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EUROPEAN COMMISSION
DIRECTORATE-GENERAL
TAXATION AND CUSTOMS UNION
Indirect Taxation and Tax administration
Value Added Tax
Group on the Future of VAT
28
th
meeting
11 November 2019
taxud.c.1(2019)7608582
EN
Brussels, 31 October 2019
G
ROUP ON THE
F
UTURE OF
VAT
GFV N
O
091
VAT special scheme for travel agents
Commission européenne, 1049 Bruxelles / Europese Commissie, 1049 Brussel
Belgium
— Tel.: +32 2 
299 11 11.
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1.
I
NTRODUCTION
When the Sixth VAT Directive
1
was adopted in 1977, a special scheme was introduced for
travel agencies and tour operators. This special VAT scheme, now set out in Articles 306 to
310 of the VAT Directive
2
, was brought in due to the special nature of the industry. The
services offered by travel agents usually consist of a package of services, in particular
transport and accommodation obtained from third parties. These packages are then sold by
travel agents, in their own name, to their customers. Those are circumstances where it is
particularly difficult to apply the normal rules on the place of taxation, the taxable amount and
deduction of input tax due to the complexity and location of the services provided.
Under Article 307 of the VAT Directive, all transactions performed by a travel agent in
respect of a journey are regarded as a single supply. The taxable amount is the profit margin
realised by the travel agent on the supply of a travel package and hence the travel agent is not
entitled to deduct input VAT. The place of taxation for the travel agent's supply is where he
has established his business or has a fixed establishment from which he provides the service
or, failing this, the place where he has his permanent address or usually resides.
The special VAT scheme has two aims:
(a) to simplify the application of EU VAT rules for these supplies, particularly so that a
travel agent avoids having to register for VAT purposes in each of the Member States
where the services acquired by the agent are performed;
(b) to ensure that VAT revenue goes to the Member State in which final consumption of each
individual component of the single supply takes place. VAT revenue on services enjoyed
in the course of the journey, such as hotels, restaurants or transport, will go to the
Member State in which the traveller receives the service, whereas VAT on the travel
agent’s
margin returns to the Member State where the agent is established.
2.
B
ACKGROUND
In practice, the special scheme for travel agents has never been applied uniformly by Member
States and this may well lead to double taxation, distortions of competition and unfair
distribution of VAT receipts among Member States.
Therefore, on 8 February 2002 the Commission adopted a proposal with a view to amend the
special scheme for travel agents
3
. The objective of this proposal was to:
allow travel agents to apply VAT to their profit margin for services sold to other travel
agents as well as to private individuals,
1
2
3
Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States
relating to turnover taxes
Common system of value-added tax: uniform basis of assessment (OJ L 145,
13.6.1977, 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),
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al31057
Proposal for a Council Directive amending Directive 77/388/EEC as regards the special scheme for travel
agents (COM(2002) 64 of 8.2.2002).
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include travel agents not established in the EU within the scope of the VAT system, when
selling package tours to customers established in the EU,
entitle travel agents to opt for application of the normal VAT system,
authorise travel agents to calculate a single profit margin for package tours provided over
a certain period.
The Commission did not accept demands to amend its proposal by introducing an exemption
for supplies to third-country established clients, as this would be contrary to one of the basic
principles of the EU VAT system whereby supplies of goods and services are taxed where the
consumption takes place. Therefore, the profit margin generated in the EU should be taxable
in the EU, where the supply of the travel agent is realised without it being exempt when the
customer is established outside the EU.
To this end, on 21 February 2003 the Commission amended its proposal
4
. The proposal as
amended (“the 2002/2003 proposal”) aimed at extending the simplified mechanism just
adopted for services provided electronically by suppliers not established in the European
Union to customers established in the EU (the then VOES) so that it would also cover
supplies under the special scheme for travel agents.
No agreement could be reached in the Council and the 2002/2003 proposal was finally
withdrawn in 2014, because it had become obsolete after a series of rulings of the Court of
Justice of the European Union (“CJEU”).
In 2017, DG TAXUD contracted a study analysing the functioning of the special scheme and
reviewing all relevant judgments by the CJEU. The study evaluated national VAT laws and in
that regard found that on a number of aspects, the vast majority of Member States are not
complying with the common EU rules. This was confirmed by rulings handed down by the
CJEU after publication of the study in the cases C-380/16
Commission v Germany
5
and C-
552/17
Alpenchalets Resorts
6
. Later rulings in the cases C-422/17
Skarpa Travel
7
and C-
388/18
B (Chiffre d’affaires du revendeur de véhicules d’occasion)
8
established further
discrepancies between the common EU rules and national legislation.
