# C_2004262EN.01001201.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/12 |
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23.10.2004

EN

Official Journal of the European Union

C 262/12

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Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 7 June 2004 in the case of T-Mobile Austria GmbH against the Republic of Austria

(Case C-284/04)

(2004/C 262/24)

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna) (Austria), of 7 June 2004, which was received at the Court Registry on 1 July 2004, for a preliminary ruling in the case of T-Mobile Austria GmbH against the Republic of Austria.

The Landesgericht für Zivilrechtssachen Wien asks the Court of Justice to give a preliminary ruling on the following questions:

| 1. | Is the third subparagraph of Article 4(5) of, in conjunction with No 1 of Annex D to, the Sixth Council Directive 77/388/EEC (1) 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 Sixth Directive’) to be interpreted as meaning that the allocation of rights to use frequencies for mobile telecommunications systems in accordance with the UMTS/IMT-2000, GSM-DCS-1800 and TETRA standards (‘frequency use rights for mobile telecommunications systems’) by a Member State in return for a frequency use payment is a telecommunications activity? |
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1.

Is the third subparagraph of Article 4(5) of, in conjunction with No 1 of Annex D to, the Sixth Council Directive 77/388/EEC (1) 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 Sixth Directive’) to be interpreted as meaning that the allocation of rights to use frequencies for mobile telecommunications systems in accordance with the UMTS/IMT-2000, GSM-DCS-1800 and TETRA standards (‘frequency use rights for mobile telecommunications systems’) by a Member State in return for a frequency use payment is a telecommunications activity?

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| 2. | Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that a Member State whose national law does not provide for the criterion mentioned in the third subparagraph of Article 4(5) of the directive of the ‘non-negligible’ extent of an activity (the de minimis rule) as a condition for having the status of taxable person must therefore be regarded as a taxable person for all telecommunications activities in every case regardless of whether the extent of those activities is negligible? |
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2.

Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that a Member State whose national law does not provide for the criterion mentioned in the third subparagraph of Article 4(5) of the directive of the ‘non-negligible’ extent of an activity (the de minimis rule) as a condition for having the status of taxable person must therefore be regarded as a taxable person for all telecommunications activities in every case regardless of whether the extent of those activities is negligible?

| 3. | Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State in return for frequency use payments of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA) is to be regarded as an activity of non-negligible extent, so that the Member State is considered a taxable person in respect of that activity? |
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3.

Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State in return for frequency use payments of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA) is to be regarded as an activity of non-negligible extent, so that the Member State is considered a taxable person in respect of that activity?

| 4. | Is the second subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that it would lead to significant distortions of competition if a Member State, when allocating frequency use rights for mobile telecommunications systems in return for payment of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA), does not subject those payments to turnover tax and private bidders for those frequencies must subject that activity to turnover tax? |
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4.

Is the second subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that it would lead to significant distortions of competition if a Member State, when allocating frequency use rights for mobile telecommunications systems in return for payment of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA), does not subject those payments to turnover tax and private bidders for those frequencies must subject that activity to turnover tax?

| 5. | Is the first subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that an activity of a Member State which allocates frequency use rights for mobile telecommunications systems to mobile telecommunications operators in such a way that a highest bid for the frequency use payment is first ascertained in an auction procedure and the frequencies are then allocated to the highest bidder does not take place in the exercise of public authority, so that the Member State is considered a taxable person in respect of that activity, regardless of the legal nature under the Member State's national law of the act which effects the allocation? |
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5.

Is the first subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that an activity of a Member State which allocates frequency use rights for mobile telecommunications systems to mobile telecommunications operators in such a way that a highest bid for the frequency use payment is first ascertained in an auction procedure and the frequencies are then allocated to the highest bidder does not take place in the exercise of public authority, so that the Member State is considered a taxable person in respect of that activity, regardless of the legal nature under the Member State's national law of the act which effects the allocation?

| 6. | Is Article 4(2) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State described in Question 5 is to be regarded as an economic activity, so that the Member State is considered a taxable person in respect of that activity? |
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6.

Is Article 4(2) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State described in Question 5 is to be regarded as an economic activity, so that the Member State is considered a taxable person in respect of that activity?

| 7. | Is the Sixth Directive to be interpreted as meaning that the frequency use payments determined for the allocation of frequency use rights for mobile telecommunications systems are gross payments (which already include value added tax) or net payments (to which value added tax may still be added)? |
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7.

Is the Sixth Directive to be interpreted as meaning that the frequency use payments determined for the allocation of frequency use rights for mobile telecommunications systems are gross payments (which already include value added tax) or net payments (to which value added tax may still be added)?

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(1)  OJ L 145, p. 1.

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