27.9.2008

Official Journal of the European Union

C 247/4

(Case C-267/08)

(2008/C 247/06)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: SPÖ Landesorganisation Kärnten

Defendant: Finanzamt Klagenfurt

Questions referred

1.Is Article 4(1) 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 (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 organisation 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 advertising’ 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 Directive, is it prejudicial that the activities mentioned in Question 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 inevitable 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?

4.Is there an ‘economic activity’ even where the passing on of the expense does not take place according to readily ascertainable economic criteria (e.g. allocation of 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?

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 representative 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 political parties and a condition sine qua non for the implementing 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 comparable with, or correspond in content to, activities carried out by commercial advertising agencies for the 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.