Keywords
Summary

Keywords

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1.Tax provisions - Harmonization of laws - Turnover taxes - Common system of value-added tax - Taxable persons - Bodies governed by public law - Treatment as non-taxable persons in respect of activities in which they engage as public authorities - Concept - Treatment as taxable persons in the case of distortions of competition and of economic activities whose importance derives from their subject-matter and which are not carried out on a negligible scale - Scope - Transposition of the corresponding criteria into national law - Obligations of the Member States

( Council Directive 77/388, Art . 4(5 ) )

2.Tax provisions - Harmonization of laws - Turnover taxes - Common system of value-added tax - Taxable persons - Bodies governed by public law - Treatment as non-taxable persons in respect of activities in which they engage as public authorities - National legislation providing for treatment as a taxable person in a case not provided for in the directive - Possibility for bodies governed by public law to rely on the relevant provision of the directive

( Council Directive 77/388, Art . 4(5 ) )

Summary

1.The first subparagraph of Article 4(5 ) of the Sixth Directive on the harmonization of the laws of the Member States relating to turnover taxes must be interpreted as meaning that activities pursued "as public authorities" within the meaning of that provision 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 traders . Activities engaged in by bodies governed by public law not as bodies governed by public law but as persons subject to private law are therefore excluded from the rule of treatment as non-taxable persons . It is for each Member State to choose the appropriate legislative technique for transposing into national law the rule of treatment as a non-taxable person laid down in that provision .

The second subparagraph must be interpreted as meaning that the Member States are required to ensure that bodies governed by public law are treated as taxable persons in respect of activities in which they engage as public authorities where those activities may also be engaged in, in competition with them, by private individuals under a regime governed by private law or on the basis of administrative concessions, in cases in which their treatment as non-taxable persons could lead to significant distortions of competition, but they are not obliged to transpose that criterion literally into their national law or to lay down precise quantitative limits for such treatment .

The third subparagraph, which seeks to ensure that certain categories of economic activity the importance of which derives from their subject-matter and which are listed in Annex D are not subject to VAT on the ground that they are carried out by bodies governed by public law as public authorities, must be interpreted as meaning that the Member States are free to exclude the said activities from the scope of the rule of mandatory treatment as a taxable person in so far as they are carried out on a negligible scale, but are not required to do so . It does not therefore require the Member States to transpose into their tax legislation the criterion of the non-negligible scale of activities as a condition for treating them as taxable .

2.A body governed by public law may rely on Article 4(5 ) of the Sixth Directive for the purpose of opposing the application of a national provision making it subject to VAT in respect of an activity in which it engages as a public authority, which is not listed in Annex D to the directive and whose treatment as non-taxable is not liable to give rise to significant distortions of competition .