Opinion of Mr Advocate General Cruz Vilaça delivered on 14 July 1988

1 Translated from the Portuguese.

2 Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value-added tax: uniform basis of assessment—OJ L 145, 13.6.1977, p. 1.

3 Second Council Directive (67/228/EEC) of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes — Structure and procedures for application of tlic common system of value-added tax—OJ, English Special Edition 1967, p. 16.

4 Judgment of 5 February 1981 in Case 154/80 Staatssecretam van Financien ν Coöperatieve AarJappclenbewaarplaati [1981] ECR 445 et seq.

5 Judgment of 8 March 1988 in Case 102/86 Apple and Pear Development Council [1988] ECR 1443, paragraph 10.

6 Emphasis added.

7 First Council Directive of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes (67/222/EEC, OJ, English Special Edition 1967, p. 14).

8 Il is interesting to note that the Commission itself, in the document quoted by the Portuguese Government— COM(74) 795 final, of 26 July 1974, Modifications à la proposition de la sixième directive du Conseil — expressly mentions, as forming part of the consideration and thus necessarily part of the taxable amount, the value of the services obtained or to be obtained, as well as the goods received in exchange.

9 See Commission proposal for a Sixth Council Directive on the harmonization of legislation of Member States concerning turnover taxes — Common system of value-added tax: uniform basis of assessment, submitted to the Council on 29 June 1973 (OJ C 80, 5.10.1973, p: 1; Minutes of Proceedings of the Sitting of the European Parliament of 14 March 1974, OJ C 40, 8.4.1974, p. 34 et seq.

10 This conclusion must be compared with that reached by the Court in its judgment of 1 February 1977 in Case 51/76 Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113, at pp. 125 and 126, paragraphs 14 to 18, concerning the correct interpretation of the term capital goods appearing in the third indent of the first paragraph of Article 17 of the Second Directive. The Court ruled in that case that, since the directive did not contain explicit guidance for defining uniformly and precisely the requirements which had to be satisfied (concerning durability and value, together with the rules applicable for writing off) for an object to be classified as capital goods, the Member States had a certain margin of discretion as regards those requirements.

11 [1981] ECR 449 and 450.

12 Opinion in Joined Cases 138 and 139/86 Direct Cosmetics and Laughtons Photographs [1988] ECR 3937, at p. 3949.