Following the results of the study and the evolving case law, Germany in collaboration with
DG TAXUD organised a FISCALIS 2020 workshop in Berlin in October 2018. The outcome
of that Workshop and the hesitation by Member States in implementing changes to national
VAT law, have resulted in the decision being taken to evaluate the special scheme under the
better regulation policy
9
. Evaluation is a process that gathers evidence to provide an objective
judgement of the performance of existing EU policies, legislation and spending programmes
4
5
6
7
8
9
Amended proposal for a Council Directive amending Directive 77/388/EEC as regards the special scheme
for travel agents and Proposal for a Regulation of the European Parliament and of the Council amending
Regulation (EEC) No 218/92 on administrative co-operation in the field of indirect taxation (VAT) as
regards additional measures regarding supplies of travel services (COM(2003) 78 final of 24.3.2003).
CJEU, judgment of 8 February 2018,
Commission v Germany,
C-380/16, EU:C:2018:76.
CJEU, judgment of 19 December 2018,
Alpenchalets Resorts,
C-552/17, EU:C:2018:1032.
CJEU, judgment of 19 December 2018,
Skarpa Travel,
C-422/17, EU:C:2018:1029.
CJEU, judgment of 29 July 2019,
B (Chiffre d’affaires du revendeur de véhicules d’occasion),
C-388/18,
EU:C:2019:642.
Better Regulation provides a range of tools to support evidence-based policymaking from initial
development of proposals, to transposition, implementation, evaluation and subsequent revision.
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(EU interventions or EU activities). It is a tool to help the Commission services learn about
the role played by EU interventions and assess their actual performance compared to initial
expectations. The evaluation of the special scheme could be followed by an impact
assessment of possible options for reform and eventually result in a legal initiative of the new
Commission.
The questions to Member States included in this document serve as a consultation of Member
States for evaluating the special scheme and for assessing certain general options for reform.
3.
I
NTERPRETATION OF THE COMMON
EU
RULES BY THE
CJEU
The special scheme derogates from normal VAT principles only in terms of place of supply,
taxable amount and deduction of input tax. Otherwise, the normal VAT rules must be applied:
The supply of travel services is not included in Annex III of the VAT Directive and can
therefore not benefit from a reduced rate of VAT (C-74/91
Commission v Germany
10
and
C-552/17
Alpenchalets).
The value of the margin must be considered in a manner consistent with normal valuation
provisions (C-149/01
First Choice Holidays
11
).
VAT payable must be calculated separately for each supply. Using a global or aggregated
basis is not permitted (C-189/11 et al.
Commission v Spain
12
and C-380/16
Commission v
Germany)
13
.
When a travel agent, subject to the special scheme receives a payment on account, VAT
is chargeable, in accordance with Article 65, on receipt of that payment on account (C-
422/17
Skarpa Travel).
The turnover of a travel agent (and not his margin) must be taken into account, when the
travel agent wants to benefit from exemption as a small business (C-388/18
B (Chiffre
d’affaires du revendeur de véhicules d’occasion)).
As the special scheme is an exception to the normal rules, it must be applied only to the extent
required to achieve its objectives:
Services supplied by the travel agent himself cannot fall within the special scheme (C-
557/11
Kozak
14
).
10
11
12
13
14
CJEU, judgment of 27 October 1992,
Commission v Germany,
C-74/91, EU:C:1992:409.
CJEU, judgment of 19 June 2003,
First Choice Holidays,
C-149/01, EU:C:2003:358.
CJEU, judgment of 26 September 2013,
Commission v Spain,
C-189/11, EU:C:2013:587.
In case C-380/16 (Commission v. Germany), the CJEU highlighted that the fact that the calculation of the
margin, as provided for in this Article 308, for sales in the B2C area may give rise to difficulties, as claimed
by Germany and the Netherlands, is not an exclusion criterion for this interpretation. Member States must
also apply the VAT Directive, even if they deem it to be improved (see, to that effect, judgment of 6 October
2005,
Commission v Spain,
C-204/03, EU:C:2005:588, paragraph 28), until the Union legislature decides,
where appropriate, to amend the content of the special scheme.
CJEU, judgment of 25 October 2012,
Kozak,
C-557/11, EU:C:2012:672
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Bought-in services should not be included in the special scheme where they are merely
ancillary to in-house services (C-308/96 and C-94/97
Madgett and Baldwin
15
).
A supply in isolation, which does not relate to a journey, is taxed under the normal rules
(C-31/10
Minerva Kulturreisen
16
).
The special scheme must be applied in a consistent manner in order to achieve its objectives:
The special scheme is not limited to travel agents and tour operators but must apply
equally to any person supplying travel under the circumstances envisaged (C-308/96 and
C-94/97
Madgett and Baldwin
and C-200/04
iSt
17
)
The status of the customer is not relevant in determining if the special scheme applies.
B2B and B2C supplies are therefore treated equally (C-189/11 et al.
Commission v Spain
and C-380/16
Commission v Germany
18
).
The special scheme applies both to single items and packages (C-163/91
Van Ginkel
19
and C-552/17
Alpenchalets
20
).
