Opinion of the Advocate General — ECLI:EU:C:2024:750
Date: 2024-09-12
Language of the case: Danish
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary C-573/22 – 1 
Case C-573/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 August 2022 
Referring court: 
Østre Landsret – Nordhavn (Denmark) 
Date of the decision to refer: 
8 July 2022 
Applicants: 
A 
B 
Association C 
Defendant: 
Skatteministeriet 
  
Subject matter of the main proceedings 
The main proceedings concern whether the VAT charged on the Danish media 
licence fee between 2007 and 2017 should be refunded. 
The questions referred for a preliminary ruling concern the interpretation of the 
standstill provision in Article 370, read in conjunction with point 2 of Annex X, 
Part A to Directive 2006/112/EC, which continues Article 28(3)(a), read in 
conjunction with point 7 of Annex E to the Sixth Council Directive 77/388/EEC. 
These questions concern, firstly, whether a statutory media licence fee, such as the 
Danish media licence fee, may be subject to VAT and, secondly, the interpretation 
of what constitutes an unacceptable amendment to a national derogation scheme 
covered by a standstill provision. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-573/22 
 
2  
Subject matter and legal basis of the request 
Interpretation of Article 370, read in conjunction with point 2 of Annex X, Part A, 
of Council Directive 2006/112/EC of 28 November 2006 on the common system 
of value added tax. 
Questions referred for a preliminary ruling 
‘1. Is Article 370, read in conjunction with point 2 of Annex X, Part A, of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, to be interpreted as permitting the Member States concerned to 
impose VAT on a statutory media licence fee to finance the non-commercial 
activities of public radio and television bodies, notwithstanding the absence of a 
“supply of services for consideration” within the meaning of Article 2(1) of that 
Directive? 
If question 1 is answered in the affirmative, the Court of Justice is asked to answer 
the following questions referred for a preliminary ruling: 
2. Is Article 370, read in conjunction with point 2 of Annex X, Part A, of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, to be interpreted as meaning that a Member State’s option to 
impose VAT on a statutory media licence fee as specified in question 1 may be 
maintained if, after the entry into force, on 1 January 1978, of Directive 
77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member 
States relating to turnover taxes (Sixth Directive), the Member State has altered 
the licensing system from charging a licence fee for possessing radio and 
television equipment to charging a licence fee for possessing any device which 
can receive audiovisual programmes and services directly, including smartphones, 
computers, etc.? 
3. Is Article 370, read in conjunction with point 2 of Annex X, Part A, of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, to be interpreted as meaning that a Member State’s option to 
impose VAT on a statutory media licence fee as specified in question 1 may be 
maintained if, after the entry into force, on 1 January 1978, of Directive 
77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member 
States relating to turnover taxes (Sixth Directive), the Member State has altered 
the licensing system so that a smaller proportion of the licence fee resources will, 
at the discretion of the Minister for Culture, be used to finance (i) radio and 
television bodies which receive public subsidies but are not themselves public, 
and (ii) media and film organisations which contribute to but do not themselves 
carry out radio and television activities?’ 
ASSOCIATION C AND OTHERS 
 
3 
Provisions of European Union and case-law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (OJ 2006 L 347, p. 1); Article 1(2); Article 2(1)(c); Article 13; 
Article 132(1)(q); Article 176; Article 370; Article 378(1); Article 379(1); Point 2 
of Annex X, Part A. 
First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of 
legislation of Member States concerning turnover taxes (OJ 1967, p. 14 1); 
Article 2. 
Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the 
laws of the Member States relating to turnover taxes (OJ 1977 L 145, p. 1, ‘the 
Sixth Directive’); Article 2; Article 4(5); Article 13, A (1) (q); Article 17(6); 
Article 28(3)(a); Point 7 of Annex E. 
Council Regulation No 354/83 concerning the opening to the public of the 
historical archives of the European Economic Community and of the European 
Atomic Energy Community (OJ 1983 L 43, p. 1). 
(COM(73) 950 final); Article 14, A (1) (k). 
(COM (74) 795); Article 4(5); Article 14, A (1) (k). 
(COM(2004) 246 final); Article 129(1)(q); Article 363; Point 2 of Annex IX, Part 
A. 
Council Note R/2/74 of 14 January 1974. 
Council Working Document T/41/74 of 1 February 1974. 
Council Working Document T/145/74 of 25 April 1974. 
Council Working Document T/373/74 (FIN) of 17 July 1974. 
Council Working Document T/631/74 (FIN) of 19 December 1974. 
Council Working Document T/440/75 of 15 July 1975. 
Council Working Document T/120/1/76 of 14 May 1976. 
Council Working Document T/497/76 of 30 June 1976. 
Council Note R/1930/76 of 9 August 1976. 
Council Note T/719/76 of 30 September 1976. 
 
