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Annex to
VSt-7343/4 (21 August 2013)
EU;
Subsidiarity and proportionality monitoring;
European Commission proposal for a Directive on electronic invoicing in public procurement, COM(2013) 449 final
Joint position of the Austrian Länder
On 26 June 2013, the European Commission published a proposal for a Directive on electronic invoicing in public procurement (COM(2013) 449 final).
1. On examination of the Commission proposal, no subsidiarity issue was considered by the Länder to arise with respect to the measures envisaged.
2. However, in the view of the Länder some points are problematic with respect to content.
2.1 Under Article 3 of the proposed Directive on electronic invoicing in public procurement (COM(2013) 449 final), the European Commission asks the relevant European standardisation organisation to draw up a European standard for the semantic data model of the core electronic invoice.
The reference to the European standard drawn up by the relevant European standardisation organisation must be published in the Official Journal of the European Union. Under Article 4 of the proposed Directive, contracting authorities and contracting entities must accept electronic invoices that comply with this European standard (which must first be drawn up).
The proposal under consideration thus delegates substantial discretion over its content to a body that is not the legislator. In our view the standard should first be drawn up and only then, when it is in binding form, should its content (with any necessary amendments) be incorporated into the Directive.
It will not be possible to assess the implementation of the standard to be drawn up, possible need for adjustment and associated costs until its specific details are ready (no invoice formats or content are currently available). The planned approach makes it impossible to give an opinion on the form and substance of electronic invoicing in the current legislative process.
The Länder also note the following inconsistency in the proposal: whereas Article 6 sets a period of 48 months for compliance with the provisions, if the request is not submitted to the standardisation organisation until the Directive comes into force (Article 3) and the 48-month implementation period for the Member States starts at that point, then much less time remains for the actual (i.e. technical) implementation, because the European standardisation organisation will need several months to develop and adopt the standard. The implementation period should therefore begin only when the European e-invoicing standard is published in accordance with Article 3(2) of the proposal.
The question also arises of how this Directive, which currently contains no specific instructions on the detailed format of electronic invoices, is to be transposed at all by the Member States into national law.
Furthermore, Article 3 of the proposal for a Directive (the request for the relevant European standardisation organisation to draw up a European standard for the semantic data model of the invoice) seems to be incompatible with Article of 2 of Regulation (EU) No 1025/2012, under which standardisation must mean a "technical specification". Article 2(2) of the proposal for a Directive defines the "semantic data model" as a "structured and logically interrelated set of terms and meanings that specify the content exchanged in electronic invoices". A set of terms and meanings specifying the content of e-invoices is not considered to be a matter of technical specification, however, and would not therefore fall within the remit of the European standardisation organisation.
2.2 Since the Directive in question is designed to be the first stage towards full electronic procurement, this could create disproportionate costs and thus competitive disadvantages for many SMEs and microbusinesses. For the sake of equal opportunities, when implementing the Directive there must therefore be a level playing-field for such companies, in particularly those operating locally, which do not have the same opportunities as large international businesses. Although in its Communication on End-to-end e-procurement to modernise public administration (COM(2013) 453 final, 26 June 2013) the Commission mentions support specifically for SMEs in this context (Key Action 7), the current proposal for a Directive does not contain the necessary legal provisions for this Key Action, or at least a reference to such provisions in the recitals. The Länder therefore urge that the proposal on electronic invoicing in public procurement be adapted accordingly.
2.3 It is also unclear how the present proposal for a Directive relates to Directive 2006/112/EC on the common system of value added tax. Although recital 17 of the proposal notes that the conditions for issuing and accepting electronic invoices for VAT purposes remain unaffected, under Article 218 of the VAT Directive the Member States must accept all documents or messages on paper or in electronic form that meet the invoice conditions laid down in Article 226. Depending on whether the European standardisation organisation intends to set different substantive requirements (see "invoice attributes" in recital 7), this could then mean that different EU requirements will exist: one set for invoices for VAT purposes and another for electronic invoices. But this would mean that the purpose of the present proposal for a Directive, which is to harmonise rules, would not be achieved, and that Article 114 TFEU, whose aim is the approximation of Member States' legal and administrative provisions to improve the functioning of the internal market, would make no sense as a basis for action.
What is more, payment problems and extra related cost or delays could ensue that would not be desirable for either the contracting authority or the economic operator, if the EU provisions on e-invoicing are not consistent with those of the VAT Directive.
Finally, the Länder note with regard to Article 4 of the proposal, under which the Member States must ensure that contracting authorities and contracting entities do not refuse to receive electronic invoices (complying with this Directive), that in the case of public procurement processes relating to EU funding programmes the European Commission currently accepts only original paper invoices but not e-invoices. It would therefore be preferable for harmonisation of e-invoicing not to stop at the European Commission's doorstep, but for it to be extended to include the implementation of e-invoicing provisions in relation to EU funding. This might mean adapting EU standards in the sphere of funding that are incompatible with such harmonisation.
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CDR5616-2013_00_00_TRA_INFO