Whereas, after a series of rulings, the CJEU has arrived at a clear interpretation about supplies
by travel agents of accommodation or passenger transport in isolation, there might still be
some controversy about the possibility for travel agents to opt for taxation of B2B supplies
under the normal rules (opting-out possibility).
However, in case C-380/16
Commission v Germany,
the CJEU made clear that it is important
to ensure that the interpretation that best matches the objectives of the special scheme, which
is that B2B supplies are also covered, must be applied in a uniform manner by the Member
States. The CJEU also repeated that the two objectives of the special scheme, namely
15
16
17
18
19
20
CJEU, judgment of 22 October 1998,
Madgett and Baldwin,
C-308/96 and C-94/97, EU:C:1998:496.
CJEU, judgment of 9 December 2010,
Minerva Kulturreisen,
C-31/10, EU:C:2010:762
CJEU, judgment of 13 October 2005,
iSt,
C-200/04, EU:C:2005:608.
In case C-380/16
Commission v Germany,
the CJEU refused all arguments brought forward by Germany.
Germany took the view that the inclusion of B2B sales in the scope of the special scheme would lead to
considerable practical difficulties, affects the principle of neutrality of VAT for operators, distorts
competition and infringes the Charter of Fundamental Rights.
With regard to practical difficulties the CJEU recalled that the European Union legislature has just set up the
special scheme in order to deal with major practical difficulties for travel agents and that these difficulties
arise in relation to sales in both B2C and B2B. The CJEU added that it is important to ensure that the
interpretation that best matches the objective of the VAT Directive as set out in its judgments of
26 September 2013, in particular in the judgment in C-189/11 et al.
Commission v Spain,
EU:C:2013:587, is
applied in a uniform manner by the Member States.
CJEU, judgment of 12 November 1992,
Van Ginkel Waddinxveen,
C-163/91, EU:C:1992:435.
In case C-552/17
Alpenchalets
the CJEU stated that the exclusion from the field of application of
Article 306 of the VAT Directive of services supplied by a travel agent on the sole ground that they cover
accommodation only would lead to a complicated tax system in which the VAT rules applicable would
depend upon the constituents of the services offered to each traveller. Such a tax system would fail to
comply with the aims of the Directive.
The mere supply of holiday accommodation by the travel agent is sufficient for the special scheme under
Articles 306 to 310 of the VAT Directive to apply and the importance of other supplies of goods or services,
which may be combined with the supply of accommodation, cannot have a bearing on the legal
classification of the situation at issue.
It was particularly important for the CJEU to clarify that the order of 1 March 2012, C-220/11
Star Coaches,
EU:C:2012:120, does not allow reaching a different conclusion.
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simplification of the VAT rules for travel agents and the balanced distribution of revenue
from the collection of VAT between Member States, are better achieved with the customer
principle. An opt-out option would clearly contradict the uniform application of the common
rules resulting in the objectives of the special scheme no longer being achieved.
Moreover, the CJEU saw no distortion of competition caused by including all B2B supplies
under the special scheme. On the other hand, there could well be a distortion of competition,
if businesses were granted the possibility to opt out. This was highlighted when the Council
discussed the 2002/2003 proposal. Furthermore, allowing for an opt-out clause with a limited
field of application (services sold and enjoyed inside one Member State only) was rejected,
because it was regarded as contrary to the Treaty. A territorial limitation would introduce
discrimination against non-established operators compared to established operators and would
be inappropriate for the establishment of the internal market. Such discrimination would not
stand up to examination by the CJEU unless it was justified by overriding reasons relating to
the public interest, and only if the exclusion of providers established in other Member States
could be considered as a measure which was strictly necessary to attain the objectives being
pursued.
A case brought to the German Federal Fiscal Court illustrates the undesired result of a
possible opt-out clause for businesses in case of intra-Community supplies
21
. The highest
German Court ruled that travel agents could opt for taxation under the special scheme (opt in)
for supplies between travel agents, because the German law (taxing these supplies under the
normal rules) would infringe the VAT Directive.
In the case referred to the German Court, an Austrian travel agent bought travel facilities in
Germany under the normal rules and asked for a VAT refund. Subsequently, it supplied the
travel facilities to a German travel agent without VAT under the reverse-charge procedure.
The German travel agent then declared a supply under the special scheme and supplied the
travel facilities located in Germany to German travellers as a B2C supply under the special
scheme. As a result, Germany did not collected any VAT on the travel facilities, only VAT on
the margin of the German travel agent was declared under the special scheme.
Finally, the various discussion of the special scheme in the VAT Committee, mainly between
1984 and 1989, and the 13 guidelines agreed by the Committee over the years exemplify that
despite the many cases already brought up to the CJEU, other issues, e.g. the VAT treatment
of vouchers, could trigger further litigation.
4.
