Opinion of the Advocate General — ECLI:EU:C:2005:48
Date: 2005-01-20
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — Capital goods used in part for business purposes and in part for private purposes — National rules which predate the Sixth Directive precluding allocation of goods wholly to the business and the right to deduct in full the tax due on their acquisition — Not permissible (Council Directives 67/228, Art. 11, and 77/388, Arts 6(2) and 17(2) and (6)) Article 6(2) and Article 17(2) and (6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, must be interpreted as precluding national legislation adopted before that directive came into force which does not make it possible for a taxable person to allocate capital goods used in part for business purposes and in part for purposes other than those of his business wholly to his business and, where appropriate, to deduct immediately and in full the value added tax due on the acquisition of those goods. It is true that Article 17(6) of the Sixth Directive makes it possible for a Member State to retain a national system which existed before that directive came into force. However, that provision presupposes that the exclusions which those States may retain pursuant to it were lawful under Second Directive 67/228, which predates the Sixth Directive. In that respect, by providing that the Member States could exclude from the deduction system ‘certain goods and services … in particular those capable of being exclusively or partially used for the private needs of the taxable person or of his staff’, Article 11(4) of the Second Directive did not confer on Member States an unfettered discretion to exclude all and any goods and services from the system of the right of deduction, in particular, all goods in so far as they are used for the private purposes of the taxable person. (see paras 31-34, 36, operative part)