Opinion of the Advocate General — ECLI:EU:C:2012:564
Date: 2012-09-12
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 13 December 2012 1. EU law — Interpretation — Methods — Literal, systematic or teleological interpretation — Derogation from a general rule — Restrictive interpretation — Limit — Effectiveness of that derogation 2. Harmonisation of fiscal legislation — Common system of value added tax — Persons liable to pay the tax — National measures derogating therefrom — Decision 2004/290 authorising Germany to designate the recipient of the construction work as the person liable to pay the tax — ‘Construction work’ — Supply of goods — Included (Council Directive 77/388, Arts 5(1), 6(1), 21 and 27(1); Council Decision 2004/290, Art. 2(1)) 3. Harmonisation of fiscal legislation — Common system of value added tax — Persons liable to pay the tax — National measures derogating therefrom — Decision 2004/290 authorising Germany to designate the recipient of the construction work as the person liable to pay the tax — Partial exercise of the authorisation for certain subcategories of work and supplies (Council Directive 77/388, Art. 21 and 27(1); Council Decision 2004/290) 1. See the text of the decision. (see paras 25, 33) 2. Point (1) of Article 2 of Decision 2004/290 authorising Germany to apply a measure derogating from Article 21 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to the effect that the term ‘construction work’, as used in that provision, covers the supply of goods within the meaning of Article 5(1) of that directive, in addition to the transactions to be regarded as supplies of services, as defined in Article 6(1) of the Sixth Directive. (see para. 35, operative part 1) 3. Decision 2004/290 authorising Germany to apply a measure derogating from Article 21 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to the effect that it is open to the Federal Republic of Germany to avail itself only partially of the authorisation granted by that decision, exercising it in respect of certain subcategories, such as particular types of construction work, and in respect of supplies to certain recipients. When establishing those subcategories, that Member State is required to respect the principle of fiscal neutrality and the general principles of EU law and, in particular, the principles of proportionality and legal certainty. It is for the referring court to determine, taking into account all the relevant facts and points of law, whether that is the position in the case before it and, if appropriate, to take the measures necessary to remedy the harmful consequences brought about by the application of the provisions at issue in a manner inconsistent with the principles of proportionality or legal certainty. (see para. 50, operative part 2)