S
TUDY
ON THE REVIEW OF THE
OPTIONS FOR REFORM
VAT
SPECIAL SCHEME FOR TRAVEL AGENTS AND
DG TAXUD commissioned KPMG with a study in December 2016 after the majority of
Member States requested so during the 105
th
meeting of the VAT Committee in October
2015.
The final report of the study was published in December 2017
22
. The study aimed at providing
an overview of the functioning of the special scheme. It reviewed the history of the special
21
22
Bundesfinanzhof ruling of 13.12.2017 in case XI R 4/16.
https://ec.europa.eu/taxation_customs/sites/taxation/files/travel_agents_special_vat_scheme_en.pdf
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scheme and how it had been influenced by various CJEU judgments. Options for reform were
also addressed.
The objectives of the study according to the call for tender were to:
a)
analyse the implementation and application of Articles 306 to 310 of the VAT Directive,
b) provide an in-depth economic analysis of the travel industry,
c)
evaluate the functioning of the current VAT rules provided for under the special scheme
for travel agents, notably taking into account a digital environment and a VAT regime
based on the destination principle, identifying and quantifying potential distortions of
competition,
d) identify, assess and compare options for reform both under the current place of supply
rules and under place of supply rules based on the destination principle.
In its executive summary, the report states:
“The Special Scheme has
now been in place for over 40 years and must function in a
world that has changed significantly since its inception. These years have seen enormous
growth in international travel, changes in technology, widespread deregulation
(particularly in the airline industry) and disruptive business models that have led to ways
of conducting business that would not have been in the mind of the original drafters of
the law. The combination of these factors, coupled with evolving CJEU case law, have
led us to conclude that modernisation is needed.
Competitive neutrality means that tax-driven price differences should be eliminated
irrespective of how a transaction occurs. The report identifies two principal distortions of
competition that should be addressed in order to ensure this happens. The first involves
varying definitions of what constitute “travel facilities” applied in Member States and
secondly, the treatment of B2B transactions. This latter distortion is of particular concern
to those sectors of the industry whose activities, by their very nature, are focused on
corporate clients.
The report also identifies material issues where a level playing field is not assured.
Differences in VAT treatment in practice occur between EU-established and non-
established suppliers. In addition, the requirement for the margin to be calculated on a
transaction-by-transaction basis is outdated and unsuited to the complexities of actual
business. Non-deductibility of input tax by a travel agent is also a significant drawback of
the scheme when providing services to a business client.
As with any tax system, any critical review will always revert to its role in the raising of
revenue. Our indicative estimate of the amount of VAT actually collected under the
Special Scheme amounts to
circa €1.9bn whilst associated irrecoverable VAT is
indicatively estimated at circa €5.6bn. In aggregate, these are significant figures but
should be read in the context of an EU VAT system that raises almost €1tn annually.
We have concluded that the underlying concepts and the general manner in which the
scheme functions are still fit for purpose, meeting the objectives of providing simplicity
and raising revenue, particularly where B2C transactions are concerned. The scheme
however was conceived to deliver these objectives in a significantly different
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environment. It now needs to be modernised to ensure that it continues to deliver for
another 40
years.”
Obviously, the information and views set out in the final report of the study are those of the
author and do not necessarily reflect the official opinion of the Commission.
In particular, it should be noted that the definition of distortion of competition applied in the
study is different to what would be a distortion of competition within the internal market. For
the study
“distortion of competition” is taken to arise where an unequal treatment of travel
agents under the special scheme rules in force in Member States was considered leading in
practice to significant changes in the behaviour of a travel agent.
The definition used in the study has its merits, because only such a wide definition can
demonstrate the practical difficulties of the travel industry in applying the common rules and
evaluate the level playing field between operators based in the EU and operators located
outside. However, with such a general definition, the study ends up comparing travel agents
taxed under the special scheme with those taxed under the normal rules.
Again, a wide definition is not as such problematic, but the study leaves the impression that
treating differently for VAT purposes intermediaries and travel agents acting in their own
name, who benefit from simplified rules, could potentially result in distortion of competition.
While from a business perspective such a view might seem justified, the VAT perspective
does not allow for such a view: a distortion of competition under the origin-based taxation of
the special scheme can only manifest itself, if differing rules in the Member States lead to
double taxation or non-taxation or to the relocation of businesses.
The study succeeds in delivering a comprehensive analysis of:
1) CJEU case law,
2) the application and implementation of the common rules by Member States,
3) the multi-layered and complex travel industry.
In particular, the study consulted the entire industry in a comprehensive manner including
through a questionnaire sent to businesses resulting in responses from 105 businesses located
in 18 Member States.
The main shortcomings of the study are:
1) Lack of quantification (simplification benefits of the special scheme, impacts of possible
reform options).
2) No evidence provided for relocation of operators to third countries or a growing market
share of operators located in third countries.
3) Matters raised by the travel industry dominate the study. Member States were not
consulted.
4) Lack of a consistent analysis of reform options from a VAT perspective.
