Opinion of the Advocate General — ECLI:EU:C:2000:351
Date: 2000-06-29
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Taxable persons — Bodies governed by public law — Activities 
in the exercise of public authority not taxable — Definition — Whether the letting of 
spaces for the parking of vehicles included — Conditions 
(Council Directive 77/388, Art. 4(5), first subpara.) 
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SUMMARY — CASE C-446/98 
2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Taxable persons — Bodies governed by public law — Activities 
in the exercise of public authority not taxable — Economic activities which are not 
negligible taxable — Extent 
(Council Directive 77/388, Art. 4(5), third subpara.) 
3. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Taxable persons — Bodies governed by public law — Activities 
in the exercise of public authority not taxable — Concept of significant distortions of 
competition and concept of economic activities not negligible in scale — National 
legislation authorising the competent minister to define those concepts — Whether 
permissible — Conditions 
(Council Directive 77/388, Art. 4(5), second and third subparas) 
4. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Taxable persons — Bodies governed by public law — Activities 
in the exercise of public authority not taxable — Letting of spaces for the parking of 
vehicles — Effect of the absence of an exemption following from Article 13B(b) of the 
Sixth Directive — None 
(Council Directive 77/388, Arts 4(5), fourth subpara., and 13B(b)) 
5. Preliminary rulings — Reference to the Court — Need for a preliminary ruling — 
Assessment by the national court 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
6. Preliminary rulings — Judgment — Effects 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
1. The letting of spaces for the parking of 
vehicles is an activity which, where it is 
carried on by a body governed by 
public law, is carried on by that body 
as a public authority within the mean­
ing of the first subparagraph of Art­
icle 4(5) of the Sixth Directive 77/388 
on the harmonisation of the laws of the 
Member States relating to turnover 
taxes if it is carried on under a special 
legal regime applicable to bodies gov­
erned by public law. That is the case 
where the pursuit of the activity 
involves the use of public powers. 
(see para. 24 and operative part 1) 
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FAZENDA PÚBLICA 
2. The third subparagraph of Article 4(5) 
of the Sixth Directive 77/388 on the 
harmonisation of the laws of the 
Member States relating to turnover 
taxes must be interpreted as meaning 
that bodies governed by public law are 
not necessarily regarded as taxable 
persons in respect of the activities they 
engage in which are not negligible. 
Only if those bodies engage in an 
activity or perform a transaction listed 
in Annex D to the directive may the 
criterion of the negligible scale of that 
activity or transaction be taken into 
account with the aim, if national law 
makes use of the option provided for in 
the third subparagraph of Article 4(5) 
of the directive, of excluding them 
from being taxable persons for value 
added tax where their activities are 
negligible. 
(see para. 28 and operative part 2) 
3. The Finance Minister of a Member 
State may be authorised by a national 
law to define what is covered by, first, 
the concept of significant distortions of 
competition within the meaning of the 
second subparagraph of Article 4(5) of 
the Sixth Directive 77/388 on the 
harmonisation of the laws of the 
Member States relating to turnover 
taxes and, second, the concept of 
negligible activities within the meaning 
of the third subparagraph of Art­
icle 4(5) of that directive, provided that 
his decisions of application may be 
reviewed by the national courts. 
(see para. 35 and operative part 3) 
4. The fourth subparagraph of Art­
icle 4(5) of the Sixth Directive 77/388 
on the harmonisation of the laws of the 
Member States relating to turnover 
taxes must be interpreted as meaning 
that the absence of an exemption for 
the letting of spaces for the parking of 
vehicles, which follows from Art­
icle 13B(b) of the directive, does not 
prevent bodies governed by public law 
which carry out that activity from 
being treated as non-taxable persons 
for value added tax in respect of it, 
where the conditions stated in the first 
and second subparagraphs of that pro­
vision are satisfied. 
(see para. 46 and operative part 4) 
5. National courts are entitled, and in 
certain cases obliged, to refer a ques­
tion of the interpretation of Commun­
ity law to the Court, even of their own 
motion, if they consider that a decision 
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SUMMARY — CASE C-446/98 
on that point by the Court is necessary 
to enable them to give judgment. 
(see paras 48, 50 and operative part 5) 
6. A judgment in which the Court gives a 
preliminary ruling is binding on the 
national court, as regards the inter­
pretation of the Community provisions 
and measures concerned, when it gives 
final judgment in the main proceed­
ings. 
(see paras 49-50 and operative part 5) 
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