Official Journal of the European Union

(Case C-102/08) (<span class="super">1</span>)

(Sixth VAT Directive - Second and fourth subparagraphs of Article 4(5) - Option of Member States to consider activities of bodies governed by public law exempted under Article 13 and Article 28 of the Sixth Directive as activities of public authorities - Rules governing exercise of that option - Right to deduct - Significant distortions of competition)

2009/C 180/25

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Finanzamt Düsseldorf-Süd

Defendant: SALIX Grundstücks-Vermietungsgesellschaft mbH & Co. Objekt Offenbach KG

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of the second and fourth subparagraphs of Article 4(5) and Article 13 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 (OJ 1977 L 145, p. 1) — Classification of long-term letting of offices and parking spaces by a body governed by public law as an economic activity or as property management — Detailed rules for exercising the power of Member States to treat activities of bodies governed by public law which are exempt from tax under Article 13 or Article 28 of Directive 77/388/EEC as activities in which they engage as public authorities

Operative part of the judgment

1.The Member States must lay down an express provision in order to be able to rely on the option provided for in the fourth subparagraph of Article 4(5) 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, according to which specific activities of bodies governed by public law that are exempt under Article 13 or Article 28 of that directive are considered as activities of public authorities

2.The second subparagraph of Article 4(5) of Sixth Directive 77/388 must be interpreted as meaning that bodies governed by public law are to be considered taxable persons in respect of activities or transactions in which they engage as public authorities not only where their treatment as non-taxable persons under the first or fourth subparagraphs of that provision would lead to significant distortions of competition to the detriment of their private competitors, but also where it would lead to such distortions to their own detriment.

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(<span class="super">1</span> OJ C 142, 07.06.2008)