5.7.2008

Official Journal of the European Union

C 171/25

(Case C-174/08)

(2008/C 171/37)

Language of the case: Danish

Referring court

Parties to the main proceedings

Applicant: NCC Construction Danmark A/S

Defendant: Skatteministeriet

Questions referred

1.Is the term ‘incidental real estate transactions’ in the second sentence of Article 19(2) of the Sixth VAT Directive to be interpreted as covering the activities of a building business which is subject to VAT in connection with the subsequent sale of real estate built by the building business on its own account as an activity fully subject to VAT with a view to resale?

2.For the purposes of the answer to question 1, is the extent to which the sales activities, viewed separately, entail the use of goods and services on which VAT is payable of relevance?

3.Is it consistent with the VAT-law principle of neutrality for a building business which, under the legislation of the Member State in question — based on Article 5(7) and Article 6(3) of the Sixth Directive — is required to pay VAT on its internal supplies in connection with the construction of buildings on its own account with a view to subsequent sale, to have only a partial right to deduct VAT for general costs for the purposes of the building business, given that the subsequent sale of the real estate is, under the Member State's VAT legislation, exempt from VAT on the basis of Article 28(3)(b) of the Sixth VAT Directive, read in conjunction with point 16 of Annex F?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).