JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Case C-152/02 (reference for a preliminary ruling from the Bundesfinanzhof): Terra Baubedarf-Handel GmbH v Finanzamt Osterholz-Scharmbeck (1)

(Sixth VAT Directive - Article 17(1) and Article 18(1) and (2) - Right to deduct input VAT - Conditions of exercise)

(2004/C 118/36)

Language of the case: German

In Case C-152/02: reference to the Court under Article 234 EC from the Bundesfinanzhof (Federal Finance Court) (Germany) for a preliminary ruling in the proceedings pending before that court between Terra Baubedarf-Handel GmbH and Finanzamt Osterholz-Scharmbeck — on the interpretation of Articles 17 and 18 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 (OJ 1977 L 145, p. 1) — the Court (Fifth Chamber), composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola and S. von Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:

For the deduction referred to in Article 17(2)(a) 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, the first subparagraph of Article 18(2) of that directive must be interpreted as meaning that the right to deduct must be exercised in respect of the tax period in which the two conditions required by that provision are satisfied, namely that the goods have been delivered or the services performed and that the taxable person holds the invoice or the document which, under the criteria determined by the Member State in question, may be considered to serve as an invoice.

(1)  OJ C 156, 29.6.2002.