Welcome to the latest edition of the Transport & Logistics Newsletter – bringing you the latest sector developments from Belgium and across Europe. Highlights of this edition include the outlook for T&L M&A in 2014, new VAT provisions for transport services and new VAT measures affecting GVRs, among other topics.
We hope you enjoy the read!
The Royal Decree of 24 April 2014 has extended the application of the Act to members of the joint industrial committee 140.03
The Special Finance Act of 29 March 2012 introduced a mechanism of chain liability for salary debts through an additional chapter in the Pay Protection Act. This led to the creation of joint and several liability for salaries, meaning that (sub) contractors and principals in a chain of contractors can be held jointly and severally liable for correct payment of salary. For the industries of building and related activities (work on immovable property), security, agriculture and horticulture, cleaning and meatpacking, the salary-related joint and several liability rule already came into effect on 1 September 2013. The Royal Decree of 24 April 2014 has now extended the application of said Act by adding the activities or services that fall within the scope of joint industrial subcommittee for road transport and logistics on behalf of third parties (joint industrial committee 140.03).
The joint and several liability for the payment of salary applies when the Social Inspection states in writing that a (sub) contractor has ‘seriously failed’ to meet its obligation to pay its employees the salary they are entitled to in a timely manner. The joint and several liability is thus not applicable until notice has been received from the Inspectorate, and it applies to future pay only. In other words, there is no ‘automatic’ liability, as the Social Inspection plays a key role in the operation of the joint and several liability regime.
The joint and several liability does not apply to the entire salary. This is because ‘serious failure’ is deemed to have occurred only if the salary paid is lower than the minimum wage applicable in the industry concerned, or if no salary is paid. This means then that the mere non-payment of the entire salary due (which may be more than the minimum salary) is not considered serious failure.
The liability for salary becomes effective 14 working days after notice from the Social Inspection is received, and it applies for a period that is also determined by the Social Inspection (maximum one year).
The 14-day term allows those receiving notice to take any action available to them under the agreements in place with contractors and/or subcontractors at lower levels in the chain, so as to avoid liability. The Royal Decrees pertaining to the agriculture, horticulture, cleaning and food industries have included supplementary provisions that impose restraints on clauses used by principals, contractors and subcontractors trying to cover themselves against liability on their part. This is not (yet) the case for the new Royal Decree for the transport industry.
The salary-related joint and several liability regime for the aforementioned activities governed by joint industrial committee 140.03 became effective on 16 May 2014.
For more information, you can contact Wendy Van Hullebusch (Tel. +32 3 2593218).
Paid road passenger transport service providers that are not established in Belgium are now subject to the new VAT scheme.
As from 1 January 2014, suppliers not established in Belgium providing paid passenger transport in Belgium are treated as regular VAT entrepreneurs and need to obtain a Belgian VAT identification number, appoint a VAT responsible representative when not established in the EU, and charge Belgian VAT on road passenger transport services proportionally to the distance covered in Belgium (at a current Belgian VAT rate of 6%).
The new optional special VAT scheme introduces a simplified administrative procedure for foreign suppliers that are not regularly active in Belgium. The scheme is optional for suppliers of paid road passenger transport that is not exclusively supplied to business customers in Belgium and whose Belgian turnover does not exceed EUR 125,000. Foreign suppliers that opt for this special VAT scheme are exempt from periodic VAT filings. Instead, they are allowed to report and pay the Belgian VAT due via a "specific VAT return on paid passenger transport" (Form No. 799). Any input VAT is deductible in accordance with the normal rules and refunded if in excess of output VAT.
Suppliers of paid passenger transport by sea and air or transport for which the reverse charge procedure applies are excluded from this special VAT scheme.
Foreign suppliers that do not qualify or do not wish to opt for this special VAT scheme are subject to the regular VAT compliance obligations in Belgium, including the submission of periodic VAT returns and recapitulative listings and the keeping of Belgian journals of incoming and outgoing invoices.
If you have any further questions or wish to discuss the impact of this new obligation on your Belgian operations, please do not hesitate to contact Ine Lejeune on +32 (9) 268 83 00.