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The lack of quantifications can mostly be explained by a lack of available data. Tax data is
confidential and the tourism statistics published by Eurostat
23
are incomplete when it comes to
travel agents and tour operators. To compensate for the absence of data, the study relied on
data provided directly by businesses. The answers to the questionnaire allowed for rough
estimates of VAT liabilities of businesses, but they could not deliver any insight concerning
the distribution of VAT revenues between Member States.
5.
FISCALIS 2020 W
ORKSHOP
The FISCALIS 2020 Workshop in Berlin was an opportunity to discuss the study with
Member States and to consult them on the functioning of the special scheme and possible
reform options.
The objectives of the Workshop in terms of evaluation of the VAT travel agents margin
scheme and consultation on reform options were to:
Confirm the need for a special scheme in a definitive VAT system based on taxation at
destination,
Improve the understanding of the current EU rules in light of the rulings handed down by
the CJEU,
Exchange experience between Member States,
Identify areas where current EU rules could merit a reform, taking into account the
unanimity requirement in Council and the concerns of the travel industry, and assess
options for margin taxation at destination.
All Member States and three candidate countries took part in the Workshop. During the three
working group sessions, the following four topics were discussed:
a)
Margin calculation under the current rules and possible reform options,
b) B2B supplies (principals versus intermediaries, benefits and costs of being taxed under
the special scheme) and possibility/consequences of abolishing the special scheme for
only B2B or entirely (B2B and B2C),
c)
The scope of the special scheme,
d) Non-EU travel agents and destination-based taxation.
The participants nearly unanimously confirmed the need for a special scheme and a great
majority of participants identified the same options for reform as those already included in the
since then withdrawn 2002/2003 proposal. Moreover, the Workshop confirmed that, apart
from covering the aspects already included in that proposal, a comprehensive future solution
should also require Member States to harmonise the scope of the special scheme.
23
That is data on tourism industries and trips of EU residents based on Regulation (EU) No 692/2011 of the
European Parliament and of the Council of 6 July 2011 concerning European statistics on tourism and
repealing Council Directive 95/57/EC (OJ L 192, 22.7.2011, p. 17).
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The most important technical conclusions drawn by participants were the following:
Allowing a global margin could represent a way forward, but would also require
clarification of further details.
All participants would be open to discuss an opt-out option for B2B supplies, but there
would be multiple challenges related to such an opt-out provision.
All participants agreed that there is a lack of harmonisation with regard to the scope of
the special scheme as it stands and a large majority advocated for a definition of travel
facilities. All agreed that the scope of the special scheme was a basic principle and
therefore had to be defined in the VAT Directive. Most agreed that for single travel
facilities, that are not transport or accommodation, the special scheme should not apply.
The large majority also agreed that ancillary services should be included when supplied
together with transport or accommodation. There was unanimous agreement that
apportioning and valuation in the case of mixed packages create complex problems and
that better methods should be identified and evaluated.
All participants agreed that non-EU travel agents should be included under the special
scheme, but that common rules would be required as well as an agreement on the place of
supply rules.
All participants agreed that the study could only serve as a starting point for further
discussion and some expressed disappointment that tax authorities had not been consulted
by KPMG when drafting the study.
E
VALUATION OF THE SPECIAL SCHEME
What is an evaluation?
6.
6.1.
Evaluation is a process that gathers evidence to provide an objective judgement of the
performance of existing EU policies, legislation and spending programmes (EU interventions
or EU activities). It is a tool to help the Commission services learn about the role played by
EU interventions and assess their actual performance compared to initial expectations.
Evaluations should be undertaken periodically and particularly before a revision of the policy
is anticipated ("evaluate-first"). Evaluation goes beyond an assessment of what has happened;
it considers why something has occurred (and what links, if any, can be made to the role of
the EU intervention) and, if possible, how much has changed as a consequence.
Each evaluation assesses the performance of the EU intervention against a minimum of five
key criteria:
Effectiveness (the extent to which the EU intervention has been successful in achieving
or progressing towards its objectives;
Efficiency (the costs and benefits associated with the EU intervention and whether they
are proportionate);
Relevancy (the extent to which the EU intervention (still) addresses (current) needs and
problems);
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Coherence (to what extent the elements of the EU intervention work well together
i) between themselves (i.e. internally) and ii) with other EU interventions);
EU added-value (the added value delivered by the EU intervention, over and above what
could reasonably have been expected from national and regional policies in the Member
States).
The preparation of an evaluation or fitness check involves the following steps:
6.2.
an evaluation roadmap is prepared and published;
an inter-service group is established to steer the collective preparation of the evaluation;
stakeholder consultation activities are undertaken and must include a 12-week open
public consultation;
the results of the evaluation or fitness check are presented in a self-standing staff working
document (SWD).
