T.G. van Laarhoven v Staatssecretaris van Financiën.
Date: 2012-02-16
20. It should be borne in mind, in that regard, that the second subparagraph of Article 17(6) of the Sixth Directive, which is a derogation, authorises the Member States to retain their existing legislation as at the date of entry into force of the Sixth Directive in regard to exclusion from the right of deduction until the Council adopts the provisions envisaged by the first subparagraph of Article 17(6) (see Case C‑345/99 Commission v France [2001] ECR I‑4493, paragraph 19, and Case C‑371/07 Danfoss and AstraZeneca  [2008] ECR I‑9549, paragraph 28).
25. That process may be regarded as complying with settled case-law of the Court of Justice, according to which, where capital goods are used both for business and for private purposes, the taxable person has the choice, for the purposes of VAT, of (i) allocating those goods wholly to the assets of his business, (ii) retaining them wholly within his private assets, thereby excluding them entirely from the system of VAT, or (iii) integrating them into his business only to the extent to which they are actually used for business purposes (see Case C‑434/03 Charles and Charles-Tijmens [2005] ECR I‑7037, paragraph 23 and case-law cited, and Case C‑72/05 Wollny [2006] ECR I‑8297, paragraph 21).
26. Should the taxable person choose to treat capital goods used for both business and private purposes as business goods, the input VAT on the acquisition of those goods is, in principle, immediately deductible in full (see Charles and Charles-Tijmens , paragraph 24, and Wollny , paragraph 22).
27. However, in such a case, the right to immediately and fully deduct VAT paid at the time of the acquisition leads to the corresponding obligation to pay VAT on private use of the business assets (see Charles and Charles-Tijmens , paragraph 30, and Wollny , paragraph 24). To that end, Article 6(2)(a) of the Sixth Directive treats use for private purposes in the same way as the supply of services for consideration, so that the taxable person must, in accordance with Article 11A(1)(c) of the same directive, pay VAT on expenses relating to that use (see Case C‑269/00 Seeling  [2003] ECR I‑4101, paragraphs 42 and 43).
29. The fact that the national court has, formally speaking, worded the questions referred for a preliminary ruling with reference to a provision of the Sixth Directive applicable to different situations does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in the wording of its questions (see, to that effect, Case C‑368/09 Pannon Gép Centrum  [2010] ECR I‑7467, paragraph 33 and case-law cited).
Consideration of the questions referred
31. As regards that taxation and as was stated at paragraph 27 of this judgment, Article 11A(1)(c) of the Sixth Directive provides that the taxation must be made on the basis of the full cost to the taxable person of providing the services at issue (see Charles and Charles-Tijmens , paragraph 25, and Case C‑460/07 Puffer [2009] ECR I‑3251, paragraph 41).
35. Second, the determination of the full cost to the taxable person must avoid giving a taxable person who uses an asset forming part of his business also for private use an unjustified economic advantage by comparison with a final consumer, which would result from the fact that that taxable person deducted VAT to which he was not entitled (see, to that effect, Wollny , paragraph 35).
36. In those circumstances, it is for the national court, which has sole jurisdiction to interpret its national law, to determine, having regard to the pointers provided by the Court, whether the methods of calculating the taxable amount of VAT payable for private use of the goods forming part of the assets of the business, provided for by the Netherlands fiscal legislation, may be considered to be in accordance with the concept of ‘the full cost to the taxable person of providing the services’ within the meaning of Article 11A(1)(c) of the Sixth Directive.
37. To that end, it is for the national court to interpret domestic law, so far as possible, in the light of the wording and the purpose of that provision of the Sixth Directive with a view to achieving the results sought by the latter, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive, setting aside, if necessary, any contrary provision of national law (see Case C‑414/07 Magoora [2008] ECR I‑10921, paragraph 44 and case-law cited).