BLV Wohn- und Gewerbebau GmbH v Finanzamt Lüdenscheid.
Date: 2012-12-13
25. However, settled case-law has established that, in the absence of any definition of the term ‘construction work’, the meaning and scope of that term must be determined by reference to the general context in which it is used and its usual meaning in everyday language (see, to that effect, Case C-431/04 Massachusetts Institute of Technology [2006] ECR I-4089, paragraph 17 and the case-law cited). Moreover, in construing a provision of EU law, it is necessary to consider the objectives pursued by the legislation in question and its effectiveness (see inter alia, to that effect, Case C-19/08 Petrosian [2009] ECR I-495, paragraph 34 and the case-law cited).
29. Furthermore, it is common ground that the categorisation of a particular transaction as the ‘supply of goods’ or as the ‘supply of services’ constitutes a complex appraisal which must in principle – as the Advocate General emphasises in point 30 et seq. of his Opinion – be based on a case-by-case analysis (see also, to that effect, Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09 Bog and Others [2011] ECR I-1457, paragraph 61 et seq.).
33. That conclusion is unaffected by the fact that point (1) of Article 2 of Decision 2004/290, being a derogation from the general rule laid down in the first sentence of Article 21(1)(a) of the Sixth VAT Directive, must be narrowly construed. Although it is settled law that, in matters of VAT, provisions which are in the nature of exceptions to a principle must be narrowly construed, it is nonetheless appropriate to ensure that the exception is not deprived of its effectiveness ( Bog and Others , paragraph 84 and the case-law cited; see also, to that effect, Case C-540/09 Skandinaviska Enskilda Banken [2011] ECR I-1509, paragraph 20 and the case-law cited).
40. In that connection, the Court’s case-law should be borne in mind, according to which the derogating measures referred to in Article 27(1) of the Sixth Directive, which are allowed inter alia ‘in order … to prevent certain types of tax evasion or avoidance’, must be interpreted strictly and must also be necessary and appropriate for the purposes of attaining the specific objective which they pursue and affect as little as possible the objectives and principles of that directive (See Case C-489/09 Vandoorne  [2011] ECR I-225, paragraph 27 and the case-law cited).
41. In addition, and as the Court has already explained in a different context, restriction of the application of an exception to a general VAT rule to concrete and specific aspects is consistent with the principle that exemptions or derogations must be narrowly construed (see, to that effect, Case C-384/01 Commission v France [2003] ECR I-4395, paragraph 28), subject to respect for the principle of fiscal neutrality inherent in the common system of VAT (Case C-442/05 Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien [2008] ECR I-1817, paragraph 43; see also, to that effect, Case C-94/09 Commission v France [2010] ECR I-4261, paragraph 30).
47. In that regard, it should be borne in mind, first of all, that settled case-law has established that EU legislation must be certain and its application foreseeable by those subject to it. That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them (see Case C-288/07 Isle of Wight Council and Others  [2008] ECR I-7203, paragraph 47 and the case-law cited). The principle of legal certainty is binding on every national authority responsible for applying EU law (see Case C-347/06 ASM Brescia  [2008] ECR I-5641, paragraph 65 and the case-law cited).