The roadmap and content of the evaluation
Roadmaps aim to inform citizens and stakeholders about the Commission's plans in order to
allow them to provide feedback on the intended initiative and to participate effectively in
future consultation activities. Citizens and stakeholders are in particular invited to provide
views on the Commission's understanding of the problem and possible solutions and to make
available any relevant information that they may have, including on possible impacts of the
different options.
The roadmap on the evaluation of the special scheme for travel agents is expected to be
published by the end of November 2019. In this roadmap, the Commission will be informing
of its intentions to evaluate the application and implementation of the special scheme in each
Member State. The evaluation will assess impacts and consequences that may have
materialized and possibly affected the level playing field within the European Union and vis-
à-vis economic operators located in third countries with a view to determine to what extent
the special VAT scheme for travel agents is fit for purpose and has delivered the desired
impacts at minimum costs.
Developments in the regulatory framework, like the introduction of the "One Stop Shop" in
2021 (a solution enabling all businesses which supply to final consumers to avoid multiple
registrations and declarations) and the shift to destination-based taxation (in the current VAT
Directive and in a definitive VAT system), will be important aspects to consider when
assessing the continued relevance of the special VAT scheme for travel agents.
The evaluation shall cover the five evaluation criteria according to the Better Regulation
Guidelines:
How successful has the VAT Directive been in achieving the objectives of simplification
and allocation of revenues to the Member State of consumption? Are the current rules
still effective in a digital environment? (Effectiveness)
Seen from the perspective of the internal market and that of businesses, how do the
benefits of a special scheme compare to related costs in terms of deviating from the
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normal VAT rules and potential distortions of competition? Could the same results have
been achieved in a less costly way? What regulatory costs, benefits and savings can be
identified and quantified? What is the simplification and burden reduction potential in
quantitative terms? (Efficiency)
To what extent does the special VAT scheme for travel agents still respond to the needs
and problems of stakeholders (businesses as well as Member State authorities), in
particular considering developments in the regulatory framework? To what extent have
the needs of stakeholders evolved since the special scheme was first implemented?
(Relevance)
To what extent is the special scheme coherent with the wider VAT system and rules?
(Coherence)
What has been achieved through the special scheme, which could not equally well have
been achieved by Member States acting at national level? (EU added value)
The five criteria are mandatory. They all have to be addressed, although they might not
perfectly fit to the evaluation of the special scheme.
Subject to the findings and recommendations, the Commission may follow up the evaluation
with an impact assessment. The evaluation should be completed in the first half of 2020.
6.3.
Consultation of Member States and stakeholders
The consultation strategy consists of consulting Member States during a FISCALIS 2020
workshop (achieved in 2018) and in this meeting of the Group on the Future of VAT. If an
answer to some of the questions at the end of this document require more time in answering or
further research, Member States will have the possibility to provide written answers after the
meeting. For all other stakeholders, including the industry and VAT experts, an open public
consultation with a duration of 12 weeks will be launched in December 2019.
Advocate General Bobek comments on the current situation regarding the special scheme in
his opinion in case C‑552/17
Alpenchalets:
“All in all, it is perhaps fair to admit that, despite
the heralded objective of simplification, the implementation of that ideal in the specific
context of the special scheme for travel agents remains rather remote from that stated ideal.
That particular scheme has become one of the most complex areas of VAT.”.
7.
7.1.
P
OSSIBLE REFORM OPTIONS
Commission’s
2002/2003
proposal
The 2002/2003 proposal suggested that the following four major changes should be made to
the special scheme for travel agents:
Taxation of the margin should cover cases where travel packages are sold to a travel
agent, which in turn sells them on to travellers or other businesses.
Supplies of travel packages by travel agents from outside the EU to EU-residents should
be taxed within the EU; in order to simplify compliance with EU VAT rules, a one-stop
scheme should be introduced.
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As an option, taxation of the margin could be based on the margin realised over each tax
period.
An opt-out clause should be introduced, on the basis of which the travel agent may apply
the normal VAT rules for supplies to other taxable persons.
The proposal was discussed during the Spanish and Italian Presidencies in 2002 and 2003.
Discussion made reasonable progress initially but stalled in 2003. In early 2010, the Spanish
Presidency attempted a fresh start, building on earlier discussions. These renewed discussions
were not fruitful however and discussions up to and including the Hungarian Presidency in
2011 could not deliver progress towards unanimity.
A progress report from the Hungarian Presidency
concluded that there was “no possibility in
reaching any progress in this dossier without a new, detailed assessment of the current
situation and the eventual changes to the special scheme on travel agents”.
The Council discussions concluded by a request for the Commission to undertake a survey of
Member States so as to compile an up-to-date overview of how the special scheme was
applied. Broadly speaking, the replies received confirmed that the lack of uniform application
identified at the time of the 2002 proposal had only become even more pronounced.
7.2.
Reform options by the study
The study recommended keeping the special scheme as a simplification measure, but allowing
for the possibility of calculating a global margin.
