Council Directive 2009/132/EC of 19 October 2009 determining the scope of Article 143(b) and (c) of Directive 2006/112/EC as regards exemption from value added tax on the final importation of certain goods

• Published date: 10 November 2009
• Official Gazette Publication: Journal officiel de l’Union européenne, L 292, 10 novembre 2009,Gazzetta ufficiale dell’Unione europea, L 292, 10 novembre 2009,Diario Oficial de la Unión Europea, L 292, 10 de noviembre de 2009

10.11.2009 EN Official Journal of the European Union L 292/5

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COUNCIL DIRECTIVE 2009/132/EC

of 19 October 2009

determining the scope of Article 143(b) and (c) of Directive 2006/112/EC as regards exemption from value added tax on the final importation of certain goods

(codified version)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 93 and 94 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) Council Directive 83/181/EEC of 28 March 1983 determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.

(2) Pursuant to Article 131 and Article 143(b) and (c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (5), Member States are, without prejudice to other Community provisions and under conditions which they shall lay down for the purpose, inter alia, of preventing any possible evasion, avoidance or abuse, to exempt final importation of goods qualifying for exemption from customs duties other than as provided for in the Common Customs Tariff.

(3) Pursuant to Article 145 of Directive 2006/112/EC, the Commission is required to submit to the Council proposals designed to lay down Community tax rules clarifying the scope of the exemptions referred to in Articles 143 and 144 of that Directive and detailed rules for their implementation.

(4) While it is deemed desirable to achieve the greatest possible degree of uniformity between the system for customs duties and that for value added tax, account should be taken, nevertheless, in applying the latter system, of the differences as regards objective and structure between customs duties and value added tax.

(5) Separate arrangements for value added tax should be laid down for imported goods to the extent necessary to comply with the objectives of tax harmonisation. The exemptions on importation can be granted only on condition that they are not liable to affect the conditions of competition on the market.

(6) Certain reliefs applied in the Member States stem from conventions between those Member States and third countries which, given their purpose, concern only the signatory Member States. It is not expedient to define at Community level conditions for granting such reliefs. The Member States concerned need merely be authorised to retain them.

(7) This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex II, Part B,

HAS ADOPTED THIS DIRECTIVE:

TITLE I

SCOPE AND DEFINITIONS

Article 1

The scope of the exemptions from value added tax (hereinafter VAT) referred to in Article 143(b) and (c) of Directive 2006/112/EC and the rules for their implementation, referred to in Article 145 of that Directive, shall be defined by this Directive.

In accordance with Article 131 and Article 143(b) and (c) of Directive 2006/112/EC, the Member States shall apply the exemptions laid down in this Directive under the conditions fixed by them in order to ensure that such exemptions are correctly and simply applied and to prevent any evasion, avoidance or abuses.

Article 2

1. For the purposes of this Directive:

(a) ‘imports’ means imports as defined in Article 30 of Directive 2006/112/EC and the entry for home use after being subject to one of the systems provided for in Article 157(1)(a) of that Directive or a system of temporary admission or transit;

(b) ‘personal property’ means any property intended for the personal use of the persons concerned or for meeting their household needs, including household effects, cycles and motor-cycles, private motor vehicles and their trailers, camping caravans, pleasure craft and private aeroplanes, as well as household provisions appropriate to normal family requirements, and household pets and saddle animals;

(c) ‘household effects’ means personal effects, household linen and furnishings and items of equipment intended for the personal use of the persons concerned or for meeting their household needs;

(d) ‘alcoholic products’ means products (beer, wine, aperitifs with a wine or alcohol base, brandies, liqueurs and spirituous beverages, etc.) falling within CN codes 2203 to 2208;

(e) ‘Community’ means the territory of the Member States where Directive 2006/112/EC applies.

2. The nature or quantity of personal property shall not reflect any commercial interest, nor shall they be intended for an economic activity within the meaning of Article 9(1) of Directive 2006/112/EC. However, portable instruments of the applied or liberal arts, required by the person concerned for the pursuit of his trade or profession, shall also constitute personal property.

TITLE II

IMPORTATION OF PERSONAL PROPERTY BELONGING TO INDIVIDUALS COMING FROM THIRD OUNTRIES OR THIRD TERRITORIES

CHAPTER 1

Personal property of natural persons transferring their normal place of residence to the Community

Article 3

Subject to Articles 4 to 11, exemption from VAT on importation shall be granted on personal property imported by natural persons transferring their normal place of residence from outside the Community to a Member State of the Community.

Article 4

Exemption shall be limited to personal property which:

(a) except in special cases justified by the circumstances, has been in the possession of and, in the case of non-consumable goods, used by the person concerned at his former normal place of residence for a minimum of six months before the date on which he ceases to have his normal place of residence outside the Community;

(b) is intended to be used for the same purpose at his new normal place of residence.

The Member States may in addition make exemption of personal property conditional upon such property having borne, either in the country of origin or in the country of departure, the customs and/or fiscal charges to which it is normally liable.

Article 5

Exemption may be granted only to persons whose normal place of residence has been outside the Community for a continuous period of at least 12 months.

However, the competent authorities may grant exceptions to this rule provided that the intention of the person concerned was clearly to reside outside the Community for a continuous period of at least 12 months.

Article 6

Exemption shall not be granted in respect of:

(a) alcoholic products;

(b) tobacco or tobacco products;

(c) commercial means of transport;

(d) articles for use in the exercise of a trade or profession, other than portable instruments of the applied or liberal arts.

Vehicles intended for mixed use for commercial or professional purposes may also be excluded from exemption.

Article 7

1. Except in special cases, exemption shall be granted only in respect of personal property entered for permanent importation within 12 months of the date of establishment, by the person concerned, of his normal place of residence in the Community.

2. The personal property may be imported in several separate consignments within the period referred to in paragraph 1.

Article 8

1. Until 12 months have elapsed from the date of the declaration for its final importation, personal property which has been imported exempt from tax may not be lent, given as security, hired out or transferred, whether for a consideration or free of charge, without prior notification to the competent authorities.

2. Any loan, giving as security, hiring out or transfer before the expiry of the period referred to in paragraph 1 shall entail payment of the relevant VAT on the goods concerned, at the rate applying on the date of such loan, giving as security, hiring out or transfer, on the basis of the type of goods and the customs value ascertained or accepted on that date by the competent authorities.

Article 9

1. By way of derogation from Article 7(1), exemption may be granted in respect of personal property permanently imported before the person concerned establishes his normal place of residence in the Community, provided that he undertakes actually to establish his normal place of residence there within a period of six months. Such undertaking shall be accompanied by a security, the form and amount of which shall be determined by the competent authorities.

2. Where use is made of paragraph 1, the period laid down in point (a) of the first paragraph of Article 4 shall be calculated from the date of importation into the Community.

Article 10

1. Where, owing to occupational commitments, the person concerned leaves the third country or third territory where he had his normal place of residence without simultaneously establishing his normal place of residence on the territory of a Member State the Community, although having the intention of ultimately doing so, the competent authorities may authorise exemption in respect of the personal property which he transfers into the said territory for this purpose.

2. Exemption in respect of the personal property referred to in paragraph 1 shall be granted in accordance with the conditions laid down in Articles 3 to 8, on the understanding that:

(a) the periods laid down in point (a) of the first paragraph of Article 4 and paragraph 1 of Article 7 shall be calculated from the

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