Jyske Finans A/S v Skatteministeriet.
Date: 2005-12-08
21. It should be noted at the outset that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since these exemptions constitute exceptions to the general principle, in accordance with Article 2 of that directive, that VAT is to be levied on all goods or services supplied for consideration by a taxable person acting as such (see, in particular, Case C-8/01 Taksatorringen  [2003] ECR I-13711, paragraph 36, and Case C-428/02 Fonden Marselisborg Lystbådehavn  [2005] ECR I-1527, paragraph 29).
22. It should also be borne in mind that, under Article 17(6) of the Sixth Directive, the Member States are authorised to retain their existing legislation as at the date of entry into force of that directive in regard to exclusion from the right of deduction until such time as the Council has adopted the provisions envisaged by that article (see Case C-345/99 Commission  v France  [2001] ECR I-4493, paragraph 19).
23. Since none of the proposals put to the Council by the Commission under the first subparagraph of Article 17(6) of the Sixth Directive has been adopted by the Council, the Member States may retain their existing legislation in regard to exclusion from the right to deduct VAT until such time as the Community legislature has established a Community system of exclusions and brought about the progressive harmonisation of national VAT legislation ( Commission  v France , cited above, paragraph 20). Community law therefore does not yet contain any provision listing the expenditure excluded from the right to deduct VAT.
24. The exemption provided for by Article 13B(c) of the Sixth Directive therefore can apply only to supplies of goods on the acquisition of which value added tax did not become deductible in accordance with national legislation. The terms of that article are not capable, in that regard, of any other interpretation which would allow a taxable person, who could not take advantage of such an exemption, to avoid double taxation.
31. It must be noted in that regard that it is settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in all the Community languages (see, to that effect, inter alia, Case 19/67 Van der Vecht  [1967] ECR 345, 354; Case C-219/95 P Ferriere Nord  v Commission  [1997] ECR I-4411, paragraph 15; and Case C-371/02 Björnekulla Fruktindustrier  [2004] ECR I-5791, paragraph 16). Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C-437/97 EKW and Wein & Co  [2000] ECR I-1157, paragraph 42, and Case C-1/02 Borgmann  [2004] ECR I‑3219, paragraph 25).
34. It should be borne in mind that, in determining the scope of a provision of Community law, its wording, context and objectives must all be taken into account (Case C-162/91 Tenuta il Bosco  [1992] ECR I-5279, paragraph 11; Case C-315/00 Maierhofer  [2003] ECR I-563, paragraph 27; and Case C-321/02 Harbs  [2004] ECR I-7101, paragraph 28).
35. It is true that the arrangements for the taxation of the profit margin made by the taxable dealer on the supply of second-hand goods, works of art, collectors’ items and antiques constitute a special arrangement for VAT – derogating from the general scheme of the Sixth Directive – which, like the other special arrangements provided for in Articles 24, 25 and 26 of that directive, must be applied only to the extent necessary to achieve their objective (see, respectively, for the application of the arrangements provided for in Article 26 and Article 25, Joined Cases C-308/96 and C-94/97 Madgett and Baldwin  [1998] ECR I‑6229, paragraph 34, and Harbs , cited above, paragraph 27).
37. In that regard, it is appropriate to point out that the third and fifth recitals to Directive 94/5 show the intention of the Community legislature to avoid double taxation and distortions of competition (see Case C-320/02 Stenholmen  [2004] ECR  I‑3509, paragraph 25).
38. To tax, on the overall sale price, the supply by a sale and leaseback undertaking of a car which it purchased second-hand, when, at the time of that purchase it was not able to deduct the VAT which remained incorporated in the purchase price, gives rise to the risk of double taxation.
39. Moreover, in accordance with the principle of fiscal neutrality on which, in particular, the common system of VAT established by the Sixth Directive is based, economic operators carrying out the same transactions may not be treated differently in relation to the levying of VAT (see Case C-382/02 Cimber Air  [2004] ECR I‑8379, paragraphs 23 and 24).
41. The application of the arrangements provided for in Article 26a of the Sixth Directive to sale and leaseback undertakings allows in those circumstances precisely the achievement of the aim of the Community legislature in adopting those arrangements, that is, to avoid double taxation and distortions of competition in the area of second-hand goods.