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C 273/14 EN Official Journal of the European Union 6.11.

2004

1. Does the prohibition on putting measures into effect under 2. In the circumstances set out in the Agreed Statement of
Article 88(3) EC preclude the application of a national legal Facts what considerations are relevant to the question
provision which excludes businesses whose activity is not whether or not the Secretary of State, in conducting the
shown to consist primarily in the manufacture of goods Activity, was acting as a ‘public authority’ within the
from energy tax rebates and which must therefore be classi- meaning of Article 4(5) of the Sixth Directive?
fied as aid within the meaning of Article 87 EC, but which
was not notified to the Commission prior to the national
entry into force of the rules, even where the Commission
has found the measure to be compatible with the common
market under Article 87(3) EC for a period in the past and
3. In the circumstances set out in the Agreed Statement of
the application for reimbursement relates to taxes payable
Facts, can the Activity be (i) in part an economic activity
for that period?
and in part not, and/or (ii) partly carried out by a body
governed by public law acting as a public authority and
2. If so, partly not, with the result that the activity would be partly
chargeable to VAT under the Sixth Directive and partly not?
in such a case does the prohibition on putting measures
into effect require a rebate even in cases where the applica-
tions were made by service businesses after the adoption of
the Commission's decision for assessment periods prior to
that date? 4. How likely and how close in time to the carrying out of an
activity such as the Activity does a ‘significant distortion of
competition’ within the meaning of the second sub-para-
graph of Article 4(5) of the Sixth Directive have to be in
order for the person carrying out that activity to be required
by that sub-paragraph to be considered a taxable person in
respect of that activity? To what extent, if any, does the
principle of fiscal neutrality bear on that question?

5. Does the word ‘telecommunications’ in Annex D to the


Sixth Directive (which is referred to in the third sub-para-
Reference for a preliminary ruling by the VAT and Duties graph of Article 4(5) of the Sixth Directive) include the
Tribunals, London Tribunal Centre, by direction of that issuing of the Licenses by the Secretary of State by way of
court dated 24 August 2004, in the case of Hutchison 3G an auction of rights to use telecommunications equipment
UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, in defined parts of the electro-magnetic spectrum, in the
Vodafone Group Services Ltd against Commissioners of circumstances set out in the Agreed Statement of Facts?
Customs and Excise

(Case C-369/04)
6. Where (i) a Member State chooses to implement Articles
4(1) and 4(5) of the Sixth Directive by legislation conferring
(2004/C 273/27) on a Government department (such as, in this case, the UK
Treasury) a statutory power to make directions specifying
which goods or services supplied by Government depart-
ments are to be treated as taxable supplies and (ii) that
Reference has been made to the Court of Justice of the Euro- Government department makes, or purports to make,
pean Communities by direction of the VAT and Duties Tribu- pursuant to that statutory power, directions specifying that
nals, London Tribunal Centre, dated 24 August 2004, which certain supplies are taxable: is the principle set out in Case
was received at the Court Registry on 26 August 2004 for a C-106/89 Marleasing [1990] ECR 1-4135, paragraph 8 rele-
preliminary ruling in the case of Hutchison 3G UK Ltd, mmO2 vant to the interpretation of the domestic legislation and of
plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group those Directions (and if so, how)?
Services Ltd and Commissioners of Customs and Excise on the
following questions:
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
1. In the circumstances set out in the Agreed Statement of — Common system of value added tax: uniform basis of assessment
(OJ L 145, 13.6.1977, p. 1).
Facts, is the term ‘economic activity’ for the purposes of
Articles 4(1) and 4(2) of the Sixth Directive (1) to be inter-
preted as including the issuing of the Licences by the Secre-
tary of State by way of an auction of rights to use telecom-
munications equipment in defined parts of the electro-
magnetic spectrum (the Activity), and what considerations
are relevant to that question?