Case C-267/08: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Klagenfurt (Austria) lodged on 20 June 2008 — SPÖ Landesorganisation Kärnten v Finanzamt Klagenfurt
Date: 2008-06-20
Institutions: Court of Justice
Subjects: advertising, interpretation of the law, party financing, party organisation, political parties

C 247/4

EN

Official Journal of the European Union

27.9.2008

from the entry of the amount of duty in the accounts for
own resources as referred to in Article 6 of Regulation
No 1150/2000 (2) of 22 May 2000 implementing Decision
the Communities'
94/728/EC, Euratom on the system of
own resources?

Reference for a preliminary ruling from the Unabhängiger
Finanzsenat, Außenstelle Klagenfurt (Austria) lodged on
20 June 2008 — SPÖ Landesorganisation Kärnten v
Finanzamt Klagenfurt

3. Should Article 221(1) of the Community Customs Code be
understood to mean that a notification of the amount of
duty by the customs authorities to the debtor in accordance
with appropriate procedures can be regarded as the commu-
nication of the amount of duty by the customs authorities as
referred to in Article 221(1) only if the amount of duty was
entered in the accounts before being brought to the debtor's
is meant by the words ‘in
attention? In addition, what
accordance with
in
Article 221(1)?

appropriate

procedures’

used

4. If the answer to the third question is affirmative, can an
assumption be made to the advantage of the State that the
amount of duty was entered in the accounts before being
communicated to the debtor? Can the national court also
proceed on the assumption that
the declaration by the
customs authorities that the amount of duty was entered in
the accounts before being communicated to the debtor is
true, or should those authorities submit written evidence of
the entry of the amount of duty in the accounts to the
national court as a matter of course?

5. Must

the entry of

the amount of duty in the accounts
required by Article 221(1) of the Community Customs Code
precede its communication to the debtor on pain of the
annulment or expiry of the right to proceed to recovery or
post-clearance recovery of the customs debt? In other words,
should Article 221(1) be understood to mean that,
if the
amount of duty is brought to the attention of the debtor by
in accordance with appropriate
the customs authorities
procedures, but without the amount of duty having been
entered in the accounts by the customs authorities prior to
that notification, the amount of duty cannot be recovered,
unless the customs authorities again bring the amount of
duty to the debtor's attention in accordance with appropriate
procedures after the amount of duty has been entered in the
accounts and in so far as that occurs within the limitation
period laid down in Article 221 of the Community Customs
Code?

6. If the fifth question is answered in the affirmative, what is
the consequence of
the
amount of duty communicated to him without its having
been previously entered in the accounts? Should this be
regarded as an undue payment which he may recover from
the State?

the payment by the debtor of

(1) OJ 1992 L 302, p. 1.
(2) OJ 2000 L 130, p. 1.

(Case C-267/08)

(2008/C 247/06)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Klagenfurt

Parties to the main proceedings

Applicant: SPÖ Landesorganisation Kärnten

Defendant: Finanzamt Klagenfurt

Questions referred

relating to turnover

1. Is Article 4(1) of Sixth Council Directive 77/388/EEC of
the
the laws of
17 May 1977 on the harmonisation of
Member States
taxes — Common
system of value added tax: uniform basis of assessment (1)
(the Sixth Directive) to be interpreted in such a way that
‘external advertising’ by the legally independent provincial
organisation of a political party, taking the form of publicity,
information provision, the staging of party events, the supply
of advertising material to district organisations and the orga-
nisation and holding of an annual ball (the SPÖ Ball), is to
be regarded as an economic activity if revenue is obtained
from (partially) passing the expense of the ‘external adver-
tising’ on to the likewise legally independent party structures
(district organisations etc.) and from entrance fees from the
holding of the ball?

2. In the assessment of whether there is ‘economic activity’
within the meaning of Article 4(1) and (2) of the Sixth Direc-
tive, is it prejudicial that the activities mentioned in Ques-
tion 1 are also ‘reflected’ back to the provincial organisation
and hence are beneficial to it too? It is in the nature of
things that as a result of those activities the party as such
and its political objectives and views are always also being
publicised, if not in the forefront, nevertheless as an inevi-
table side effect.

3. Can there still be ‘economic activity’

in the above sense
where the expenditure on ‘external advertising’ persistently
exceeds many times over the revenue obtained from that
activity by passing on the expense and the revenue obtained
from holding the ball?

economic

4. Is there an ‘economic activity’ even where the passing on of
the expense does not take place according to readily ascer-
tainable
charges
according to cause or benefit) and it is essentially left to the
subordinate organisations to determine whether and to what
extent they wish to contribute to the expenditure of the
provincial organisations?

allocation of

criteria

(e.g.