Belgian authorities have set down strict conditions under which GVRs can request exemption from VAT liability rules
A global VAT representative (‘GVR’), representing non-Belgian VAT-registered foreign businesses under a global VAT number (BE0796.5 of BE0796.6) for specific transactions of goods in our country is held jointly and severally liable for the Belgian VAT due on intra-Community supplies or acquisitions of goods, as well as the import and export of goods performed by their principals in Belgium where a VAT exemption cannot be proven. The legal principle has always been applicable to GVRs for each transaction of the principal on which Belgian VAT is due by the latter.
Under this liability scheme, the GVR was confronted with several difficulties. GVRs represent many foreign businesses under a single global VAT number; foreign businesses which generally only occasionally perform transactions in Belgium, among their other intra-Community supply of goods. The consequence has been that the relationship in legal, commercial and practical terms between a GVR and their principal is not “close” e.g. a lot of intermediaries can be involved. In such circumstances it may be difficult for the GVR to obtain the necessary proof of VAT exemption from the principal of the transport/dispatch of the goods from Belgium to another EU Member State or non-EU country.
The Administrative Decision no. E.T. 124.203, applicable as from 1 May 2014, lays down the principles and the strict conditions under which the VAT authorities may waive the GVR’s joint and several liabilities in respect of the Belgian VAT due on zero-rated, intra-Community supplies performed by their principal(s). Although not explicitly foreseen in the decision, in our opinion, the same principles should also apply mutatis mutandis to export supplies when issues arise relating to the proof of transport outside Belgium to a non-EU country.
The waiver of the joint and several liabilities is subject to the following cumulative conditions:
The decision issued by the Belgian VAT authorities provides clear, but also very strict guidelines for global VAT representatives. It will allow them to request exemption from their joint and several liability for Belgian VAT due on intra-Community supplies of goods (and preceding imports) performed by their principal(s) in Belgium for which later on it appears or it is alleged that the VAT exemption in Belgium is not applicable.
Full compliance with these guidelines will put the burden of proof on the principal and relieve the global VAT representative of any Belgian VAT risk in respect of those transactions. In our opinion, the same principles should also apply to export supplies even though this is not explicitly foreseen in the administrative decision.
On the other hand, non-compliance will be considered by the VAT authorities as acting in bad faith with no means of redress except for the ones against the principal based on contractual liability between parties if still attainable. More than ever, global VAT representative should review their commercial and legal arrangements (not only with their principals but also with other intermediaries involved in the supply chain), the VAT and customs back-office processes and their VAT compliance reporting, to safeguard their interests.
PwC can assist businesses, acting as global VAT representative, both in reviewing and drafting agreements with principals as well as the internal processes and VAT compliance obligations to avoid VAT risks.
If you have any further questions or wish to discuss the possible impact on your business, please do not hesitate to contact email@example.com, ITX Director (+32 3 259 32 63).
The VEA/CEB has announced the reaching of a sector-specific agreement with the VAT authorities for tax representation, now awaiting approval
The VEA/CEB broke the news to its members via email last month explaining that “In cooperation with Alfaport Antwerpen and GHA, VEA/CEB has succeeded in reaching a sector-specific agreement with the VAT authorities".
The past few months, together with the VAT authorities and the Finance Ministry, the VEA/CEB has been pushing for a review of the tax representation regime and associated liabilities. The aim has been to modernise these provisions and bring them into line with what is common practice in the shipping industry.
VEA/CEB members have been made privy to a draft copy of the agreement, the final approval of which is expected to follow shortly.
The organisation will subsequently organise information sessions to fully explain the impact of the new rules and PwC will bring you the latest as the story breaks.
FTA members operate more than 50% of the UK's heavy goods vehicles, and consign over 90% of rail freight and 70% of sea and air freight
This year’s report shines a spotlight on economy and growth, connectivity and adaptability, image, safety and sustainability, people and skills. PwC’s contribution examines the vital role of investment in infrastructure, innovation in technology and attracting, retaining and training talent.
PwC’s Intersection report highlights the weak start to 2014 M&A experienced by the transport and logistics sector with deal volumes remaining broadly stagnant. Opportunities do exist though for emerging market acquirers to consolidate fragmented transportation modes. We’re also seeing valuations for targets in advanced economies continuing to recover across most modes.