correct and consistent implementation, as referred to in Article 1, both at the roadside and at premises of undertakings of all transport categories.
   These checks shall cover each year a large and representative cross-section of mobile workers, drivers, undertakings and vehicles of all transport categories falling within the scope of Regulations (EEC) No 3820/85 and (EEC) No 3821/85.
   Member States shall ensure that a coherent national enforcement strategy is applied on their territory. For this purpose, Member States may designate a body for the coordination of actions taken under Articles 4 and 6, in which case the Commission and the other Member States shall be informed thereof.
   2.   In so far as this is not already the case, Member States shall, not later than 1 May 2007, provide authorised inspecting officers with appropriate legal powers to enable them correctly to discharge their inspection obligations as required by this Directive.
   3.   Each Member State shall organise checks in such a way that, as from 1 May 2006, 1 % of days worked by drivers of vehicles falling within the scope of Regulations (EEC) No 3820/85 and (EEC) No 3821/85 are checked. This percentage will increase to at least 2 % from 1 January 2008 and to at least 3 % from 1 January 2010.
   From 1 January 2012 this minimum percentage may be increased to 4 % by the Commission, in accordance with the procedure referred to in Article 12(2), provided that the statistics collected pursuant to Article 3 show that, on average, more than 90 % of all vehicles checked are equipped with a digital tachograph. In making its decision, the Commission shall also take into account the effectiveness of existing enforcement measures, in particular the availability of digital tachograph data at the premises of undertakings.
   Not less than 15 % of the total number of the working days checked shall be checked at the roadside and not less than 30 % at the premises of undertakings. From 1 January 2008 not less than 30 % of the total number of the working days checked shall be checked at the roadside and not less than 50 % shall be checked at the premises of undertakings.
   4.   The information submitted to the Commission in accordance with Article 16(2) of Regulation (EEC) No 3820/85 shall include the number of drivers checked at the roadside, the number of checks at the premises of undertakings, the number of working days checked and the number and type of infringements reported, together with a record of whether passengers or goods were transported.
   Article 3
   Statistics
   Member States shall ensure that statistics collected from the checks organised in accordance with Article 2(1) and (3) are broken down into the following categories:

               (a)

               for roadside checks:

                           (i)

                           type of road, namely whether it is a motorway, a national or a secondary road, and country of registration of the vehicle inspected, in order to avoid discrimination;

                           (ii)

                           type of tachograph: analogue or digital;

               (b)

               for checks at the premises:

                           (i)

                           type of transport activity, namely whether the activity is international or domestic, passenger or freight, own account or for hire or reward;

                           (ii)

                           size of company fleet;

                           (iii)

                           type of tachograph: analogue or digital.

         These statistics shall be submitted biennially to the Commission and shall be published in a report.
   The competent authorities in the Member States shall keep a record of the data collected for the previous year.
   Undertakings responsible for drivers shall keep, for a period of one year, the documents, records of results and other relevant data passed to them by the enforcement authorities concerning checks carried out on them at their premises and/or on their drivers at the roadside.
   Any further clarification required of the definitions of the categories mentioned under (a) and (b) shall be established by the Commission, in accordance with the procedure referred to in Article 12(2).
   Article 4
   Roadside checks
   1.   Roadside checks shall be organised in various places and at any time and shall cover a sufficiently extensive part of the road network to make it difficult to avoid checkpoints.
   2.   Member States shall ensure that:

               (a)

               sufficient provision is made for checkpoints on or nearby existing and planned roads and, if necessary, that service stations and other safe locations along motorways can function as checkpoints;

               (b)

               checks are carried out following a random rotation system, with an appropriate geographical balance.

         3.   The points to be verified at roadside checks are set out in Part A of Annex I. Checks may focus on a specific point if the situation so requires.
   4.   Without prejudice to Article 9(2), roadside checks shall be carried out without discrimination. In particular, enforcement officers shall not discriminate on any of the following grounds:

               (a)

               country of registration of vehicle;

               (b)

               country of residence of driver;

               (c)

               country of establishment of undertaking;

               (d)

               origin and destination of journey;

               (e)

               type of tachograph: analogue or digital.

