Statement of the SIV-ERV concerning the recommendation of the commission to change the RL. EG 112/2006
Statement of the SIV-ERV concerning:
Future of electronic invoices and changes to RL 2006/112 EG
In January 2009 a recommendation of the EU commission was published, that broaches the issues of regulations concerning electronic signature in the context of electronic invoices. In number 25 of the recommendations the authors et al. suggest to eliminate article 233, 234, 235 and 237 of RL 2006/112/EG without limitation. English documents are available:
http://ec.europa.eu/taxation_customs/resources/documents/common/
whats_new/com_2009_20_en.pdf
http://ec.europa.eu/taxation_customs/resources/documents/common/
whats_new/memo_e-invoicing_en.pdf
http://ec.europa.eu/taxation_customs/resources/documents/common/
whats_new/com_2009_21_en.pdf
The international press often reduces these recommendations of the EU commission to change the RL 2006/112/EG, so that the SIV-ERV decided to revise the recommendation.
It is inapplicable und requires a clarification that „the EU has abolished electronic signatures for electronic invoices“.
The suggestion for modification of RL 2006/112 EG mainly affects further accentuations concerning the content of invoice documents and the notification requirements of companies for prevention of fraud in the context of VAT.
Furthermore some suggestions for modification also intend to generally simplify the exchange of invoices for small and medium sized businesses („Simplified VAT invoice“ vs. „Full VAT invoice“) and here especially the exchange of electronic invoices.
Concerning the last item it was suggested to eliminate the articles 233, 234, 235 and 237 of the RL 2006/112 EG.
Therefore this suggestion requires changes to implemented secondary law in all countries of the EU. The board of the European Union will eventually decide on the suggestions. Previously to such a decision a suggestion of the commission (is existent) as well as a hearing of the European parliament and the council of economy and social is necessary.
A completion of this proceeding is not expected before the year 2013. After completion of the proceeding the member countries will have a deadline of transposal of at least 2 to 5 years to adjust the national directives to the new EU directive, if needed.
In that respect the suggestion can in no case serve as a legitimation for a different proceeding other than regulated by § 14 Abs. 3 UStG in Germany. Even in international (EU) exchange of invoices the regulations of EG 2006/112 are binding at the moment and must be observed as applicable law at least up to the year 2013.
With regard to the content of the recommendation the SIV-ERV comments on the suggestion to eliminate the articles 233, 234, 235 and 237 RL 2006/112 EG as follows:
Just using the buzzword "debureaucratisation", especially done by the Austrian chamber of commerce (WKÖ), cannot change the fact, that an elimination of all regulations to secure electronic documents is too extensive.
A pure elimination of articles 233, 234, 235 and 237 RL 2006/112 EG will result in a loss of "document evidence" (§ 239 HGB) for tax relevant documents (invoices). This is hard to bring in line with the attempts of the EU commission to prevent VAT fraud at the same time.
Where is the sense of tightening the requirements concerning the content of an invoice when at the same time the document itself is not trustworthy anymore?
We also criticize the process of consultations ahead of the recommendation. It is astounding that only sixteen (!) opinions of mainly not involved institutions were gathered, but e.g. neither the German Federal Office for Information Security („Bundesamt für Sicherheit in der Informationstechnologie“ / BSI) nor the Federal Network Agency (“Bundesnetzagentur” / BNetzA) were consulted. In their jurisdiction (§ 3 SigG) most electronic invoices are exchanged inside the EU.
The expertise on the fiscal impact of the suggested changes that was obtained is in parts incomplete. The "impact assessment" e.g. does not cover the risks arising from the exchange of large quantities of unsecured invoices in the context of compliance of books and balance sheets of companies as well as the tax yield.
This is hard to comprehend when at the same time almost all major mail-order firms, telecommunication companies and auction platforms were faced with the problem of fake invoices in their name in the last years.
As far as an „equal treatment“ of paper and electronic documents is applied, we want to point out that the rule of equality does not only prohibit the "unequal treatment of equal" but also the "equal treatment of unequal”. It is obvious that the risks of faking and mass distribution of paper invoices and electronic invoice differ strongly, so that appropriate technical counter measures for electronic invoices are required. This has nothing to do with unnecessary bureaucracy, which in fact must be reduced.
Furthermore a pure elimination of articles 233, 234, 235 and 237 of the RL 2006/112 EG is contradictory to article 95 EG, committing the EU to create harmonized regulations at the highest technological level available. This commitment cannot be fulfilled by a regulation loophole, which would result after the intended elimination.
It is undeniable that the demand to secure the integrity und authenticity of electronically processed documents must always be assured. Against this background the EU has issued the directive 1999/93/EG from December 13, 1999, which meanwhile is implemented in all 27 member countries of the EU as a national law. For the data exchange via EDI according to article 2 of the recommendation 94/820/EG of the commission (ABl. L 338 from 28.12.1994, page 98) uniform requirements also exist. The legal harmonization defining the state of the technology to implement security for integrity and authenticity already took place. The electronic invoice is („only“) one use case. An elimination of article 233, 234, 235 and 237 of RL 2006/112 EG would destroy the so far consistent legal regulations for revision-safe documents and would lead to irreconcilable difficulties with applicable law. How can a company assure the document status according to HGB/GoBS/ KWG etc. if the company is forced by the VAT law to accept any electronic document as an invoice and therefore as an accounting record?
Hence it cannot be expected that companies get real easement by just eliminating the electronic signatures for invoices. The opposite would happen. Companies must implement two audit trails: One to answer the question if tax deduction is allowed without been able to maintain certainty and one to answer the question if the document (invoice) complies with other regulations covering invoices. Such a differentiation was not necessary so far.
A further loss would be the already accomplished legal harmonization. Suddenly companies will be faced with the problem of inconsistent proceedings for invoice handling. Companies would have to create different recipient, country, authority and application specific documents with different safety requirements. This will bear an unforeseeable risk for companies and would be a step back into „protectionism“. Considering these problems it remains very unclear how a cost advantage can be realized and will probably remain a secret to the author.
Beyond these legal considerations it seems that over the discussion of debureaucratisation it has fallen into oblivion that products for electronic signatures have developed fast-paced in the last years. The former niche segment has become a mature market with many offers especially for small and medium sized business. In this respect the electronic signature has verifiably reduced costs and has proven to be an appropriate instrument to secure the integrity and authenticity of electronic invoices in an easy, fast and cost-cutting manner.
An elimination of articles 233, 234, 235 and 237 of RL 2006/112 EG can therefore not be favored. The SIV-ERV rather demands to bring forward the harmonization process by the eliminating the “divergence competence” of the member countries. This way a uniform basis for a secure exchange of electronic invoices can be established inside the EU.
Version: 1.3
SIV-ERV
Responsible editors:
Mr. Raoul Kirmes, Mr. Alfred Gass, Ms. Judith Balfanz
© 2009 SIV-ERV
Contact:
Judith Balfanz Raoul Kirmes
SIV-ERV speaker SIV-ERV speaker
esignature / eBilling Justiz- und Behördenkommunikation
www.siv-erv.de
