«(Sixth VAT Directive – Motor vehicle made available under a leasing contract – Taxable transactions – Own consumption – Article 17(6) and (7) – Exclusions provided for under national law at the date of entry into force of the directive)»

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable transactions – Liability to tax on services supplied in other Member States in circumstances where entitlement to deduction is excluded if services are supplied within the territory of the country – Not permissible (Council Directive 77/388) The provisions of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes preclude a measure of a Member State which provides that payment for services supplied in other Member States to a person in the first Member State is subject to VAT whereas, had the services in question been supplied within the territory of the country, the person to whom they were supplied would not have been entitled to deduction of input tax.see para. 68, operative part

JUDGMENT OF THE COURT (First Chamber) 11 September 2003 (1)

((Sixth VAT Directive – Motor vehicle made available under a leasing contract – Taxable transactions – Own consumption – Article 17(6) and (7) – Exclusions provided for under national law at the date of entry into force of the directive))

In Case C-155/01,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation, in particular, of Articles 5 and 6 of the 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),

THE COURT (First Chamber),,

composed of: M. Wathelet, President of the Chamber, P. Jann and A. Rosas (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 10 October 2002,

gives the following

Community rules

...

.

Until the above rules come into force, Member States may retain all the exclusions provided for under their national laws when this Directive comes into force.

National law

─ Legal position prior to the accession of the Republic of Austria to the European Union, that is until 31 December 1994

─ Legal position after the accession of the Republic of Austria to the European Union, that is from 1 January 1995

Main proceedings and the question referred for a preliminary ruling

Observations submitted to the Court

The Court's reply

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Verwaltungsgerichtshof by order of 29 March 2001, hereby rules:

Wathelet

Jann

Rosas

Delivered in open court in Luxembourg on 11 September 2003.

R. Grass

M. Wathelet

Registrar

President of the First Chamber