Furthermore, the study identified a need to include single travel facilities under the special
scheme and a need to define travel facilities, because differing approaches to the meaning of
travel facilities lead to supplies being subject to non-taxation or double taxation.
The study also compared taxation of the margin under the current scheme (place of
establishment of the travel agents) with taxation of the margin according to the usual
residence of the customer and taxation of the margin in the Member State, where the travel
services are enjoyed. Both options would assist in the equalisation in treatment of EU-based
travel agents and travel agents located in third countries.
Finally, a specific section was devoted to supplies by travel agents to taxable persons. The
sectors mainly dealing with business clients were each analysed separately, namely:
Travel Management Companies (TMC), which are able to compare different itineraries
and costs in real-time, allowing users to access fares for air tickets, hotel rooms and rental
cars simultaneously and to prepare bespoke travel plans for clients,
MICE (Meeting, Incentives, Conferences and Events) organisers, and
Destination Management Companies (DMC) / wholesale tour operators, which focus on
inbound tourism and cater services for both tour operators focusing on leisure tourism
and for MICE organisers, and sometimes for TMCs.
The analysis illustrated the complexity of taxing these businesses under the normal rules and
this raised doubts about a total exclusion of B2B supplies from the special scheme. Therefore,
the study suggested keeping B2B under the special scheme, whilst considering an opt-out
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possibility for businesses as the most business-friendly approach. On the other hand, the study
did not elaborate further on the impact of such a possibility, in particular for the internal
market and on the allocation of VAT revenues between Member States.
With regard to TMC / MICE and reform options, the study highlighted that not being able to
deduct input VAT and irrecoverable VAT on the travel agent’s margin make the industry
uncompetitive. As a result, TMCs and MICEs often adopted the intermediary status.
Nonetheless, acting as intermediary and providing clients with the documentation needed to
evidence their purchase of services from primary suppliers such as hotels often presented
them with difficulties.
7.3.
Reflections by the Commission services with regard to a potential follow-up of
the evaluation by an impact assessment
The main take away from the study is that the travel industry is highly complex. While parts
of the industry need simplified rules, other businesses sacrifice simplification for lowering
VAT liability to be more competitive. The same is true for a global margin calculation. Part of
the industry is not concerned, but some operators do encounter difficulties in accounting for
payments on account, kickbacks, bonus-malus payments, complaints, etc. and all those
operators would appreciate the possibility to offset negative margins.
Distortions of competition appear to result from different rules to be found in Member States,
a situation which is due to shortcomings of the current legislation (lack of definition of travel
facilities) and non-compliance with the current rules (single travel facilities, B2B supplies).
Moreover, a level playing field within the European Union is not sufficient, because EU-
based operators compete with third country operators that are not being taxed under the
special scheme when they are supplying travel in Europe to European customers.
It is important to recall that the special scheme provides simplification through origin-based
taxation (avoiding multiple registrations) and by not requiring travel agents to account for
VAT under the normal rules (complex in case of packages) or having to claim back input
VAT. A similar scheme is only available for taxable dealers supplying goods falling under the
second-hand scheme and certain farmers falling under the flat-rate scheme.
The difference compared to the other two schemes is that travel agents do not have the
possibility to opt for taxation under the normal rules. While the study focussed on B2B
supplies and deduction of input VAT when referring to such a possibility for travel agents,
there is a similar issue with regard to B2C supplies. When supplying a single travel facility
like accommodation only, which is subject to a reduced rate in nearly all Member States if
supplied by a hotel, the margin of a travel agent must be taxed at the standard rate of VAT.
This is necessary since the origin-based taxation of the margin requires a certain level of
harmonisation in order to avoid potential distortion of competition. A simple solution, offered
by certain Member States, is to tax the supply of a single travel facility, like accommodation
only, under the normal rules. Such a treatment however ignores the interpretation of the
common rules by the CJEU and again leads to unequal treatment of similar supplies, because
if the travel agent supplies accommodation together with in-house or ancillary supplies, that
supply must be taxed under the special scheme.
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We can summarise that the existence of a special scheme requires
clarification of its scope, and
clarification in how far normal rules can be applied.
However, since 1977 these tasks have been left for the CJEU to handle.
This is a point also made by Advocate General Sharpston who in her opinion in case
C‑189/11
et al.
Commission v Spain
said that:
“It
is hard to avoid the impression that the
Court is being called upon to decide a matter of VAT policy (and of legislative drafting)
which has proved beyond the capabilities or the willingness of the Member States and the
legislature.”.
If Member States disagree with certain decisions taken by the CJEU or see the need for
improving current rules, the only way forward would be an impact assessment as that would
allow for possible options for reform to be assessed. It could cover all the aspects already
raised in the Commission’s
2002/2003
proposal and the study, but also the possibility for
travel agents to opt for taxation under the special scheme in case of a supply in isolation,
which is not related to a journey (C-31/10
Minerva Kulturreisen).
