Judgment — ECLI:EU:C:2009:345
Date: 2009-06-04
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Concepts: Bodies governed by public law
Procedure: Reference for a preliminary ruling
Origin: Germany

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 – Treatment as non-taxable persons in respect of activities in which they engage as public authorities (Council Directive 77/388, Art. 4(5), fourth para.) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable persons – Bodies governed by public law – Treatment as non-taxable persons in respect of activities in which they engage as public authorities (Council Directive 77/388, Art. 4(5), second para.) 1. The Member States must lay down an express provision in order to be able to rely on the option provided for in the fourth subparagraph of Article 4(5) of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, according to which specific activities of bodies governed by public law exempt under Article 13 or Article 28 of that directive are considered to be activities of public authorities. The Member States may choose the legislative technique which they regard as the most appropriate. Thus they may, for example, merely incorporate into national law the form of words used in the Sixth Directive or an equivalent expression or they may draw up a list of activities of bodies governed by public law exempted under Article 13 or Article 28 of the Sixth Directive which are considered to be activities of the public authority. An executive authority may be authorised by a legal provision to specify the activities of bodies governed by public law exempted under Article 13 or Article 28 of the Sixth Directive which are considered to be activities of public authorities, provided that its decisions of application have an unquestionable binding force, comply with the requirements that they be specific, precise and clear so as to guarantee legal certainty and may be reviewed by the national courts. (see paras 56-58, operative part 1) 2. The second subparagraph of Article 4(5) of 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 to be considered taxable persons in respect of activities or transactions in which they engage as public authorities not only where their treatment as non-taxable persons under the first or fourth subparagraphs of that provision would lead to significant distortions of competition to the detriment of their private competitors, but also where it would lead to such distortions to their own detriment. (see para. 76, operative part 2)