Finanzamt Düsseldorf-Süd v SALIX Grundstücks-Vermietungsgesellschaft mbH & Co. Objekt Offenbach KG.
Date: 2009-06-04
37. First of all, it is apparent from the first subparagraph of Article 13B(b) of the Sixth Directive that the letting of premises and sites for parking vehicles is not included amongst the exempted activities. Consequently, such an activity cannot be treated under the fourth subparagraph of Article 4(5) of the Sixth Directive as an activity engaged in as a public authority within the meaning of the first subparagraph of that provision, if it does not in itself satisfy that condition (see, to that effect, Case C-446/98 Fazenda Pública  [2000] ECR I-11435, paragraph 44).
38. However, the concept of ‘letting of immovable property’, which is the subject of the exemption laid down in Article 13B(b) of the Sixth Directive, necessarily also encompasses, in addition to the letting of the property which is the principal subject of the transaction, the letting of all property which is accessory to it. Thus, the letting of premises and sites for parking vehicles cannot be excluded from the exemption where the letting thereof is closely linked to the letting of immovable property to be used for another purpose, so that the two lettings constitute a single economic transaction (Case 173/88 Henriksen  [1989] ECR 2763, paragraphs 14 and 15).
40. As regards the question whether the Member States can rely on the option provided for by the fourth subparagraph of Article 4(5) of the Sixth Directive only if they have previously adopted an express legal provision to that effect, it should be pointed out that, according to the settled case-law of the Court, the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner (Case C-131/88 Commission  v Germany  [1991] ECR I-825, paragraph 6; Case C-49/00 Commission  v Italy  [2001] ECR I-8575, paragraph 21; and Case C-410/03 Commission  v Italy  [2005] ECR I-3507, paragraph 60).
41. It is particularly important, so as to conform with the requirement of legal certainty, that, where that directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and rely on them, if necessary, before the national courts (see Case Commission  v Germany , paragraph 6; Case C‑49/00 Commission  v Italy , paragraphs 21 and 22; and Case C‑410/03 Commission  v Italy , paragraph 60).
42. Each Member State is bound to implement the provisions of directives in a manner that fully meets the requirements of clarity and certainty in legal situations imposed by the Community legislature, in the interests of the persons concerned established in the Member States. To that end, the provisions of a directive must be implemented with unquestionable legal certainty and with the requisite specificity, precision and clarity (Case C-354/99 Commission  v Ireland  [2001] ECR I-7657, paragraph 27 and the case-law cited).
43. In particular, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the EC Treaty (see Case C-334/94 Commission  v France  [1996] ECR I-1307, paragraph 30, and Case C-197/96 Commission  v France  [1997] ECR I-1489, paragraph 14).
44. While it is for the referring court to assess whether the conditions of transposition, set out in paragraphs 40 to 43 of the present judgment, have been fulfilled in the main proceedings, the Court may nevertheless, in order to give the national court a useful answer, provide it with all the guidance that it deems necessary (see, in particular, Case C-49/07 MOTOE  [2008] ECR I-0000, paragraph 30, and Case C‑414/07 Magoora  [2008] ECR I-0000, paragraph 33).
51. In that connection, it must be pointed out that the fourth subparagraph of Article 4(5) of the Sixth Directive provides that the Member States have the option, and not the obligation, to consider the activities of bodies governed by public law exempted under Article 13 or Article 28 of the Sixth Directive as activities which they engage in as public authorities. Consequently, the transposition of that provision into domestic law is not obligatory.
52. It follows that, in order to use the option provided for by that provision, the Member States are required to make a choice to rely on it.
55. Accordingly, it must be held that, in order to rely on the option provided for in the fourth subparagraph of Article 4(5) of the Sixth Directive, the Member States must make a specific choice to that effect. They must therefore provide that the specified activities of the bodies governed by public law which are exempt under Article 13 or Article 28 of the Sixth Directive are considered to be activities which they engage in as public authorities.
56. It should be pointed out that the Member States may choose the legislative technique which they regard as the most appropriate. Thus they may, for example, merely incorporate into national law the form of words used in the Sixth Directive or an equivalent expression or they may draw up a list of activities of bodies governed by public law exempted under Article 13 or Article 28 of the Sixth Directive which are considered to be activities of the public authority (see, to that effect, Joined Cases 231/87 and 129/88 Comune di Carpaneto Piacentino and Others  [1989] ECR 3233, paragraph 18).
57. An executive authority may be authorised by a legal provision to specify the activities of bodies governed by public law exempted under Article 13 or Article 28 of the Sixth Directive which are considered to be activities of public authorities, provided that its decisions of application have an unquestionable binding force, comply with the requirements that they be specific, precise and clear so as to guarantee legal certainty and may be reviewed by the national courts (see, by analogy, Fazenda Pública , paragraph 35).
64. It is, therefore, for the referring court to ascertain, as a preliminary point, whether the letting activity of the IHK constitutes an activity engaged in by a body governed by public law acting as a public authority within the meaning of the first or fourth subparagraphs of Article 4(5) of the Sixth Directive. It is only if such is the case that the second subparagraph of Article 4(5) is applicable (see, to that effect, Fazenda Pública , paragraph 43, and Case C-288/07 Isle of Wight Council and Others  [2008] ECR I‑0000, paragraphs 30 to 32).
67. Second, it should be recalled that, by providing for a derogation from treatment as non-taxable persons for bodies governed by public law in respect of the activities or transactions in which they engage as public authorities, the second subparagraph of Article 4(5) of the Sixth Directive aims to restore the general rule set out in Articles 2(1) and 4(1) and (2) of that directive, according to which any activity of an economic nature is, in principle, to be subject to VAT (see Isle of Wight Council and Others , paragraph 38).
68. Consequently, the second subparagraph of Article 4(5) of the Sixth Directive cannot be construed narrowly (see Isle of Wight Council and Others , paragraph 60).
70. Fourth, it should be recalled that the right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, in particular, Case C-62/93 BP Supergas  [1995] ECR I‑1883, paragraph 18; Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others  [2000] ECR I-1577, paragraph 43; and Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 47).
71. The deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, in particular, Case C-408/98 Abbey National  [2001] ECR I-1361, paragraph 24; Case C-25/03 HE  [2005] ECR I-3123, paragraph 70; and Kittel and Recolta Recycling , paragraph 48).
72. It follows that the right to deduct is, in principle, applicable to the entire chain of supply of goods and services performed by taxable persons acting as such for the purpose of the economic activities of other taxable persons (see Joined Cases C‑354/03, C-355/03 and C-484/03 Optigen and Others  [2006] ECR I‑483, paragraph 52, and Kittel and Recolta Recycling , paragraph 45).