1OJ, English Special Edition1967, p. 14. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-573/22 
 
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Council Note T/744/76 of 5 October 1976. 
Council Note T/848/76 (JUR)(FIN) of 15 November 1976. 
Council Note R/2719/76 of 15 November 1976. 
Council Note R/3034/76 of 13 December 1976. 
Council Working Document R/3256/76 of 19 January 1977. 
judgment of 17 October 1996, Denkavit International and Others, C-283/94, 
EU:C:1996:387, paragraphs 28 and 29. 
judgment of 25 March 1999, Gencor v Commission, T-102/96, EU:T:1999:65, 
paragraphs 128 to 131. 
judgment of 1 June 1999, Konle, C-302/97, EU:C:1999:271, paragraph 53. 
judgment of 13 July 2000, Ideal Tourism SA, C-36/99, EU:C:2000:405, 
paragraph 32. 
judgment of 8 January 2002, Metropol and Stadler, C-409/99, EU:C:2002:2, 
paragraph 49. 
judgment of 7 December 2006, Eurodental, C-240/05, EU:C:2006:763, 
paragraph 54. 
judgment of 24 May 2007, Holböck, C-157/05, EU:C:2007:297, paragraph 41. 
judgment of 11 December 2008, Danfoss and AstraZeneca, C-371/07, 
EU:C:2008:711, paragraphs 33 to 34. 
judgment of 23 April 2009, Puffer, C-460/07, EU:C:2009:254, paragraphs 86 to 
87 and 93. 
judgment of 13 March 2014, Jetair, C-599/12, EU:C:2014:144, paragraph 29. 
judgment of 22 June 2016, Český rozhlas, C-11/15, EU:C:2016:470, 
paragraphs 20 and 23 to 27. 
Request for a preliminary ruling from C-249/22, GIS (pending). 
ASSOCIATION C AND OTHERS 
 
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Provisions of national law relied on 
1926: Radiospredningslov med radioapparatafgift og fjernsynsafgift (1951) 
(Danish Act on Broadcasting with a radio equipment fee and television fee 
(1951))  
A radio equipment fee was introduced in Denmark in 1926, followed by a 
television fee in 1951. These fees, together with their subsequent amendments 
(‘the licence fee’), were to be paid in the case of possession of a device subject to 
a licence fee, the definition of which has evolved over the years, as have the 
purposes for which licence fee resources could be used. 
1967: Momsloven (Danish VAT Act) and VAT on licence fee 
Since the first Danish VAT Act (Law No 102 of 31 March 1967 on general 
turnover tax), radio and television broadcasts have been subject to VAT, which 
resulted in the payment of VAT on the Danish licence fee. 
The Danish VAT Act was amended, following the Sixth Council Directive 
77/388/EEC, by Lov nr. 204 af 10. maj 1978 om ændring af merværdiafgiftsloven 
(Danish Law No 204 of 10 May 1978 amending the VAT Act). It is apparent from 
the travaux préparatoires for that law that the Sixth Directive allows Member 
States to retain, in certain cases, their current scheme, specifically liability for tax 
or an exemption from taxes, which does not comply with the main provisions of 
the Directive. The travaux préparatoires for the legislative amendment mention, 
inter alia, the right to charge VAT on the radio and television licence fee as an 
example of the derogations which Denmark is entitled to retain. 
Equipment subject to a licence fee 
When the Sixth Directive entered into force, the equipment subject to a licence fee 
was radio and television sets. 
The part of the licence fee, classified until 1995 as a ‘television fee’ and then, 
until 2006, as a ‘television licence fee’, was changed by Lov nr. 1569 af 20. 
december 2006 om ændring af lov om radio- og fjernsynsvirksomhed (Law 
No 1569 of 20 December 2006 amending the Law on radio and television 
activities) to a ‘media licence fee’, including equipment capable of receiving and 
playing audiovisual programmes or services transmitted to the public. That part of 
the licence fee previously covered only television sets, but was changed with a 
view to following technological development, whereby media companies have 
operated several platforms allowing audiovisual programmes etc. to be played. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-573/22 
 
