Opinion of the Advocate General — ECLI:EU:C:2003:150
Date: 2003-03-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Special derogating measures – Decision 2000/186 authorising a flat-rate limit on the right to deduct – Breach of the adoption procedure or of substantive requirements – Absence – Retroactive effect – Breach of the principle of the protection of legitimate expectations (Council Directive 77/388, Art. 27; Council Decision 2000/186, Arts 2 and 3) Decision 2000/186 authorising the Federal Republic of Germany to apply measures derogating from Articles 6 and 17 of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, adopted on the basis of Article 27 of that directive, is intended, inter alia, to limit to 50% the right to deduct the value added tax charged on expenditure on vehicles not used exclusively for business purposes. The fact that that decision was adopted after derogating measures had been taken by the German authorities, that the Federal Republic of Germany did not publish its request for authorisation to introduce those measures and that the Council inferred from the terms in which the request for authorisation was couched that its intended objective was to simplify the procedure for charging the tax without that objective having been expressly referred to in that request, does not render the procedure leading to the adoption of the decision irregular. Moreover, Article 2 of that decision, which authorises a flat-rate limit on permitted deductions, set at 50% of the amount paid by way of input value added tax, meets the substantive requirements of Article 27(1) of the Sixth Directive. In particular, the Council was entitled to consider that that limitation constituted a necessary and appropriate means of preventing tax evasion and avoidance and of simplifying the procedures for charging value added tax. By contrast, insofar as it provides for the authorisation granted by the Council to the Federal Republic of Germany to have retroactive effect, Article 3 of Decision 2000/186 infringes the principle of the protection of legitimate expectations and is therefore invalid. That provision authorised the introduction of a national derogating measure imposing a limit on the deduction of the tax before that measure had been authorised by the Council and at a time when those concerned were entitled to continue to believe that the rule that whole of the tax could be deducted was applicable. (see paras 23, 25, 30-31, 39-41, 43, 60, 70, operative part 1-3)