Reduced VAT Rate On Digital Books
Brussels, 3rd July 2012 – The European Commission has launched an infringement procedure against France and Luxembourg because the VAT rates they are applying to digital books are potentially incompatible with EU law.
EU legislation allows Member States to apply reduced VAT rates to a limited list of goods and services set out in Annex III to the VAT Directive. Downloading of digital books is regarded as a service supplied electronically, which is not included in this list and cannot therefore be taxed at the reduced rate.
In its Communication of December 2011 on the future of VAT, the Commission launched a debate on the possibility of moving towards convergence of the VAT rates applicable, on the one hand, to traditional books and, on the other, to digital books.
The Commission will put forward proposals by the end of 2013. It is not possible, however, to ensure convergence towards the reduced rate currently applicable to traditional books without amending the VAT Directive.
France and Luxembourg nevertheless decided to apply reduced rates to digital books as of 1 January 2012, thereby infringing EU law. The rates are 7% for France and 3% for Luxembourg.
This situation is creating serious distortions of competition that are damaging to economic operators in the other 25 Member States since digital books can easily be purchased in a State other than the one where the consumer resides and, under the current rules, the VAT rate applies is that of the provider’s, not the customer’s, Member State.
Local actors in the electronic book market have complained that some of the dominant players in this market have reorganised their distribution channels to benefit from these reduced rates, which has apparently had a serious effect on the sale of books (both digital and traditional) in the other Member States in the first quarter of 2012.
The Commission considers that these reductions might not be in line with European law and has decided to send letters of formal notice to both Member States.
This first stage allows the two countries to explain their positions. France and Luxembourg have one month to submit their comments.
If the information provided is not regarded as sufficient, the Commission could formally state that there has been an infringement and send a reasoned opinion to the two countries asking them to change their laws, which is the second stage of the infringement procedure.
How Dominant Players Reorganised Their Distribution Channels To Benefit From These Reduced Rates
If a private individual with residence in European Union buys e-commerce services from Apple via the iTunes store in Luxembourg no local VAT is due unless you are a resident of Luxembourg. The supply is subject to Luxembourg VAT
Assume that a Hungarian individual has a choice to purchase and download via a Luxembourg or Hungarian supplier. It is much cheaper from a VAT perspective to purchase a digital book from Luxembourg company than locally.
Distortion Of Competition
In Hungary the standard VAT rate is 27%. The standard VAT rate in Luxembourg is still 15%. That means at least a VAT saving of 12% per transaction.
The saving is 24% if a reduced Luxembourg VAT rate of 3% is applicable and in Hungary – if purchased locally – the standard rate applies.
Luxembourg and France (already) allow a reduced VAT rates on digital books (similar as traditional hard copy books) and that makes the distortion even worse.
Richard Cornelisse is CEO of the KEY Group and worked previously as Big4 Partner in the Tax Performance Advisory and Indirect Tax Practice and blogs on Tax Function Effectiveness and Tax Control Framework developments.