Case C-369/04: Judgment of the Court (Grand Chamber) of 26 June 2007 (reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — Hutchison 3G UK Ltd, mmO 2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd v Commissioners of Customs and Excise (Sixth VAT Directive — Taxable transactions — Definition of economic activity — Article 4(2) — Allocation of licences making it possible to use a defined part of the radio-frequency spectrum reserved for telecommunications services)
Date: 2007-08-25
Institutions: Court of Justice
Subjects: United Kingdom, VAT, interpretation of the law, telecommunications, trade licence, transmission network, waveband

25.8.2007

EN

Official Journal of the European Union

C 199/3

Operative part of the judgment

Re:

The Court:

1. Declares that, by failing to classify as special protection areas for
birds territories of adequate size in the Autonomous Communities
of Andalusia, the Balearics and the Canaries, and territories of
sufficient number in the Autonomous Communities of Andalusia,
the Balearics, the Canaries, Castilla-La Mancha, Catalonia, Galicia
and Valencia to provide protection for all the species of birds listed
in Annex I to Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds, as amended, inter alia, by Commis-
sion Directive 97/49/EC of 29 July 1997, and the migratory
species not covered by that annex, the Kingdom of Spain has failed
to fulfil
its obligations under Article 4(1) and (2) of Directive
79/409, as amended;

2. Dismisses the remainder of the action;

3. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 201, 7.8.2004.

Judgment of the Court (Grand Chamber) of 26 June 2007
(reference for a preliminary ruling from the Landesgericht
für Zivilrechtssachen Wien (Austria)) — T-Mobile Austria
GmbH, 3G Mobile Telecommunications GmbH, Mobilkom
austria Aktiengesellschaft,
formerly mobilkom austria
AG & Co. KG, Master-talk Austria Telekom Service
GmbH & Co. KG, ONE GmbH, Hutchison 3G Austria
GmbH, Tele.ring Telekom Service GmbH, successor to TRA
3G Mobilfunk GmbH v Republik Österreich

(Case C-284/04) (1)

(Sixth VAT Directive — Taxable transactions — Definition of
‘economic activity’ — Article 4(2) — Allocation of rights
making it possible to use a defined part of the radio-frequency
spectrum reserved for telecommunications services)

(2007/C 199/04)

Language of the case: German

Referring court

Landesgericht für Zivilrechtssachen Wien

Parties to the main proceedings

Applicants: T-Mobile Austria GmbH, 3G Mobile Telecommunica-
tions GmbH, mobilkom austria Aktiengesellschaft,
formerly
mobilkom austria AG & Co. KG, master-talk Austria Telekom
Service GmbH & Co. KG, ONE GmbH, Hutchison 3G Austria
GmbH, tele.ring Telekom Service GmbH, successor to TRA 3G
Mobilfunk GmbH

Reference for a preliminary ruling — Landesgericht für Zivil-
rechtssachen Wien — Interpretation of Article 4(5) of and
item 1 of Annex D to 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)
— Activities or transactions carried out by a body governed by
public law acting as a public authority — Allocation, by
auction, of frequencies to mobile telephony operators

Operative part of the judgment

Article 4(2) 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, is to be interpreted as meaning that the allocation,
by auction by the national regulatory authority responsible for spectrum
assignment, of rights such as rights to use frequencies in the electro-
magnetic spectrum with the aim of providing the public with mobile
telecommunications services does not constitute an economic activity
within the meaning of that provision and, consequently, does not fall
within the scope of that directive.

(1) OJ C 262, 23.10.2004.

Judgment of the Court (Grand Chamber) of 26 June 2007
(reference for a preliminary ruling from the VAT and
Duties Tribunal, London — United Kingdom) — Hutchison
3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd,
Vodafone Group Services Ltd v Commissioners of Customs
and Excise

(Case C-369/04) (1)

(Sixth VAT Directive — Taxable transactions — Definition of
‘economic activity’ — Article 4(2) — Allocation of licences
making it possible to use a defined part of the radio-frequency
spectrum reserved for telecommunications services)

(2007/C 199/05)

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicants: Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd,
T-Mobile (UK) Ltd, Vodafone Group Services Ltd

Defendant: Republik Österreich

Defendant: Commissioners of Customs and Excise

C 199/4

EN

Official Journal of the European Union

25.8.2007

Re:

Defendant: Kingdom of Belgium (represented by: E. Dominkovits
and M. Wimmer, acting as Agents)

Reference for a preliminary ruling — VAT and Duties Tribunal,
London — Interpretation of Article 4(1), (2) and (5) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmoni-
sation 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) — Definition of ‘economic
activity’ — Activities or transactions carried out by a body
governed by public law acting as a public authority — Alloca-
tion, by auction, of spectrum to mobile telephony operators

Re:

Operative part of the judgment

Article 4(1) and (2) 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 is to be interpreted as meaning that
the issuing of licences, such as third generation mobile telecommunica-
tions licences known as ‘UMTS’, by auction by the national regulatory
authority responsible for spectrum assignment of the rights to use tele-
communications equipment does not constitute an economic activity
within the meaning of that provision and, consequently, does not fall
within the scope of that directive.

(1) OJ C 273, 6.11.2004.

Failure of a Member State to fulfil its obligations — Breach of
Articles 18, 39, 43, 49 and 56 of the EC Treaty, of Articles 28,
31, 36 and 40 of the EEA Agreement, and of Articles 5(1) and
53(2) of Directive 2002/83/EC of the European Parliament and
of the Council of 5 November 2002 concerning life assurance
(OJ 2002 L 345, p. 1) — Tax legislation providing for less
favourable treatment of the contributions to occupational retire-
schemes paid to insurance undertakings established
ment
abroad, taxation in Belgium of the capital and surrender values
paid to recipients who have transferred their residence abroad
and the obligation for those undertakings to have a representa-
tive residing in Belgium in order to guarantee payment of the
annual tax on insurance contracts

Judgment of the Court (Second Chamber) of 5 July 2007 —
Commission of the European Communities v Kingdom of
Belgium

(Case C-522/04) (1)

The Court:

Operative part of the judgment

(Failure of a Member State to fulfil obligations — Freedom of
movement for persons — Freedom of movement for workers
— Freedom to provide services — Freedom of establishment
— Free movement of capital — Articles 28, 31, 36 and 40 of
the Agreement on the European Economic Area — Directive
2002/83/EC — Tax legislation providing for less favourable
treatment of contributions to occupational pension schemes
paid to insurance undertakings established abroad — Taxa-
tion in Belgium of capital and surrender values paid to benefi-
ciaries who have transferred their residence abroad — Tax
taxation — Representative
convention preventing double

1. — By making the deductibility of employers' insurance contribu-
tions supplementary pension and life assurance subject to the
condition,
laid down in Article 59 of the Income Tax Code
1992 consolidated by the Royal Decree of 10 April 1992, as
amended by the Law of 28 April 2003 on supplementary
pensions and the tax regime applying thereto and to certain
additional social security advantages, that those contributions
be paid to an insurance undertaking or welfare fund established
in Belgium;

responsible)

(2007/C 199/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and D. Triantafyllou, acting as Agents)

— by making the tax reduction for long-term savings, granted by
virtue of Articles 145/1 and 145/3 of the Income Tax Code
1992, as amended by the Law of 28 April 2003, for personal
supplementary pension and life assurance contributions and
premiums paid in the form of deductions made by the employer
from the employee's remuneration, or in the form of deductions
made by the undertaking from the remuneration of a director
who is not under a contract of employment, subject to the
condition that those contributions and premiums be paid to an
insurance undertaking or welfare fund established in Belgium;