         5.   Enforcement officers shall be provided with:

               (a)

               a list of the principal points to be checked, as set out in Part A of Annex I;

               (b)

               standard checking equipment, as set out in Annex II.

         6.   If, in a Member State, the findings of a roadside check on the driver of a vehicle registered in another Member State afford grounds for believing that infringements have been committed which cannot be established during the check owing to a lack of necessary data, the competent authorities of the Member States concerned shall assist each other in clarifying the situation.
   Article 5
   Concerted checks
   Member States shall, at least six times per year, undertake concerted roadside checks on drivers and vehicles falling within the scope of Regulations (EEC) No 3820/85 and (EEC) No 3821/85. Such checks shall be undertaken at the same time by the enforcement authorities of two or more Member States, each operating in its own territory.
   Article 6
   Checks at the premises of undertakings
   1.   Checks at premises shall be planned in the light of past experience in relation to the various types of transport and undertakings. They shall also be carried out if serious infringements of Regulations (EEC) No 3820/85 or (EEC) No 3821/85 have been detected at the roadside.
   2.   Checks at premises shall cover the points listed in Part A and Part B of Annex I.
   3.   Enforcement officers shall be provided with:

               (a)

               a list of the principal points to be checked, as set out in Parts A and B of Annex I;

               (b)

               standard checking equipment, as set out in Annex II.

         4.   Enforcement officers in a Member State shall, in the course of the check take into account any information provided by the designated liaison body of another Member State, as referred to in Article 7(1), concerning the activities of the undertaking in question in that other Member State.
   5.   For the purposes of paragraphs 1 to 4, checks carried out at the premises of the competent authorities, on the basis of relevant documents or data handed over by undertakings at the request of the said authorities, shall have the same status as checks carried out at the premises of undertakings.
   Article 7
   Intracommunity liaison
   1.   Member States shall designate a body which shall have the following tasks:

               (a)

               to ensure coordination with equivalent bodies in the other Member States concerned as regards actions taken under Article 5;

               (b)

               to forward the biennial statistical returns to the Commission under Article 16(2) of Regulation (EEC) No 3820/85;

               (c)

               to be primarily responsible for assisting the competent authorities of other Member States pursuant to Article 4(6).

         The body shall be represented on the Committee referred to in Article 12(1).
   2.   Member States shall notify the Commission of the designation of this body and the Commission shall advise the other Member States accordingly.
   3.   The exchange of data, of experience and of intelligence between Member States shall be actively promoted, primarily but not exclusively through the Committee referred to in Article 12(1) and any such body as the Commission may designate in accordance with the procedure referred to in Article 12(2).
   Article 8
   Exchange of information
   1.   Information made available bilaterally under Article 17(3) of Regulation (EEC) No 3820/85 or Article 19(3) of Regulation (EEC) No 3821/85 shall be exchanged between the designated bodies notified to the Commission in accordance with Article 7(2):

               (a)

               at least once every six months after the entry into force of this Directive;

               (b)

               upon specific request by a Member State in individual cases.