With regard to transaction-based calculation of the margin, which is a source of complexity,
and its interaction with the normal VAT rules, the study shows that nearly all Member States
provide for certain simplification measures (despite the fact that they are bound by the VAT
Directive, even if they may deem it to be in need of improvement, until the Union legislature
decides, where appropriate, to amend the special scheme
24
). An impact assessment would
require a comprehensive analysis of a variety of solutions for simplification. This could
include analysing the scope of a simplification option for Member States similar to what is
available under Article 318 of the VAT Directive in relation to supplies made by taxable
dealers under the second-hand scheme and the impact of using a fixed margin such as applied
by Belgium based on a derogation. Furthermore, the impact of enabling negative margins
being offset could be discussed.
In his opinion
in case C‑422/17
Skarpa Travel
Advocate General Bobek commented on this
issue, stating that:
“It is also not without a certain dose of irony that, as almost all the parties
and interested persons suggested at the hearing, the special schemes were put in place in order
to simplify the operation of the system, while arriving at strikingly different opinions as to
what such simplification should mean in the specific context of the special scheme for travel
agents. Also in view of such notable diversity in simplification, I assume it would be
advisable to leave further simplification steps in this regard to the EU legislature and/or,
within the bounds set by the EU law, to the national legislatures.”.
Another reason for an impact assessment could be to clarify areas, which were (not yet)
brought up to the CJEU. This could include looking at a definition of travel facilities, e.g. the
short-term hiring of means of transport, the treatment of mixed packages, the taxation of
certain supplies by intermediaries under the special scheme or invoicing requirements and
recovery of VAT on the margin by business receiving special scheme supplies.
24
Paragraph 93 of CJEU ruling in case C-380/16
Commission v Germany.
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The impact assessment could even go so far as to assess the abolition of the special scheme in
the light of the One-Stop-Shop entering into force in 2021.
8.
Q
UESTIONS TO THE DELEGATES
Regarding the evaluation of the special scheme, delegates are invited to inform about:
1.
2.
The availability of tax data as regards the special scheme,
Evidence of distortions of competition in the internal market, evidence of distortions of
competition between local and third country operators and evidence of material issues for
the industry such as observed by the study.
Regarding the consultation of Member States in the context of the evaluation, delegates are
invited to indicate if they agree or disagree to the following statements:
1.
2.
3.
4.
The special scheme achieves its objective of simplification.
The travel industry continues to need special VAT rules.
The common rules, although interpreted by the CJEU, still lack clarity.
There is a need for amending the current rules as interpreted by the CJEU and
consequently a need for an impact assessment, which could be followed by a
Commission proposal.
In case an impact assessment would follow the evaluation, delegates are invited to comment
on the reflections by the Commission services. In addition, delegates should have the
possibility to answer to the same questions as those asked by the Spanish Presidency in
Council in 2010:
1.
Do the Member States consider it desirable for the special scheme to be applied to
businesses that purchase goods or services from third parties with the aim of reselling
them as “travel packages” or should application of the scheme be restricted
to travel
products sold directly to travellers?
Should services provided by non-EU travel agents to customers established in the EU and
relating to trips within the EU be subject to VAT in the EU?
Would an option scheme be needed and, if so, what would be its scope?
Should travel agents subject to the special scheme be offered the option of the calculation
of their taxable base being fixed, on the basis of the profit margin, for each tax period
taken as a whole?
2.
3.
4.
Furthermore, delegates have the possibility to comment on the reform options discussed in the
study, notably:
1.
Taxation of the margin at the place of usual residence of the customer or in the Member
States in which the travel services provided are enjoyed.
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2.
Consequences when accounting for VAT under the normal rules for a package of travel
facilities supplied by TM and DM companies and for events combining travel facilities
with non-travel services supplied by MICE organisers.
Finally, if concerned, delegates are invited to respond to the following questions:
1.
2.
3.
Why do certain Member States allow travel agents the possibility of a global or fixed
margin calculation?
Why do certain Member States tax B2B wholesale supplies by a travel agent acting in his
own name under the normal rules?
Why do certain Member States allow travel agents acting in their own name to opt for
taxation under the normal rules for B2B supplies of packages consisting of
accommodation (e.g. events)?
Why do certain Member States tax under the normal rules the supply of accommodation
only by a travel agent acting in his own name:
and indicate the most appropriate answer:
a) Legislative procedure is on-going (awaiting adoption of amended national VAT
legislation / a change of the national VAT legislation will be proposed in the future).
b) Agreement with the interpretation of case law as put forward by the Commission
services, but action can only be taken if all Member States concerned adapt national
VAT legislation or if infringement procedure are launched by the Commission.
c) Agreement with the interpretation of case law as put forward by the Commission
services, but implementation would be to the detriment of the industry. Awaiting a
legal initiative by the Commission.
d) Disagreement with the interpretation of case law as put forward by the Commission
services. No need to amend national VAT legislation.
4.
*
*
*
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