# C_2007315EN.01002602.xml

| 22.12.2007 | EN | Official Journal of the European Union | C 315/26 |
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22.12.2007

EN

Official Journal of the European Union

C 315/26

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 October 2007 — Sandra Puffer v Unabhängiger Finanzsenat, Außenstelle Linz

(Case C-460/07)

(2007/C 315/46)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Sandra Puffer

Applicant:

Defendant: Unabhängiger Finanzsenat, Außenstelle Linz

Defendant:

Questions referred

| 1. | Does Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) (‘the Sixth Directive’), in particular Article 17 thereof, infringe fundamental rights under Community law (the Community-law principle of equal treatment) because it has the effect of enabling persons liable to pay value added tax (VAT) to acquire ownership of residential properties for their own private residential purposes (consumption) for approximately 5 % less than other EU citizens, with the final value of that advantage rising indefinitely in line with the level of acquisition and construction costs of the residential property in question? Does such an infringement arise also as a result of the fact that persons liable to pay VAT can acquire ownership of residential properties used for their own private residential purposes — where such properties are used, even minimally, in connection with their business — for approximately 5 % less than other taxable persons who do not use their private dwellings, even minimally, in connection with their business? |
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1.

Does Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) (‘the Sixth Directive’), in particular Article 17 thereof, infringe fundamental rights under Community law (the Community-law principle of equal treatment) because it has the effect of enabling persons liable to pay value added tax (VAT) to acquire ownership of residential properties for their own private residential purposes (consumption) for approximately 5 % less than other EU citizens, with the final value of that advantage rising indefinitely in line with the level of acquisition and construction costs of the residential property in question? Does such an infringement arise also as a result of the fact that persons liable to pay VAT can acquire ownership of residential properties used for their own private residential purposes — where such properties are used, even minimally, in connection with their business — for approximately 5 % less than other taxable persons who do not use their private dwellings, even minimally, in connection with their business?

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| 2. | Does national legislation implementing the Sixth Directive, in particular Article 17 thereof, infringe Article 87 EC because, while the legislation does allow persons liable to pay VAT who carry out taxable transactions the advantage referred to in Question 1 in respect of properties which they use for private residential purposes, that advantage is not available to taxable persons whose transactions are exempt? |
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2.

Does national legislation implementing the Sixth Directive, in particular Article 17 thereof, infringe Article 87 EC because, while the legislation does allow persons liable to pay VAT who carry out taxable transactions the advantage referred to in Question 1 in respect of properties which they use for private residential purposes, that advantage is not available to taxable persons whose transactions are exempt?

| 3. | Does Article 17(6) of the Sixth Directive continue to have effect if the national legislature amends a national provision for the exclusion of deductions (in this case, Paragraph 12(2)(1) of the Austrian Umsatzsteuergesetz (UStG) (Law on Turnover Tax) 1994), which is based on Article 17(6) of the Sixth Directive, with the express intention of retaining that exclusion of deductions, and the Austrian UStG would indeed result in the retention of an exclusion of deductions, but — owing to an error in the interpretation of Community law (in this case Article 13B(b) of the Sixth Directive) which was only subsequently identified — the national legislature introduced a provision which, viewed in isolation, would, according to Community law (Article 13B(b) of the Sixth Directive as interpreted in Case C-269/00 Seeling [2003] ECR I-4101), allow a deduction to be made? |
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3.

Does Article 17(6) of the Sixth Directive continue to have effect if the national legislature amends a national provision for the exclusion of deductions (in this case, Paragraph 12(2)(1) of the Austrian Umsatzsteuergesetz (UStG) (Law on Turnover Tax) 1994), which is based on Article 17(6) of the Sixth Directive, with the express intention of retaining that exclusion of deductions, and the Austrian UStG would indeed result in the retention of an exclusion of deductions, but — owing to an error in the interpretation of Community law (in this case Article 13B(b) of the Sixth Directive) which was only subsequently identified — the national legislature introduced a provision which, viewed in isolation, would, according to Community law (Article 13B(b) of the Sixth Directive as interpreted in Case C-269/00 Seeling [2003] ECR I-4101), allow a deduction to be made?

Seeling

| 4. | If the answer to Question 3 is in the negative:
  Could the effect of an exclusion of deductions (Paragraph 12(2)(2)(a) of the UStG 1994) which is based on the ‘standstill clause’ (Article 17(6) of the Sixth Directive) be restricted if the national legislature amends one of two overlapping national provisions excluding deductions (Paragraph 12(2)(2)(a) of the UStG 1994 and Paragraph 12(2)(1) of the UStG 1994) and subsequently does not proceed further because it finds that it has erred in law? |
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4.

If the answer to Question 3 is in the negative:

Could the effect of an exclusion of deductions (Paragraph 12(2)(2)(a) of the UStG 1994) which is based on the ‘standstill clause’ (Article 17(6) of the Sixth Directive) be restricted if the national legislature amends one of two overlapping national provisions excluding deductions (Paragraph 12(2)(2)(a) of the UStG 1994 and Paragraph 12(2)(1) of the UStG 1994) and subsequently does not proceed further because it finds that it has erred in law?

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(1)  OJ 1977 L 145, p. 1.

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