# C_2004273EN.01001401.xml

| 6.11.2004 | EN | Official Journal of the European Union | C 273/14 |
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6.11.2004

EN

Official Journal of the European Union

C 273/14

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Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 24 August 2004, in the case of Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd against Commissioners of Customs and Excise

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(Case C-369/04)

(2004/C 273/27)

Reference has been made to the Court of Justice of the European Communities by direction of the VAT and Duties Tribunals, London Tribunal Centre, dated 24 August 2004, which was received at the Court Registry on 26 August 2004 for a preliminary ruling in the case of Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd and Commissioners of Customs and Excise on the following questions:

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| 1. | In the circumstances set out in the Agreed Statement of Facts, is the term ‘economic activity’ for the purposes of Articles 4(1) and 4(2) of the Sixth Directive (1) to be interpreted as including the issuing of the Licences by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum (the Activity), and what considerations are relevant to that question? |
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1.

In the circumstances set out in the Agreed Statement of Facts, is the term ‘economic activity’ for the purposes of Articles 4(1) and 4(2) of the Sixth Directive (1) to be interpreted as including the issuing of the Licences by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum (the Activity), and what considerations are relevant to that question?

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| 2. | In the circumstances set out in the Agreed Statement of Facts what considerations are relevant to the question whether or not the Secretary of State, in conducting the Activity, was acting as a ‘public authority’ within the meaning of Article 4(5) of the Sixth Directive? |
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2.

In the circumstances set out in the Agreed Statement of Facts what considerations are relevant to the question whether or not the Secretary of State, in conducting the Activity, was acting as a ‘public authority’ within the meaning of Article 4(5) of the Sixth Directive?

| 3. | In the circumstances set out in the Agreed Statement of Facts, can the Activity be (i) in part an economic activity and in part not, and/or (ii) partly carried out by a body governed by public law acting as a public authority and partly not, with the result that the activity would be partly chargeable to VAT under the Sixth Directive and partly not? |
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3.

In the circumstances set out in the Agreed Statement of Facts, can the Activity be (i) in part an economic activity and in part not, and/or (ii) partly carried out by a body governed by public law acting as a public authority and partly not, with the result that the activity would be partly chargeable to VAT under the Sixth Directive and partly not?

| 4. | How likely and how close in time to the carrying out of an activity such as the Activity does a ‘significant distortion of competition’ within the meaning of the second sub-paragraph of Article 4(5) of the Sixth Directive have to be in order for the person carrying out that activity to be required by that sub-paragraph to be considered a taxable person in respect of that activity? To what extent, if any, does the principle of fiscal neutrality bear on that question? |
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4.

How likely and how close in time to the carrying out of an activity such as the Activity does a ‘significant distortion of competition’ within the meaning of the second sub-paragraph of Article 4(5) of the Sixth Directive have to be in order for the person carrying out that activity to be required by that sub-paragraph to be considered a taxable person in respect of that activity? To what extent, if any, does the principle of fiscal neutrality bear on that question?

| 5. | Does the word ‘telecommunications’ in Annex D to the Sixth Directive (which is referred to in the third sub-paragraph of Article 4(5) of the Sixth Directive) include the issuing of the Licenses by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum, in the circumstances set out in the Agreed Statement of Facts? |
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5.

Does the word ‘telecommunications’ in Annex D to the Sixth Directive (which is referred to in the third sub-paragraph of Article 4(5) of the Sixth Directive) include the issuing of the Licenses by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum, in the circumstances set out in the Agreed Statement of Facts?

| 6. | Where (i) a Member State chooses to implement Articles 4(1) and 4(5) of the Sixth Directive by legislation conferring on a Government department (such as, in this case, the UK Treasury) a statutory power to make directions specifying which goods or services supplied by Government departments are to be treated as taxable supplies and (ii) that Government department makes, or purports to make, pursuant to that statutory power, directions specifying that certain supplies are taxable: is the principle set out in Case C-106/89 Marleasing [1990] ECR 1-4135, paragraph 8 relevant to the interpretation of the domestic legislation and of those Directions (and if so, how)? |
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6.

Where (i) a Member State chooses to implement Articles 4(1) and 4(5) of the Sixth Directive by legislation conferring on a Government department (such as, in this case, the UK Treasury) a statutory power to make directions specifying which goods or services supplied by Government departments are to be treated as taxable supplies and (ii) that Government department makes, or purports to make, pursuant to that statutory power, directions specifying that certain supplies are taxable: is the principle set out in Case C-106/89 Marleasing [1990] ECR 1-4135, paragraph 8 relevant to the interpretation of the domestic legislation and of those Directions (and if so, how)?

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(1)  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).

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