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Use of licence fee resources 
As regards the use of licence fee resources, the licence fee was charged at the time 
when the Sixth Directive entered into force, with the aim of financing DR (Danish 
Broadcasting Corporation), which had the exclusive right to broadcast audiovisual 
programmes intended to be received by the public. DR was – and currently 
remains – a ‘special administrative operator’ in the form of a State institution with 
its own legal personality. 
In 1986, provision was made for the new national television channel TV 2, 
organised as an independent institution (governed by public law) (i.e. a special 
administrative operator like DR), to be financed partly by licence fee resources 
and partly by advertising revenue. 
Lov nr. 1208 af 27. december 1996 om ændring af lov om radio- og 
fjernsynsvirksomhed (Law No 1208 of 27 December 1996 amending the Law on 
radio and television activities) stipulated, for the first time, that licence fee 
resources could also be allocated to entities other than DR and TV 2. Under 
Section 61. (1) of that law, the income from the licence fee could, according to the 
Minister, be allocated to DR, TV 2 and for any other media-related purposes 
respectively. As a result of changes made to the status of TV 2, it was stipulated in 
2005 that the licence fee should be allocated to ‘DR, TV 2’s regional companies 
and for any other media-related purposes’. 
Under Section 69a of Lov nr. 1360 af 8. december 2010 i lov om radio- og 
fjernsynsvirksomhed (Law No 1360 of 8 December 2010 on radio and television 
activities), the distribution of licence fee resources was again amended so that 
they were allocated to ‘DR, TV 2’s regional companies and for any other media- 
and film-related purposes’. 
Some of the resources transferred from DR to the Danish Ministry of Culture were 
distributed to a privately-owned public service radio channel (Radio24syv), to 
local radio and TV stations, to a media school project (Station Next), to Det 
Danske Filminstitut (Danish Film Institute), to a public service fund, a media 
secretariat and for media statistics. 
It was decided by Law No 1548 of 18 December 2018 to phase out the media 
licence fee over a period of three years, from 2019 to 2021, with the result that the 
media licence fee was completely abolished on 1 January 2022. The purposes 
previously financed by licence fee resources will be financed in the future by 
means of ordinary income tax. 
Succinct presentation of the facts and procedure in the main proceedings 
1 During the relevant period in the present case, 2007–2017, VAT was charged on 
the Danish media licence fee. The applicants have brought an action before the 
referring court seeking a refund of the VAT charged. 
ASSOCIATION C AND OTHERS 
 
