Official Journal of the European Union

C 148/7

(Joined Cases C-538/08 and C-33/09) (<span class="super">1</span>)

(Sixth VAT Directive - Right to deduct input tax - National legislation excluding certain categories of goods and services from the right to deduct - Option for Member States to retain rules excluding the right to deduct which were in existence when the Sixth VAT Directive entered into force - Amendment after that directive had entered into force)

2010/C 148/11

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicants: X Holding BV (Case-538/08), Oracle Nederland BV (C-33/09)

Defendants: Staatssecretaris van Financiën (Case C-538/08), Inspecteur van de Belastingdienst Utrecht-Gooi (Case C-33/09)

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden, Den Haag — Interpretation of Article 11(4) of Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax (OJ English special edition 1967, p. 16) and of Articles 6(2) and 17(2) and (6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the legislation of the Member States concerning turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exclusion of the right of deduction — Power of the Member States to maintain exclusions existing upon the entry into force of the Sixth Directive — Rules pre-dating the Sixth Directive providing for the exclusion of the right of deduction for categories of goods and services provided for use in private transport — Definition of those categories

Operative part of the judgment

1.Article 11(4) of Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax, and Article 17(6) of 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, must be interpreted as not precluding the tax legislation of a Member State from excluding from deduction value added tax which relates to categories of expenditure concerning, on the one hand, the provision of ‘private transport’, ‘food’, ‘drink’, ‘accommodation’ and ‘opportunities for recreation’ to the members of staff of a taxable person and, on the other hand, the provision of ‘business gifts’ or ‘other gifts’;

2.Article 17(6) of Sixth Directive 77/388 must be interpreted as not precluding national legislation, enacted before the Sixth Directive entered into force, under which a taxable person may deduct value added tax paid on the acquisition of certain goods and services used partly for private purposes and partly for professional purposes not in full but only in proportion to their use for professional purposes.

3.Article 17(6) of Sixth Directive 77/388 must be interpreted as not precluding an amendment by a Member State, after the entry into force of that directive, to an existing exclusion from the right of deduction, designed in principle to restrict the scope of that exclusion but in respect of which it cannot be ruled out that, in an individual case in a particular tax year, the scope of that exclusion might be extended by reason of the flat-rate nature of the amended scheme.

(<span class="super">1</span>) OJ C 55, 7.3.2009.

OJ C 90, 18.4.2009.