2004/817/EC: Council Decision of 19 November 2004 authorising Germany to apply a measure derogating from Article 17 of the Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes
Date: 2004-11-19
Institutions: Council of the European Union
Subjects: Germany, VAT, derogation from EU law, tax harmonisation, tax system

2.12.2004

EN

Official Journal of the European Union

L 357/33

COUNCIL DECISION

of 19 November 2004

authorising Germany to apply a measure derogating from Article 17 of the Sixth Directive
77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes

(2004/817/EC)

THE COUNCIL OF THE EUROPEAN UNION,

(5)

Having regard to the Treaty
Community,

establishing the European

Having regard to the Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of
the
Member States relating to turnover taxes — Common system
of value added tax: uniform basis of assessment (1), and in
particular Article 27(1) thereof,

the laws of

Having regard to the proposal from the Commission,

In its recent judgment of 29 April 2004 in case C-17/01,
the Court decided that consideration of the procedure
prior to the adoption of Decision 2000/186/EC of 28
February 2000 had disclosed no irregularity such as to
affect
that decision. Germany should
therefore be authorised to apply the simplification
measure during a further period of
time until 31
December 2009.

the validity of

(6)

The derogation will not adversely affect the Commu-
nities' own resources from VAT,

Whereas:

HAS ADOPTED THIS DECISION:

(1)

(2)

(3)

In a letter registered by the Commission’s Secretariat-
General on 22 March 2004 the German authorities
requested authorisation to continue to apply a derogation
which had been granted by Article 1 of Council Decision
2000/186/EC (2).

The other Member States were informed of the request
on 6 August 2004.

The derogating measure is intended to exclude expen-
diture on goods and services completely, from the right
to deduct VAT when the goods and services are used
more than 90 % for the private purposes of the taxable
person, or of his
for non-business
purposes in general. This measure is a derogation from
Article 17 of Directive 77/388/EEC, as amended by
that Directive, and is justified by the
Article 28f of
need to simplify the procedure for charging VAT;
it
affects the amount of tax due at the final consumption
stage only to a negligible extent.

employees, or

(4)

The authorisation expired on 30 June 2004 (3), although
the legal situation and the facts which justified appli-
cation of the simplification measure in question have
not changed and continue to exist.

Article 1

By way of derogation from Article 17(2) of Directive
77/388/EEC Germany is authorised to exclude expenditure on
goods and services from the right to deduct VAT when the
goods and services in question are used more than 90 % for
the private purposes of a taxable person or of his employees, or,
more generally, for non-business purposes.

Article 2

This Decision shall apply until 31 December 2009.

Article 3

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 19 November 2004.

For the Council
The President

J. P. H. DONNER

(1) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive

2004/66/EC (OJ L 168, 1.5.2004, p. 35).

(2) OJ L 59, 4.3.2000, p. 12.
(3) Decision 2003/354/EC (OJ L 123, 17.5.2003, p. 47).