# C_2004118EN.01001801.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 118/18 |
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30.4.2004

EN

Official Journal of the European Union

C 118/18

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

29 April 2004

in Joined Case C-487/01 and C-7/02 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Gemeente Leusden (C-487/01), Holin Groep BV cs (C-7/02) v Staatssecretaris van Financiën (1)

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(Turnover taxes - Common system of value added tax - Article 17 of the Sixth Directive 77/388/EEC - Deduction of input tax - Amendment of national legislation withdrawing the right to opt for taxation of lettings of immovable property - Adjustment of deductions - Application to current leases)

(2004/C 118/31)

Language of the case: Dutch

In Joined Cases C-487/01 and C-7/02: REFERENCE to the Court under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between Gemeente Leusden (C-487/01), Holin Groep BV cs (C-7/02) and Staatssecretaris van Financiën - on the interpretation of Articles 5(7)(a), 17 and 20(2) of the 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 (OJ 1977 L 145, p. 1) and the principles of the protection of legitimate expectations and legal certainty - the Court, composed of: P. Jann, acting for the President of the Fifth Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:

| 1) | Articles 17 and 20(2) of the 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, interpreted in accordance with the principles of the protection of legitimate expectations and legal certainty do not preclude the withdrawal by a Member State of the right to opt for taxation of lettings of immovable property which results in the adjustment of deductions made in respect of the immovable property acquired as capital goods which is let pursuant to Article 20 of the Sixth Directive 77/388.
  Where a Member State withdraws the right to opt for taxation of lettings of immovable property, it must take account of the legitimate expectation of its taxable persons when determining the arrangements for implementing the legislative amendment. The repeal of legislation from which a taxable person has derived an advantage in paying less tax, without there being any abuse, cannot however, as such, breach a legitimate expectation based on Community law. |
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1)

Articles 17 and 20(2) of the 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, interpreted in accordance with the principles of the protection of legitimate expectations and legal certainty do not preclude the withdrawal by a Member State of the right to opt for taxation of lettings of immovable property which results in the adjustment of deductions made in respect of the immovable property acquired as capital goods which is let pursuant to Article 20 of the Sixth Directive 77/388.

Where a Member State withdraws the right to opt for taxation of lettings of immovable property, it must take account of the legitimate expectation of its taxable persons when determining the arrangements for implementing the legislative amendment. The repeal of legislation from which a taxable person has derived an advantage in paying less tax, without there being any abuse, cannot however, as such, breach a legitimate expectation based on Community law.

| 2) | Article 5(7)(a) of the Sixth Directive 77/388 concerns the application of goods by a taxable person for the purposes of his business and not a legislative amendment withdrawing the right to opt for taxation of a financial transaction which is generally exempt. |
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2)

Article 5(7)(a) of the Sixth Directive 77/388 concerns the application of goods by a taxable person for the purposes of his business and not a legislative amendment withdrawing the right to opt for taxation of a financial transaction which is generally exempt.

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(1)  OJ C 44 of 16.2.2002

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OJ C 109 of 4.5.2002

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