         2.   Member States shall seek to establish systems for the electronic exchange of information. In accordance with the procedure referred to in Article 12(2), the Commission shall define a common methodology for effective information exchange.
   Article 9
   Risk rating system
   1.   Member States shall introduce a risk rating system for undertakings based on the relative number and severity of any infringements of Regulations (EEC) No 3820/85 or (EEC) No 3821/85 that an individual undertaking has committed. The Commission shall support dialogue between Member States to encourage consistency between these risk rating systems.
   2.   Undertakings with a high risk rating shall be checked more closely and more often. The criteria and detailed rules for implementing such a system shall be discussed in the Committee referred to in Article 12, with a view to establishing a system for the exchange of information on best practices.
   3.   An initial list of infringements of Regulation (EEC) No 3820/85 and (EEC) No 3821/85 is set out in Annex III.
   With a view to giving guidelines on the weighting of infringements of Regulations (EEC) No 3820/85 and (EEC) No 3821/85, the Commission may, as appropriate, in accordance with the procedure referred to in Article 12(2), adapt Annex III with a view to establishing guidelines on a common range of infringements, divided into categories according to their gravity.
   The category for the most serious infringements should include those where failure to comply with the relevant provisions of Regulations (EEC) No 3820/85 and (EEC) No 3821/85 create a serious risk of death or serious personal injury.
   Article 10
   Report
   By 1 May 2009 the Commission shall submit to the European Parliament and to the Council a report analysing the penalties for serious infringements provided for in the legislation of the Member States.
   Article 11
   Best practice
   1.   In accordance with the procedure referred to in Article 12(2), the Commission shall establish guidelines on best enforcement practice.
   Those guidelines shall be published in a biennial report of the Commission.
   2.   Member States shall establish joint training programmes on best practice to be held at least once per year and shall facilitate exchanges, at least once per year, of staff of their respective bodies for intracommunity liaison with their counterparts in other Member States.
   3.   An electronic and printable form shall be drawn up by the Commission in accordance with the procedure referred to in Article 12(2), to be used when a driver has been on sick leave or on annual leave, or when the driver has driven another vehicle exempted from the scope of Regulation (EEC) No 3820/85, during the period mentioned in the first indent of the first subparagraph of Article 15(7) of Regulation (EEC) No 3821/85.
   4.   Member States shall ensure that enforcement officers are well trained for the execution of their tasks.
   Article 12
   Committee procedure
   1.   The Commission shall be assisted by the Committee set up by Article 18(1) of Regulation (EEC) No 3821/85.
   2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
   The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.
   3.   The Committee shall adopt its Rules of Procedure.
   Article 13
   Implementing measures
   At the request of a Member State or on its own initiative the Commission shall, in accordance with the procedure referred to in Article 12(2), adopt implementing measures in particular with one of the following aims:

               (a)

               to promote a common approach to the implementation of this Directive;

               (b)

               to encourage a coherence of approach between enforcement authorities and a harmonised interpretation of Regulation (EEC) No 3820/85 between enforcement authorities;

               (c)

               to facilitate dialogue between the transport sector and enforcement authorities.

         Article 14
   Negotiations with third countries
   Once this Directive has entered into force, the Community shall begin negotiations with the relevant third countries with a view to the application of rules equivalent to those laid down in this Directive.
   Pending the conclusion of these negotiations, Member States shall include data on checks carried out on vehicles from third countries in their returns to the Commission as set out in Article 16(2) of Regulation (EEC) No 3820/85.
   Article 15
   Updating of the Annexes
   Amendments to the Annexes which are necessary to adapt them to developments in best practice shall be adopted in accordance with the procedure referred to in Article 12(2).
   Article 16
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 April 2007. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field governed by this Directive.
   Article 17
   Repeal
   1.   Directive 88/599/EEC is hereby repealed.
   2.   References made to the repealed Directive shall be construed as being made to this Directive.
   Article 18
   Entry into force
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

   Article 19
   Addressees
   This Directive is addressed to the Member States.

      Done at Strasbourg, 15 March 2006.

            For the European Parliament

            The President

         J. BORRELL FONTELLES

            For the Council

            The President

         H. WINKLER

      (1)  OJ C 241, 28.9.2004, p. 65.

      (2)  Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004, p. 385), Council Common Position of 9 December 2004 (OJ C 63 E, 15.3.2005, p. 1) and Position of the European Parliament of 13 April 2005 (OJ C 33 E, 9.2.2006, p. 415). Legislative resolution of the European Parliament of 2 February 2006 and Decision of the Council of 2 February 2006.

      (3)  OJ L 370, 31.12.1985, p. 1. Regulation as amended by Directive 2003/59/EC of the European Parliament and of the Council (OJ L 226, 10.9.2003, p. 4).

      (4)  OJ L 370, 31.12.1985, p. 8. Regulation as last amended by Commission Regulation (EC) No 432/2004 (OJ L 71, 10.3.2004, p. 3).

      (5)  OJ L 80, 23.3.2002, p. 35.

