3.As for the third question referred by the Hoge Raad, the plaintiff in the main action is of the opinion that this question should receive an answer in the affirmative subject to the reservation that taking into account the provisions of Article 11 (2) and (4) of the Second Directive, there is no right to unrestricted deduction when the taxable person has been assessed to turnover tax on goods and services used in non-taxable or exempt transactions, or for the private needs of the taxable person or of his staff.In this regard, it refers to the judgment of the Court of 6 October 1970 in Case 9/70, Grad v Finanzamt Traunstein ([1970] ECR 825) and to the judgment of 17 December 1970 in Case 33/70, S.p.a. Sace v Ministry for Finance of the Italian Republic ([1970] ECR 1213).According to the plaintiff in the main action Article 11 (1) fulfils the conditions required of a provision of a directive or of a decision in those judgments in order to be directly applicable: the article is clear, it is not subject to any reservation, it does not require any additional measure on the part of the Community or of the Member States and it does not leave any discretion to the Member States. The measures which the Netherlands had to adopt were already determined. Although the national legislature may have had some kind of discretion as regards the derogation from Article 11 (1) for which the third indent of Article 17 makes provision, no discretion is given to the Member States whereby they may extend the power conferred on them by the third indent of Article 17 by also applying the measures mentioned in that provision to goods which are not capital goods.
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