# C_2009090EN.01000901.xml

| 18.4.2009 | EN | Official Journal of the European Union | C 90/9 |
| --- | --- | --- | --- |

18.4.2009

EN

Official Journal of the European Union

C 90/9

---

Reference for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands), lodged on 26 January 2009 — Oracle Nederland BV v Inspecteur der Belastingdienst Utrecht-Gooi/kantoor Utrecht

(Case C-33/09)

2009/C 90/14

Language of the case: Dutch

Referring court

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Parties to the main proceedings

Appellant: Oracle Nederland BV

Appellant:

Respondent: Inspecteur der Belastingdienst Utrecht-Gooi/kantoor Utrecht

Respondent:

Questions referred

Questions referred

| 1. | Are Article 11(4) of the Second Directive (1) and Article 17(6) of the Sixth Directive (2) to be interpreted as meaning that a Member State wishing to make use of the possibility offered by those articles of (retaining) the exclusion of deduction in respect of categories of expenditure described as:






  — | ‘the provision of food and drink to the staff of the trader’; |
| --- | --- | --- |

1.

Are Article 11(4) of the Second Directive (1) and Article 17(6) of the Sixth Directive (2) to be interpreted as meaning that a Member State wishing to make use of the possibility offered by those articles of (retaining) the exclusion of deduction in respect of categories of expenditure described as:

1

2

—

‘the provision of food and drink to the staff of the trader’;

| — | ‘giving business gifts or other gifts to persons in relation to whom, if they had been charged or were to be charged the relevant turnover tax, such tax would be entirely or mainly non-deductible’; |
| --- | --- |

—

‘giving business gifts or other gifts to persons in relation to whom, if they had been charged or were to be charged the relevant turnover tax, such tax would be entirely or mainly non-deductible’;

| — | ‘providing the staff of the trader with accommodation’; |
| --- | --- |

—

‘providing the staff of the trader with accommodation’;

| — | ‘providing the staff of the trader with opportunities for recreation’ |
| --- | --- |

—

‘providing the staff of the trader with opportunities for recreation’

has satisfied the condition requiring the designation of a category of adequately defined goods and services?

| 2. | If the answer to the first question is in the affirmative for one of the categories listed, do Article 6(2) and Article 17(2) and (6) of the Sixth Directive leave room for a national statutory provision, such as that which is the subject of the dispute, which was enacted before the Sixth Directive entered into force and on the basis of which a taxable person may not deduct in full the turnover tax paid on the acquisition of certain goods or services because a fee was charged in respect thereof which incurred turnover tax, but may only deduct an amount equivalent to the amount of tax owed in respect of the transaction concerned? |
| --- | --- |

2.

If the answer to the first question is in the affirmative for one of the categories listed, do Article 6(2) and Article 17(2) and (6) of the Sixth Directive leave room for a national statutory provision, such as that which is the subject of the dispute, which was enacted before the Sixth Directive entered into force and on the basis of which a taxable person may not deduct in full the turnover tax paid on the acquisition of certain goods or services because a fee was charged in respect thereof which incurred turnover tax, but may only deduct an amount equivalent to the amount of tax owed in respect of the transaction concerned?

| 3. | If, in respect of ‘the provision of food and drink’, the condition is satisfied which requires the designation of a category of adequately defined goods and services, does Article 17(6) of the Sixth Directive preclude an amendment to an existing exclusion of the deduction, from which amendment it seems likely that in principle the scope of the exclusion will be restricted but where it cannot be ruled out that in an individual case in a particular year the scope of the restriction of the deduction might be extended, in particular through the fixed-rate nature of the amended provision? |
| --- | --- |

3.

If, in respect of ‘the provision of food and drink’, the condition is satisfied which requires the designation of a category of adequately defined goods and services, does Article 17(6) of the Sixth Directive preclude an amendment to an existing exclusion of the deduction, from which amendment it seems likely that in principle the scope of the exclusion will be restricted but where it cannot be ruled out that in an individual case in a particular year the scope of the restriction of the deduction might be extended, in particular through the fixed-rate nature of the amended provision?

---

(1)  Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967, p. 16).

1

(2)  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).

2

---