      (6)  OJ L 184, 17.7.1999, p. 23.

      (7)  See OJ L 102, 11.4.2006, p. 1.

      (8)  OJ L 325, 29.11.1988, p. 55. Directive as amended by Regulation (EC) No 2135/98 (OJ L 274, 9.10.1998, p. 1).

      ANNEX I
      PART A
      ROADSIDE CHECKS
      The following points shall, in general, be covered by roadside checks:

                  (1)

                  daily and weekly driving times, breaks and daily and weekly rest periods; also the preceding days' record sheets which have to be carried on board the vehicle in accordance with Article 15(7) of Regulation (EEC) No 3821/85 and/or the data stored for the same period on the driver card and/or in the memory of the recording equipment in accordance with Annex ΙΙ to this Directive and/or on printouts;

                  (2)

                  for the period referred to in Article 15(7) of Regulation (EEC) No 3821/85, any cases where the vehicle's authorised speed is exceeded, to be defined as being any periods of more than one minute during which the vehicle's speed exceeds 90 km/h for category N3 vehicles or 105 km/h for category M3 vehicles (categories N3 and M3 being defined in Annex II, Part A to Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (1);

                  (3)

                  where appropriate, momentary speeds attained by the vehicle as recorded by the recording equipment in no more than the previous 24 hours' use of the vehicle;

                  (4)

                  the correct functioning of the recording equipment (determination of possible misuse of the equipment and/or the driver card and/or record sheets) or, where appropriate, presence of the documents referred to in Article 14(5) of Regulation (EEC) No 3820/85.

            PART B
      CHECKS AT THE PREMISES OF UNDERTAKINGS
      The following points shall be checked at the premises of undertakings, in addition to those set out in Part A:

                  (1)

                  weekly rest periods and driving times between these rest periods;

                  (2)

                  observance of the two-weekly limitation of driving times;

                  (3)

                  record sheets, vehicle unit and driver card data and printouts.

            Member States may, if appropriate, check on the joint liability of other instigators or accessories in the transport chain, such as shippers, freight forwarders or contractors, if an infringement is detected, including verification that contracts for the provision of transport permit compliance with Regulations (EEC) No 3820/85 and (EEC) No 3821/85.

         (1)  OJ L 42, 23.2.1970, p. 1. Directive as last amended by Commission Directive 2006/28/EC (OJ L 65, 7.3.2006, p. 27).

      ANNEX II
      Standard equipment to be available to enforcement units
      Member States shall ensure that the following standard equipment is available to enforcement units carrying out the duties set out in Annex I:

                  (1)

                  equipment capable of downloading data from the vehicle unit and driver card of the digital tachograph, reading data, and analysing data and/or transmitting findings to a central database for analysis;

                  (2)

                  equipment to check the tachograph sheets.

      ANNEX III
      Infringements
      In accordance with Article 9(3), for the purposes of this Directive, the following non-exhaustive list gives guidance on what is to be regarded as an infringement:

                  (1)

                  exceeding the maximum daily, weekly or fortnightly driving times;

                  (2)

                  disregarding the minimum daily or weekly rest period;

                  (3)

                  disregarding the minimum break;

                  (4)

                  failure to fit a tachograph in accordance with the requirements of Regulation (EEC) No 3821/85.

         STATEMENTS

      The Commission declares that in relation to the classification of serious infringements, its understanding is that serious infringements against the Regulation on the harmonisation of certain social legislation relating to road transport include the following:

                  1.

                  exceeding the maximum daily, six-day or fortnightly driving time limits by a margin of 20 % or more;

                  2.

                  disregarding the minimum daily or weekly rest period by a margin of 20 % or more;

                  3.

                  disregarding the minimum break by a margin of 33 % or more; and

                  4.

                  a tachograph not fitted in accordance with the requirements of Council (EEC) No Regulation 3821/85.

            The Commission and the Member States shall make every effort to ensure that, within two years of the entry into force of this Directive, the provisions of the AETR are aligned with the provisions of this Directive. If such an alignment has not been achieved within that period the Commission shall propose appropriate action to address the situation