Judgment of the Court (Fifth Chamber) of 14 December 2000 in Case C-446/98 (reference for a preliminary ruling from the Supremo Tribunal Administrativo, Portugal): Fazenda Pública v Câmara Municipal do Porto (Taxation — Sixth VAT Directive — Taxable persons — Bodies governed by public law — Letting of spaces for the parking of vehicles)
Date: 2001-05-05
Institutions: Court of Justice
Subjects: hiring, interpretation of the law, parking area, public authorities, restriction on competition

C 134/2

EN

Official Journal of the European Communities

5.5.2001

Communities (Agent: F.P. Ruggeri Laderchi) — application for
the annulment of Commission Regulation (EC) No 2815/98
of 22 December 1998 concerning marketing standards for
olive oil (OJ 1998 L 349 p. 56) or, in the alternative, of
Articles 1, 2(1) and the third subparagraph of 2(2), the third
subparagraph of Article 3(2), and Article 3(3) of that regulation
— the Court (Fifth Chamber), composed of: A. La Pergola,
President of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann
(Rapporteur) and L. Sevo´ n, Judges; S. Alber, Advocate General;
H. von Holstein, Deputy Registrar, has given a judgment on
14 December 2000, in which it:

1. Dismisses the application;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 188 of 3.7.1999.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 14 December 2000

in Case C-446/98 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo, Portugal): Fazenda
Pu´ blica v Câmara Municipal do Porto (1)

(Taxation — Sixth VAT Directive — Taxable persons —
Bodies governed by public law — Letting of spaces for the
parking of vehicles)

(2001/C 134/03)

(Language of the case: Portuguese)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-446/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Supremo Tribunal
Administrativo (Supreme Administrative Court, Portugal) for
a preliminary ruling in the proceedings pending before that
court between Fazenda Pu´ blica and Câmara Municipal do
Porto, third party: Ministério Pu´ blico — on the interpretation
of Article 4(5) of Sixth Council Directive 77/388/EEC 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 (OJ 1977 L 145, p. 1)
— the Court (Fifth Chamber), composed of: A. La Pergola
(Rapporteur), President of the Chamber, D.A.O. Edward and
Judges; S. Alber, Advocate General; L. Hewlett,
P.
Administrator, for the Registrar, has given a judgment on
14 December 2000, in which it has ruled:

Jann,

1.

2.

3.

4.

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
meaning of the first subparagraph of Article 4(5) of Sixth
Council Directive 77/388/EEC of 17 May 1977 oil the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment, if it is carried on under a special legal
regime applicable to bodies governed by public law. That is the
case where the pursuit of the activity involves the use of public
powers.

The third subparagraph of Article 4(5) of Sixth Directive
77/388 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 that 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
Sixth Directive 77/388, of excluding them from being taxable
persons for value added tax purposes where their activities are
negligible.

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 Sixth Directive 77/388
and, second, the concept of negligible activities within the
meaning of the third subparagraph of Article 4(5) of that
directive, provided that his decisions of application may be
reviewed by the national courts.

The fourth subparagraph of Article 4(5) of Sixth Directive
77/388 must be interpreted as meaning that the absence of an
exemption for the letting of spaces for the parking of vehicles,
which follows from Article 13(b) of that 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 are satisfied.

5. A national court is entitled, and in certain cases obliged, to
refer to the Court, even of its own motion, a question concerning
the interpretation of Directive 77/388, if it considers that a
decision on the point by the Court is necessary for it to give
judgment, and once it has made that reference it is bound by
the Court’s decision when it gives final judgment in the main
proceedings.

(1) OJ C 33 of 6.2.1999.