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2 The Danish media licence fee was to be paid in the case of possession of a device 
subject to a licence fee, which means a device capable of receiving and playing 
audiovisual programmes or services broadcast to the public. Until 2013, a radio 
licence fee also had to be paid on radio equipment which could only receive and 
play radio programmes broadcast to the public. 
3 A media licence fee had to be paid regardless of whether the equipment was used 
and, if so, of what it was used for. A media licence fee also had to be paid 
regardless of whether, because of the antenna’s position or other circumstances, 
the programmes of the institutions financed by the licence could actually be 
received or not. Conversely, the possibility of receiving the programmes of the 
institutions financed by the licence was not dependent on the payment of a media 
licence fee. 
4 The licence fee has been subject to VAT since the first Danish VAT Act of 1967. 
When the Sixth Directive entered into force on 1 January 1978, only television 
and radio sets formed the group of devices subject to a licence fee. Between 2007 
and 2017, the devices subject to a licence fee were all devices capable of receiving 
and playing audiovisual programmes or services broadcast to the public, such as 
television, smartphones, PCs, etc. 
5 When the Sixth Directive entered into force, all licence fee resources were used to 
finance the public institution DR (Danish Broadcasting Corporation). Between 
2007 and 2017, licence fee resources were used to finance DR, the regional 
companies of TV 2 and, through the Ministry of Culture, other media and film-
related purposes. 
The essential arguments of the parties in the main proceedings 
Imposition of VAT on a statutory media licence fee 
Observations of Østre Landsret (Eastern High Court, Denmark) 
6 The Eastern High Court considers that the Danish media licence fee does not 
represent remuneration for services within the meaning of Article 2(1) of 
Directive 2006/112. 
Applicants’ submissions 
7 The applicants claim that Article 370 must be interpreted as meaning that the right 
of a Member State to charge VAT under that provision on a licence fee such as 
that at issue is subject to the condition that the licence fee represents remuneration 
for the supply of a service and that it therefore falls within the general scope of 
Directive 2006/112. That Directive does not provide for the possibility of charging 
VAT on a payment which does not represent remuneration for the supply of a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-573/22 
 
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service within the meaning of the Directive, but which is, on the other hand, a tax 
on the possession of equipment subject to a licence fee. 
8 In conclusion, the applicants submit that Article 370 does not provide for the 
possibility of charging VAT, since remuneration for services is not involved. 
Furthermore, this is also provided for in Article 132(1)(q) of Directive 2006/112. 
Defendant’s submissions 
9 Skatteministeriet (Danish Ministry of Taxation) submits that Article 370 of 
Directive 2006/112, read in conjunction with point 2 of Annex X, Part A thereto, 
allows Denmark to tax licensing payments despite the absence of a ‘supply of 
services for consideration’ within the meaning of Article 2(1) of that Directive. 
10 According to the Ministry, this interpretation is supported specifically by the 
wording, objectives and origin of that provision. 
11 The fact that the general VAT exemption provided for in Article 132(1)(q) of 
Directive 2006/112 presupposes that this involves a supply of goods and services 
for consideration and that, consequently, a transaction falls within the general 
scope of VAT does not mean that this is the case with Article 370. 
12 The purpose of the provision is precisely to enable Member States to maintain a 
national scheme which derogates from the Directive, confirming that the scope of 
the provision is independent of the Directive’s basic conditions and system. 
Alteration of the licensing system 
Observations of Østre Landsret (Eastern High Court, Denmark) 
13 The parties to the main proceedings disagree on the Court of Justice’s case-law 
relating to the ban on extending derogation schemes in the event of an ‘extension’. 
The Eastern High Court considers that, if the amendment of the licensing system 
at issue in the main proceedings constitutes an ‘extension’ within the meaning of 
the Court of Justice’s case-law banning the extension of derogation schemes, 
imposing VAT on the media licence fee is unlawful. 
Applicants’ submissions 
14 If Article 370 of Directive 2006/112 is to be interpreted as granting Denmark the 
right to maintain the national tax system in force on 1 January 1978 and, in so 
doing, to impose VAT on the licence fee, even though it is not remuneration for 
the supply of services within the meaning of Directive 2006/112, the applicants 
claim that, in such a situation, this provision did not grant Denmark the right to 
charge VAT on the media licence fee during the period at issue (2007–2017) on 
account of the amendments made to the derogation scheme after 1 January 1978. 
ASSOCIATION C AND OTHERS 
 
