Judgment — ECLI:EU:C:2006:22
Date: 2006-01-12
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Concepts: Leasing or letting of immovable property;Right of option for taxation in respect of certain transactions
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Tax provisions – Harmonisation of legislation – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive (Council Directive 77/388, Art. 13(C)) 2. Tax provisions – Harmonisation of legislation – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive (Council Directive 77/388, Art. 13(B)(b), and (C)(a)) 1. Member States, when giving their taxable persons the right to opt for taxation under Article 13(C) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, may make a distinction by reference to types of transactions or groups of taxable persons provided that they observe the general objectives and principles of the Sixth Directive, in particular the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for. (see para. 35, operative part 1) 2. It is for the national court to determine whether national legislation which, by exempting generally the transactions of non-profit-making sports clubs, restricts their right to opt for taxation of leasing and letting transactions exceeds the discretion conferred on the Member States, having regard in particular to the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for. Since Article 13(C) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes does not specify on what conditions and by what means the scope of this right of option for taxation of leasing and letting transactions may be restricted, it is for each Member State to specify, in its national law, the scope of this right of option and to lay down the rules pursuant to which certain taxable persons may benefit from the right. Nevertheless, Article 13(C) of the Sixth Directive does not confer upon the Member States the right to place conditions on or to restrict in any manner whatsoever the exemptions provided for by part B of that Article 13, but merely reserves the right to the Member States to allow, to a greater or lesser degree, persons entitled to those exemptions to opt for taxation themselves, if they consider that it is in their interest to do so. (see paras 42-43, 49, operative part 2)