Fazenda Pública v Câmara Municipal do Porto.
Date: 2000-12-14
15 On this point, it should be noted that, as the Court has held on numerous occasions, it is clear from that provision, when examined in the light of the aims of the Sixth Directive, that two conditions must be fulfilled for the rule of treatment as a non-taxable person to apply: the activities must be carried out by a body governed by public law and they must be carried out by that body acting as a public authority (see in particular Case C-202/90 Ayuntamiento de Sevilla v Recaudadores de Tributos de las Zonas Primera y Segunda [1991] ECR I-4247, paragraph 18).
16 As regards the latter condition, it is the way in which the activities are carried out that determines the scope of the treatment of public bodies as non-taxable persons (Joined Cases 231/87 and 129/88 Ufficio Distrettuale delle Imposte Dirette di Fiorenzuola d'Arda and Others v Comune di Carpaneto Piacentino and Others [1989] ECR 3233, paragraph 15, and Case C-4/89 Comune di Carpaneto Piacentino and Others v Ufficio Provinciale Imposta sul Valore Aggiunto di Piacenza [1990] ECR I-1869, paragraph 10).
17 It is thus clear from the settled case-law of the Court that activities pursued as public authorities within the meaning of the first subparagraph of Article 4(5) of the Sixth Directive are those engaged in by bodies governed by public law under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private economic operators (see in particular Case C-276/97 Commission v France, paragraph 40, Case C-358/97 Commission v Ireland, paragraph 38, Case C-359/97 Commission v United Kingdom, paragraph 50, Case C-408/97 Commission v Netherlands, paragraph 35, and Case C-260/98 Commission v Greece, paragraph 35, not yet reported in the ECR).
19 In determining whether such an activity is engaged in by the CMP as a public authority, it must be noted, first, that this cannot depend on the subject-matter or purpose of the activity (Joined Cases 231/87 and 129/88 Comune di Carpaneto Piacentino, paragraph 13).
22 The fact that the pursuit of an activity such as that at issue in the main proceedings involves the use of public powers, such as authorising or restricting parking on a public highway or penalising by a fine the exceeding of the authorised parking time, shows that this activity is subject to a public law regime.
23 In view of the nature of the analysis to be carried out, however, as the Court has already held, it is for the national court to classify the activities at issue in the light of the criterion adopted by the Court (Joined Cases 231/87 and 129/88 Comune di Carpaneto Piacentino, paragraph 16, and Case C-4/89 Comune di Carpaneto Piacentino, paragraph 11).
26 On this point, the Court has held that the third subparagraph of Article 4(5) of the Sixth Directive must be interpreted as meaning that under that provision the Member States are free to exclude the activities listed in Annex D from the scope of compulsory tax liability in so far as they are negligible, but are not required to do so (Joined Cases 231/87 and 129/88 Comune di Carpaneto Piacentino, paragraph 27).
31 In accordance with that provision, the Court has already held that the second subparagraph of Article 4(5) of the Sixth Directive, under which the Member States are required to ensure that bodies governed by public law are treated as taxable persons where the contrary would lead to significant distortions of competition, does not, on the other hand, require them to transpose that criterion literally into their national law or to lay down precise quantitative limits for treatment as non-taxable persons (Joined Cases 231/87 and 129/88 Comune di Carpaneto Piacentino, paragraph 23).
32 Similarly, Member States are free to choose, from the various methods of achieving the results defined by the second and third subparagraphs of Article 4(5) of the Sixth Directive, that of entrusting an administrative body with the task of specifying the situations in which an activity carried on by a body governed by public law may be regarded as bringing about significant distortions of competition or as being negligible and of applying those criteria to individual cases, provided that its decisions on application may be reviewed by the national courts.
33 That conclusion is consistent with the settled case-law of the Court, relied on by the Commission, under which mere administrative practices, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting proper fulfilment of obligations under the Treaty (see in particular Case C-203/98 Commission v Belgium [1999] ECR I-4899, paragraph 14).
35 The answer to the second and fifth questions must therefore be that 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 the Sixth Directive and, second, the concept of negligible activities within the meaning of the third subparagraph of Article 4(5) of the Sixth Directive, provided that his decisions of application may be reviewed by the national courts.
Question 3
41 It must be noted that the fourth subparagraph of Article 4(5) of the Sixth Directive, besides activities of bodies governed by public law which are not taxable by virtue of the first subparagraph of that provision, gives Member States the option of excluding bodies governed by public law from treatment as taxable persons in respect of activities exempt from VAT inter alia under Article 13 of that directive (see Case C-247/95 Finanzamt Augsburg-Stadt v Marktgemeinde Welden [1997] ECR I-779, paragraph 19).
43 Where those activities are thus treated as activities engaged in by bodies governed by public law acting as public authorities, they must also, in order to be non-taxable under the first paragraph of Article 4(5) of the Sixth Directive, satisfy the conditions in the second subparagraph of that provision (see Marktgemeinde Welden, paragraph 21).
44 The letting of spaces for the parking of vehicles is excluded from the activities exempted under Article 13B(b) of the Sixth Directive by point 2 of that provision, with the consequence that such an activity cannot be treated under the fourth subparagraph of Article 4(5) of the Sixth Directive as an activity engaged in by a body acting as a public authority within the meaning of the first subparagraph of that provision, if it does not in itself satisfy that condition.
48 It is settled case-law that national courts are entitled, and in certain cases obliged, to refer a question of the interpretation or validity of Community law to the Court, either of their own motion or at the request of the parties to the main proceedings, if they consider that a decision on that point by the Court is necessary to enable them to give judgment (see in particular Case 166/73 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33, paragraph 3, and Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 7). That power to raise of its own motion a question of Community law presupposes that the national court considers either that Community law must be applied and, if necessary, national law disapplied or that national law must be interpreted in a way that conforms with Community law (see Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others v Sociale Verzekeringsbank [1991] ECR I-3757, paragraph 13).
49 It is also settled case-law that a judgment in which the Court gives a preliminary ruling is binding on the national court for the purposes of the decision to be given in the main proceedings (see in particular Case 52/76 Benedetti v Munari [1977] ECR 163, paragraph 26, and the order in Case 69/85 Wünsche Handelsgesellschaft [1986] ECR 947, paragraph 13).