Official Journal of the European Union

C 363/19

(Case C-400/15)

(2015/C 363/24)

Language of the case: German

Referring court

Parties to the main proceedings

Appellant on a point of law: Landkreis Potsdam-Mittelmark

Respondent in the appeal on a point of law: Finanzamt Brandenburg

Question referred

The second sentence of Paragraph 15(1) of the German Umsatzsteuergesetz (Law on turnover tax) provides that the intra-Community supply, importation or acquisition of goods which a commercial operator uses in the amount of less than 10 % for the purposes of his business does not count as being carried out for the purposes of his business — and to that extent excludes the right to deduct input tax.

That rule is based on Article 1 of Council Decision 2004/817/EC (1) of 19 November 2004, which authorises the Federal Republic of Germany, by way of derogation from Article 17(2) of Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes, to exclude expenditure on goods and services from the right to deduct VAT when the goods and services in question are used more than 90 % for the private purposes of a taxable person or of his employees, or, more generally, for non-business purposes.

Does this authorisation — in accordance with its wording — apply only to the cases covered by Article 6(2) of Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes (Article 26 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax), or does it apply, in addition, to all cases in which goods or services are used only partly for business purposes?

(1) OJ 2004 L 357, p. 33.