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15 First, the applicants claim that, since the licence fee does not relate to a ‘supply 
for consideration’, the fee is regarded, for VAT purposes, as any other tax for 
which the owners of goods are liable. For that reason alone, any extension of the 
basis of the licence fee, and therefore of the taxable amount, should be regarded as 
an unlawful extension since charging VAT on a tax is not compatible with 
Directive 2006/112. 
16 Second, the applicants submit that there is an unlawful extension of the derogation 
scheme where the immediate effect of the amendment is to increase the group of 
households liable for the licence fee. 
17 Third, the applicants claim that if, as the Skatteministeriet (Danish Ministry of 
Taxation) maintains, when the Sixth Directive was adopted in 1977 the European 
Commission assumed that an equipment-based licence fee, like the Danish fee, 
was subject to the general VAT scheme, that assumption was therefore based 
precisely on the fact that the Danish licence fee was charged at that time on the 
basis of equipment whose sole purpose was to receive either radio or television 
programmes. Such assumptions do not mean that the charging of VAT on the 
licence fee can be lawfully retained when the Danish licensing system has 
subsequently been extended, with the result that the fee may also be charged on 
the basis of equipment whose main purpose is not to receive radio or television 
programmes, such as computers and smartphones. The applicants also claim that 
the amendment has had the effect of removing the Danish derogation scheme from 
the purpose of the Directive. 
18 The applicants add that Article 370 must be defined in accordance with its 
wording, so that it does not allow VAT to be charged on the licence fee where the 
licence fee resources are used to finance purposes other than ‘the activities of 
public radio and television bodies [of a non-commercial nature]’. 
19 The applicants submit, in that regard, that the amendment of the Danish licensing 
system, after which, during the period at issue, up to 5% of the licence fee 
resources were transferred annually to the Ministry of Culture, has had the effect 
of making the media licence fee seem, to an even greater extent, like a tax, in so 
far as the resources are not allocated exclusively to the public radio and television 
bodies, but rather are partly transferred to the Minister for Culture who, based on a 
political agreement between the parties in Folketinget (the Danish Parliament), 
distributed them for other media- and film-related purposes, which is completely 
in line with how levied tax revenue is generally distributed, on the basis of 
political wishes and decisions, and which has had the effect of removing the 
Danish derogation scheme from the purpose of the Directive, contrary to the ban 
on extending a national derogation scheme. 
Defendant’s submissions 
20 Skatteministeriet (Danish Ministry of Taxation) claims that alteration of a 
licensing scheme such as the Danish one does not fall outside the derogation 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-573/22 
 
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scheme provided for in Article 370 of Directive 2006/112, read in conjunction 
with point 2 of Annex X, Part A thereto, since the Danish media licence fee is 
essentially based on the same principles as the previous licensing system. The 
Danish television licensing system has therefore, in principle, always been a fee 
on equipment payable if a household has a (working) device capable of receiving 
and playing audiovisual programmes or services broadcast to the public. In 1978, 
when the Sixth Directive came into force, only televisions had these features. 
With technological development, several devices have these features nowadays, 
which means that the change in 2006 from a television licence fee to a media 
licence fee is nothing more than a – necessary – update of the licensing rules, 
which, as such, does not entail an extension of the Danish VAT scheme for 
licence fees. 
21 Skatteministeriet (Danish Ministry of Taxation) also considers that it is not in 
itself decisive for the scope of Article 370 of Directive 2006/112, read in 
conjunction with point 2 of Annex X, Part A thereto, whether the radio and 
television bodies receiving public subsidies are themselves public or whether the 
media and film organisations themselves carry out radio and television activities, 
provided they meet public service needs. If the Court of Justice does not agree 
with that interpretation, the ministry alternatively considers that Article 370 of 
Directive 2006/112 may, at the very least, apply with regard to the part of the 
licence fee which is unquestionably used to finance ‘the activities of public radio 
and television bodies other than those of a commercial nature’. 
 Succinct presentation of the reasoning in the request for a preliminary 
ruling 
22 The Eastern High Court considers that there are such doubts as to whether 
Article 370 of Directive 2006/112 should be interpreted as allowing Member 
States to impose VAT on a statutory media licence fee to finance the non-
commercial activities of public radio and television bodies, notwithstanding the 
absence of a ‘supply of services for consideration’, within the meaning of 
Article 2(1) of the Directive, that this must be submitted to the Court of Justice. 
The Eastern High Court also considers that there are doubts as to the interpretation 
of Article 370 as regards the determination of what constitutes an unlawful 
alteration of a national derogation scheme.