27.9.2008

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Official Journal of the European Union

C 247/5

5. Is there an ‘economic activity’ even where advertising services
are invoiced to the subordinate organisations in the form of
a charge the amount of which is determined firstly by the
number of members in the relevant local organisation and
secondly by the number of members it sends to representa-
tive assemblies?

6. In determining whether there is economic activity, should
subsidies from public funds which do not form part of the
taxable consideration (such as, for example, the financing of
parties under the Carinthian Parteienförderungsgesetz (Law
on the financing of parties) be taken into consideration as it
were as economic advantages?

7. If the ‘external advertising’, viewed in isolation, constitutes
an economic activity within the meaning of Article 4(1) and
(2) of the Sixth Directive, does the fact that publicity and
election advertising is a central feature of the activity of poli-
tical parties and a condition sine qua non for the imple-
menting of political objectives and programmes preclude
such activity from being classified as an ‘economic activity’?

8. Are the activities performed by the appellant and described
by it as ‘external advertising’ of such a nature as to be
to, activities
comparable with, or correspond in content
the
carried out by commercial advertising agencies for
purposes of Annex D (number 10) of the Sixth Directive? If
that question is answered affirmatively, can the extent of the
activities be described as ‘not insignificant’ in the context of
the revenue/expenditure structure prevailing at the material
time for the purposes of the appeal?

(1) OJ L 145, p. 1.

Form of order sought

— declare that,

— by requiring, on registration of imported vehicles for
which there is proof of type-approval with regard to
roadworthiness by another Member State, that, at the
time of that type-approval with regard to roadworthi-
ness, a vehicle complies with the technical requirements
in force at that time in the Czech Republic and

— by requiring,

in the event of non-fulfilment of those
the vehicle
requirements, a test
complies with the technical requirements in force for the
given category of vehicles in the Czech Republic at the
time of the vehicle's manufacture,

to verify whether

the Czech Republic has failed to fulfil its obligations under
Article 28 of the Treaty establishing the European Com-
munity;

— order the Czech Republic to pay the costs.

Pleas in law and main arguments

Under Czech Law, the conditions for the registration of second-
hand vehicles imported into the Czech Republic from other
Member States where they were previously registered, are laid
down by Law No 56/2001 Coll. (1). Article 35(1) and (2) of Law
No 56/2001 Coll. lays down conditions for the registration of
individually imported second-hand vehicles for which there is
type-approval with regard to roadworthiness by
proof of
another Member State.

technical units fulfilled, at

The Czech authorities approve the roadworthiness of such a
vehicle provided that the vehicle, its systems, structural parts or
independent
type-
approval with regard to roadworthiness in another EU Member
State, the technical requirements in force at that time in the
Czech Republic and laid down in the implementing legislation
(Article 35(1) of Law No 56/2001 Coll.).

the time of

Action brought on 2 July 2008 — Commission of the
European Communities v Czech Republic

(Case C-294/08)

(2008/C 247/07)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and M. Šimerdová, acting as Agents)

Defendant: Czech Republic

If, at the time of type-approval with regard to roadworthiness in
another Member State, the vehicle, its systems, structural parts
or independent technical units did not fulfil the conditions in
force at that time in the Czech Republic and laid down in the
implementing legislation, the appropriate authority is to decide
on approval of roadworthiness for the vehicle on the basis of
the technical report issued by the testing centre. The testing
centre is to issue a technical certificate if the vehicle fulfils the
technical conditions in force for the given category of vehicle in
the Czech Republic at the time of the vehicle's manufacture
(Article 35(2) of Law No 56/2001 Coll.).

It follows from Article 35(1) and (2) of Law No 56/2001 that
the roadworthiness of all second-hand vehicles,
for which
another Member State has issued a certificate of type-approval
with regard to roadworthiness,
is always re-examined in the
light of Czech law. That approach is, in the Commission's view,
in breach of the principle of the freedom of moment of goods,
according to which goods placed on the market in accordance
with the legislation of one Member State must be admitted to
the markets of all other Member States. The Czech legislation
does not in any way take account of the results of the road-
worthiness test carried out on the vehicles in question in
another Member State, thereby constituting an infringement of
Article 3(2) of Council Directive 96/96/EC.