Official Journal of the European Union

C 38/8

(Case C-395/11) (<span class="super">1</span>)

(Taxation - Sixth VAT Directive - Decision 2004/290/EC - Manner in which a Member State applies a derogating measure - Authorisation - Article 2, point (1) - ‘Construction work’ - Interpretation - Supplies of goods covered - Possibility for the derogating measure to be applied only in part - Restrictions)

2013/C 38/08

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: BLV Wohn- und Gewerbebau GmbH

Defendant: Finanzamt Lüdenscheid

Re:

Request for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 2, point (1) of Council Decision 2004/290/EC of 30 March 2004 authorising Germany to apply a measure derogating from Article 21 of the Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes (OJ 2004 L 94, p. 59) — Right of the authorised Member State to apply that derogation only partially — Term ‘construction work’ contained in that provision — Whether supplies of goods are included

Operative part of the judgment

1.Point (1) of Article 2 of Council Decision 2004/290/EC of 30 March 2004 authorising Germany to apply a measure derogating from Article 21 of Sixth Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to the effect that the term ‘construction work’, as used in that provision, covers the supply of goods within the meaning of Article 5(1) of that directive, in addition to the transactions to be regarded as supplies of services, as defined in Article 6(1) 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, as amended by Council Directive 2004/7/EC of 20 January 2004.

2.Decision 2004/290 must be interpreted to the effect that it is open to the Federal Republic of Germany to avail itself only partially of the authorisation granted by that decision, exercising it in respect of certain subcategories, such as particular types of construction work, and in respect of supplies to certain recipients. When establishing those subcategories, that Member State is required to respect the principle of fiscal neutrality and the general principles of European Union law and, in particular, the principles of proportionality and legal certainty. It is for the referring court to determine, taking into account all the relevant facts and points of law, whether that is the position in the case before it and, if appropriate, to take the measures necessary to remedy the harmful consequences brought about by the application of the provisions at issue in a manner inconsistent with the principles of proportionality or legal certainty.

(<span class="super">1</span>) OJ C 311, 22.10.2011.