Case C-284/04: 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
Date: 2004-10-23
Institutions: Court of Justice
Subjects: Austria, VAT, interpretation of the law, mobile phone, national law, quasi-fiscal charge, telecommunications, waveband

C 262/12

EN

Official Journal of the European Union

23.10.2004

President of Chamber, F. Macken (Rapporteur) and S. von Bahr,
Judges; F.G. Jacobs, Advocate General; R.Grass, Registrar, gave
a judgment on 9 September 2004, the operative part of which
is as follows:

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?

1. By failing to adopt the laws, regulations and administrative provi-
sions necessary to comply with Directive 98/44/EC of the Euro-
pean Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological inventions, the Kingdom of Belgium
has failed to fulfil its obligations under Article 15 of that direc-
tive.

2. The Kingdom of Belgium is ordered to pay the costs.

(1) OJ C 289 of 29.11.2003.

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 Euro-
pean Communities by order of the Landesgericht für Zivil-
rechtssachen 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 assess-
ment — (‘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/
TETRA
IMT-2000,
standards
telecommunications
(‘frequency use
systems’) by a Member State in return for a frequency use
payment is a telecommunications activity?

GSM-DCS-1800
rights

and
for mobile

3. Is the third subparagraph of Article 4(5) of the Sixth Direc-
tive 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
or
EUR 4 832 743.47 (TETRA) is to be regarded as an activity
of non-negligible extent, so that the Member State is consid-
ered a taxable person in respect of that activity?

(DCS-1800

channels)

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 telecommu-
nications systems in return for payment of a total of
or
EUR 831 595 241.10
or
EUR 98 108 326.00
EUR 4 832 743.47 (TETRA), does not
those
payments to turnover tax and private bidders for those
frequencies must subject that activity to turnover tax?

2000)
channels)
subject

(UMTS/IMT

(DCS-1800

5. Is the first subparagraph of Article 4(5) of the Sixth Direc-
tive to be interpreted as meaning that an activity of a
Member State which allocates frequency use rights for
mobile telecommunications systems to mobile telecommu-
nications 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
law of the act
nature under the Member State's national
which effects the allocation?

the allocation of

6. Is Article 4(2) of the Sixth Directive to be interpreted as
meaning that
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)?

2. Is the third subparagraph of Article 4(5) of the Sixth Direc-
tive 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

(1) OJ L 145, p. 1.