Finanzamt Bergisch Gladbach v HE.
Date: 2005-04-21
36. In that regard, it is to be remembered first of all that the Sixth Directive establishes a common system of VAT based, inter alia, on a uniform definition of taxable transactions (see Case C‑305/01 MKG‑Kraftfahrzeuge‑Factoring [2003] ECR I‑6729, paragraph 38).
39. ‘Economic activity’ is defined in Article 4(2) as encompassing ‘all’ activities of producers, traders and persons supplying services including the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. ‘Exploitation’ in that context refers, in accordance with the requirements of the principle that the common system of VAT should be neutral, to all those transactions, whatever their legal form may be (see Case C‑8/03 BBL  [2004] ECR I‑0000, paragraph 36).
40. It is settled case-law that Article 4 of the Sixth Directive thus gives VAT a very wide scope, comprising all stages of production, distribution and the provision of services (see, inter alia, Case C-186/89 Van Tiem [1990] ECR I-4363, paragraph 17, and MKG-Kraftfahrzeuge-Factoring , cited above, paragraph 42).
41. On the basis of the criteria set out in Article 4 of the directive, which are the sole point of reference for assessing a person’s status as a taxable person (see Van Tiem , paragraph 25, and BBL , paragraph 36), a person such as HE must be regarded as a taxable person.
43. Furthermore, it follows from Article 17(2) of the Sixth Directive that, in so far as the taxable person, acting as such, uses the asset for the purposes of his taxable transactions, he is entitled to deduct VAT due or paid in respect of the asset. Conversely, where the asset is not used for the taxable person’s economic activities within the meaning of Article 4 of the directive but is used by him for private consumption, no right to deduct can arise (see, to that effect, Case C‑97/90 Lennartz [1991] ECR I‑3795, paragraphs 8 and 9).
46. The Court has consistently held that where a capital item is used both for business and for private purposes the taxpayer has the choice, for the purposes of VAT, of (i) allocating that item wholly to the assets of his business, (ii) retaining it wholly within his private assets, thereby excluding it entirely from the system of VAT, or (iii) – as in the case before the national court – integrating it into his business only to the extent to which it is actually used for business purposes (see, to that effect, Case C‑415/98 Bakcsi [2001] ECR I‑1831, paragraphs 24 to 34, and Case C‑269/00 Seeling  [2003] ECR I‑4101, paragraphs 40 and 41).
63. Furthermore, it is settled case-law that the terms of a provision of the Sixth Directive which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, in order to prevent differences from one Member State to another in the way the VAT system is applied (see Case C‑497/01 Zita Modes  [2003] ECR I‑0000, paragraph 34).
64. As regards more specifically Article 5(1) of the Sixth Directive, by virtue of which the transfer of the right to dispose of tangible property as owner is regarded as a supply of goods, it follows from the case-law of the Court that ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property. The purpose of the directive might be jeopardised if the requirements for there to be a supply of goods, which is one of the three taxable transactions, were to differ according to the civil law of the Member State concerned (see, to that effect, Case C‑320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I‑285, paragraphs 7 and 8; Case C‑291/92 Armbrecht  [1995] ECR I‑2775, paragraphs 13 and 14; and Case C‑185/01 Auto Lease Holland  [2003] ECR I‑1317, paragraphs 32 and 33).
70. HE’s claim for deduction of all the VAT attributable to the office must, in those circumstances, be regarded as in conformity with the deduction system, which 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 thus ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, inter alia, Zita Modes , cited above, paragraph 38).
80. However, as the Commission has observed, it is settled case-law that the requirement of particulars on the invoice other than those set out in Article 22(3)(b) of the Sixth Directive, as a condition for the exercise of the right to deduct, must be limited to what is necessary to ensure the correct levying of VAT and permit supervision by the tax authorities. Moreover, such particulars must not, by reason of their number or technical nature, render the exercise of the right to deduct practically impossible or excessively difficult (Joined Cases 123/87 and 330/87 Jeunehomme and EGI  [1988] ECR 4517, paragraph 17). Thus, the measures which the Member States may adopt under Article 22(8) of the directive in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than what is necessary to attain such objectives. They may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others  [2000] ECR I-1577, paragraph 52, and Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 59).