Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen.
Date: 1977-02-01
10 IT SHOULD BE NOTED , IN THE FIRST PLACE , THAT THE EXPRESSION AT ISSUE FORMS PART OF A PROVISION OF COMMUNITY LAW WHICH DOES NOT REFER TO THE LAW OF THE MEMBER STATES FOR THE DETERMINING OF ITS MEANING AND ITS SCOPE .
11 IT FOLLOWS THAT THE INTERPRETATION , IN GENERAL TERMS , OF THE EXPRESSION CANNOT BE LEFT TO THE DISCRETION OF EACH MEMBER STATE .
12 THE ORDINARY MEANING OF THE EXPRESSION AND ITS FUNCTION IN THE CONTEXT OF THE PROVISIONS OF THE SECOND DIRECTIVE INDICATE THAT IT COVERS GOODS USED FOR THE PURPOSES OF SOME BUSINESS ACTIVITY AND DISTINGUISHABLE BY THEIR DURABLE NATURE AND THEIR VALUE AND SUCH THAT THE ACQUISITION COSTS NOT NORMALLY TREATED AS CURRENT EXPENDITURE BUT WRITTEN OFF OVER SEVERAL YEARS .
13 IN FACT , THE SPECIAL SYSTEM RESERVED FOR CAPITAL GOODS BY THE DIRECTIVE , WHICH INCLUDES EXCEPTIONS TO THE PRINCIPLE OF IMMEDIATE DEDUCTION , IS EXPLAINED AND JUSTIFIED BY THE DURABLE USE OF THOSE GOODS AND THE ATTENDANT WRITING OFF OF THEIR ACQUISITION COSTS .
16 IN THIS RESPECT , THE SECOND DIRECTIVE DOES NOT CONTAIN EXPLICIT GUIDANCE FOR DEFINING UNIFORMLY AND PRECISELY THE REQUIREMENTS WHICH MUST BE SATISFIED CONCERNING DURABILITY AND VALUE , TOGETHER WITH THE RULES APPLICABLE FOR WRITING OFF , IN ORDER THAT AN OBJECT MAY BE CLASSIFIED AS CAPITAL GOODS FOR THE PURPOSES OF THE PROVISIONS AT ISSUE .
17 THE MEMBER STATES THEREFORE HAVE A CERTAIN MARGIN OF DISCRETION AS REGARDS THOSE REQUIREMENTS , PROVIDED THAT THEY PAY DUE REGARD TO THE EXISTENCE OF AN ESSENTIAL DIFFERENCE BETWEEN CAPITAL GOODS AND THE OTHER GOODS USED IN THE MANAGEMENT AND DAY TO DAY RUNNING OF UNDERTAKINGS .
22 IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO A DIRECTIVE BY ARTICLE 189 TO EXCLUDE , IN PRINCIPLE , THE POSSIBILITY THAT THE OBLIGATION WHICH IT IMPOSES MAY BE INVOKED BY THOSE CONCERNED .
23 IN PARTICULAR , WHERE THE COMMUNITY AUTHORITIES HAVE , BY DIRECTIVE , IMPOSED ON MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR COURSE OF CONDUCT , THE USEFUL EFFECT OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF THE LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW .
24 THIS IS ESPECIALLY SO WHEN THE INDIVIDUAL INVOKES A PROVISION OF A DIRECTIVE BEFORE A NATIONAL COURT IN ORDER THAT THE LATTER SHALL RULE WHETHER THE COMPETENT NATIONAL AUTHORITIES , IN EXERCISING THE CHOICE WHICH IS LEFT TO THEM AS TO THE FORM AND THE METHODS FOR IMPLEMENTING THE DIRECTIVE , HAVE KEPT WITHIN THE LIMITS AS TO THEIR DISCRETION SET OUT IN THE DIRECTIVE .
27 WHEN THE NATURE OF THE PROVISIONS CONCERNED IS TAKEN INTO ACCOUNT , THE FACT OF HAVING OR OF NOT HAVING EXERCISED THE POWER TO MAKE A DEROGATION OR AN EXCEPTION IS A MATTER FOR THE DISCRETION OF THE LEGISLATIVE OR ADMINISTRATIVE AUTHORITIES OF THE MEMBER STATE IN QUESTION AND CANNOT , THEREFORE BE SUBJECT TO LEGAL REVIEW ON THE BASIS OF THE PROVISIONS OF THE DIRECTIVE .
28 THE POSITION IS THE SAME IF THE MATTER IN DISPUTE DEPENDS ON ONE OF THE PROVISIONS WHICH , EITHER IN EXPRESS TERMS , OR THROUGH THE INDEFINITE NATURE OF THE CONCEPTS USED , LEAVE THE LEGISLATIVE OR ADMINISTRATIVE AUTHORITIES OF THE MEMBER STATES A MARGIN OF DISCRETION CONCERNING THE MATERIAL CONTENTS OF THE EXCEPTIONS OR DEROGATIONS AUTHORIZED .
29 CONVERSELY , IT IS THE DUTY OF THE NATIONAL COURT BEFORE WHICH THE DIRECTIVE IS INVOKED TO DETERMINE WHETHER THE DISPUTED NATIONAL MEASURE FALLS OUTSIDE THE MARGIN OF THE DISCRETION OF THE MEMBER STATES AND CANNOT THEREFORE BE CONSIDERED AS A LEGITIMATE EXCEPTION TO OR DEROGATION FROM THE PRINCIPLE OF IMMEDIATE DEDUCTION LAID DOWN BY PARAGRAPH ( 1 ) OF ARTICLE 11 , AND TO TAKE THIS INTO ACCOUNT IN GIVING EFFECT TO THE TAXABLE PERSON ' S CLAIM .