Case C-376/02

Stichting “Goed Wonen”

v

Staatssecretaris van Financiën

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Turnover tax – Common system of value added tax – Article 17 of Sixth Directive 77/388/EEC – Deduction of input tax – Amendment of national legislation – Retroactive effect – Principles of the protection of legitimate expectations and legal certainty)

Summary of the Judgment

1.        Community law — Principles — Non-retroactivity — Exceptions — Conditions — Retroactivity required by purpose in the public interest — Whether the legitimate expectations of those concerned have been respected

2.        Tax provisions — Harmonisation of laws — Turnover tax — Common system of value added tax – Deduction of input tax — Legislative amendment designed to combat contrived financial arrangements and reintroducing exemption of an economic transaction in respect of immovable property previously subject to tax and having the effect of revoking a tax adjustment — Retroactive effect — Whether permissible in the light of the principles of the protection of legitimate expectations and legal certainty — Conditions

1.        Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.

The same principle must be observed by the national legislature when it adopts legislation within the sphere of Community law.

(see paras 33-34)

2.        The principles of the protection of legitimate expectations and legal certainty do not preclude a Member State, on an exceptional basis and in order to avoid the large-scale use, during the legislative process, of contrived financial arrangements intended to minimise the burden of value added tax that an amending law is specifically designed to combat, from giving that law retroactive effect where, inter alia, economic operators carrying out economic transactions such as those referred to by the law were warned of the impending adoption of that law and of the retroactive effect envisaged in a way that enabled them to understand the consequences of the legislative amendment planned for the transactions they carry out.

When that law exempts an economic transaction in respect of immovable property previously subject to value added tax, it may have the effect of revoking a value added tax adjustment made on account of the exercise, when immovable property was used for a transaction regarded at that time as taxable, of a right to deduct value added tax paid in respect of the supply of that immovable property.

(see para. 45, operative part)