15.5.2002 Official Journal of the European Communities L 128/41 COUNCIL DIRECTIVE 2002/38/EC of 7 May 2002 amending and amending temporarily Directive 77/388/EEC as regards the value added tax arrange- ments applicable to radio and television broadcasting services and certain electronically supplied services THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 93 thereof, Having regard to the proposal from the Commission (%), Having regard to the opinion of the European Parliament (%), Having regard to the opinion of the Economic and Social Committee (%), Whereas: (1) The rules currently applicable to VAT on radio and television broadcasting services and on electronically supplied services, under Article 9 of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmoni- sation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (¥), are inadequate for taxing such services consumed within the Community and for preventing distortions of competition in this area. (2)  In the interests of the proper functioning of the internal market, such distortions should be eliminated and new harmonised rules introduced for this type of activity. Action should be taken to ensure, in particular, that such services where effected for consideration and consumed by customers established in the Community are taxed in the Community and are not taxed if consumed outside the Community. (3)  To this end, radio and television broadcasting services and electronically supplied services provided from third countries to persons established in the Community or from the Community to recipients established in third countries should be taxed at the place of the recipient of the services. (4)  To define electronically supplied services, examples of such services should be included in an annex to the Directive. (5)  To facilitate compliance with fiscal obligations by opera- tors providing electronically supplied services, who are neither established nor required to be identified for tax purposes within the Community, a special scheme 1 () O] C 337 E, 28.11.2000, p. 65. ( O] C 232, 17.8.2001, p. 202. () O] C 116, 20.4.2001, p. 59. (*) OL L 145, 13.6.1977, p. 1. Directive as last amended by Council Directive 2001/115/EC (O] L 15, 17.1.2002, p. 24). should be established. In applying this scheme any oper- ator supplying such services by electronic means to non-taxable persons within the Community, may, if he is not otherwise identified for tax purposes within the Community, opt for identification in a single Member State. (6)  The non-established operator wishing to benefit from the special scheme should comply with the requirements laid down therein, and with any relevant existing provi- sion in the Member State where the services are consumed. (7)  The Member State of identification must under certain conditions be able to exclude a non-established operator from the special scheme. (8)  Where the non-established operator opts for the special scheme, any input value added tax that he has paid with respect to goods and services used by him for the purpose of his taxed activities falling under the special scheme, should be refunded by the Member State where the input value added tax was paid, in accordance with the arrangements of the thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisa- tion of the laws of the Member States relating to turn- over taxes — arrangements for the refund of value added tax to taxable persons not established in Community territory (°). The optional restrictions for refund in Article 2(2) and (3) and Article 4(2) of the same Directive should not be applied. (9 Subject to conditions which they lay down, Member States should allow certain statements and returns to be made by electronic means, and may also require that electronic means are used. (10)  Those provisions pertaining to the introduction of elec- tronic tax returns and statements should be adopted on a permanent basis. It is desirable to adopt all other provisions for a temporary period of three years which may be extended for practical reasons but should, in any event, based on experience, be reviewed within three years from 1 July 2003. (11)  Directive 77/388/EEC should therefore be amended accordingly, () O] L 326, 21.11.1986, p. 40.