Judgment of the Court (Second Chamber) of 26 May 2005 in Case C-536/03: Reference for a preliminary ruling from the Supremo Tribunal Administrativo António Jorge Lda v Fazenda Pública (VAT — Article 19 of the Sixth VAT Directive — Deduction of input tax — Property transactions — Goods and services used for both taxable and exempt transactions — Deductible proportion)
Date: 2005-07-23
Institutions: Court of Justice
Subjects: VAT, interpretation of the law, tax exemption, tax harmonisation

23.7.2005

EN

Official Journal of the European Union

C 182/13

3. It is for the national court to determine, having regard, in particu-
lar, to the principles of equal treatment and fiscal neutrality, and
taking account of the content of the supplies of services in ques-
tion, as well as the conditions for making them, whether the recog-
nition of a private profit-making entity, which as such does not
have charitable status under domestic law, as charitable for the
purposes of the exemptions under Article 13A(1)(g) and (h) of the
Sixth Directive 77/388 exceeds the discretion granted by those
provisions to the Member States for the purposes of such recogni-
tion.

(1) OJ C 21 of 24.01.2004.

JUDGMENT OF THE COURT

(Second Chamber)

of 26 May 2005

in Case C-536/03: Reference for a preliminary ruling from
the Supremo Tribunal Administrativo António Jorge Lda v
Fazenda Pública (1)

(VAT — Article 19 of the Sixth VAT Directive — Deduction
of input tax — Property transactions — Goods and services
used for both taxable and exempt transactions — Deductible
proportion)

(2005/C 182/24)

(Language of the case: Portuguese)

In Case C-536/03: reference for a preliminary ruling under
Article 234 EC from the Supremo Tribunal Administrativo
(Portugal), made by decision of 26 November 2003, received at
the Court on 22 December 2003, in the proceedings between
António Jorge Lda and Fazenda Pública — the Court
(Second Chamber), composed of C.W.A. Timmermans, Presi-
dent of the Chamber, R. Silva de Lapuerta (Rapporteur),
J.
Makarczyk, P. Kūris and G. Arestis, Judges; C. Stix-Hackl, Advo-
cate General; R. Grass, Registrar, has given a judgment on 26
May 2005, the operative part of which is as follows:

It is contrary to Article 19(1) of Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value added
tax: uniform basis of assessment — to include, in the denominator of
the fraction making it possible to calculate the deductible proportion,
the value of work in progress carried out by a taxable person in the
course of civil construction activity, where that value does not corre-
spond to the supply of goods or the provision of services which has
already been made by the taxable person or which has given rise to

statements of account of work and/or the receipt of payments on
account.

(1) OJ C 47 of 21.02.2004.

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 June 2005

in Case C-543/03: Reference for a preliminary ruling from
the Oberlandesgericht Innsbruck in Christine Dodl, Petra
Oberhollenzer v Tiroler Gebietskrankenkasse (1)

(Regulations (EEC) Nos 1408/71 and 574/72 — Family
benefits — Child-raising allowance — Entitlement to benefits
of the same kind in the Member State of employment and the
Member State of residence)

(2005/C 182/25)

(Language of the case: German)

In Case C-543/03: reference for a preliminary ruling under
Article 234 EC from the Oberlandesgericht (Higher Regional
Court) Innsbruck (Austria), made by decision of 16 December
2003, received at the Court on 29 December 2003,
in the
proceedings between Christine Dodl, Petra Oberhollenzer
and Tiroler Gebietskrankenkasse — the Court
(Grand
Chamber), composed of V. Skouris, President, P. Jann, C.W.A.
Timmermans and A. Rosas, Presidents of Chambers, C.
Gulmann,
J.
Makarczyk, P. Kūris, E. Juhász, U. Lõhmus, E. Levits and A. Ó
Caoimh, Judges; L.A. Geelhoed, Advocate General; K. Sztranc,
Administrator, for the Registrar, gave a judgment on 7 June
2005, in which it ruled:

J.-P. Puissochet, K. Schiemann (Rapporteur),

1. A person has the status of an employed or self-employed person
within the meaning of Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security schemes to
employed persons, to self-employed persons and to members of
their families moving within the Community, as amended and
updated by Regulation (EC) No 1386/2001 of the European
Parliament and of
the Council of 5 June 2001 where he is
covered, even if only in respect of a single risk, on a compulsory or
optional basis, by a general or special social security scheme
mentioned in Article 1(a) of that regulation, irrespective of the
existence of an employment relationship. It is for the national
court to make the necessary enquiries to determine whether the
claimants in the main proceedings belonged to a branch of the
Austrian social security system during the periods in respect of
which the allowances in issue were applied for and, accordingly,
whether
they were 'employed persons' within the meaning of
Article 1(a).