C-249/22 GIS

JUDGMENT OF THE COURT (Fifth Chamber)

26 October 2023 ( *1 )

(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(c) – Supply of services for consideration – Concept – Activities of a public radio and television body financed by a compulsory fee paid by persons in possession of a radio and television receiver in the terrestrial broadcasting area – Article 378(1) and point 2 of Part A of Annex X – Act of accession of the Republic of Austria – Derogation – Scope)

In Case C‑249/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 16 March 2022, received at the Court on 11 April 2022, in the proceedings

BM

v

Gebühren Info Service GmbH (GIS),

interveners:

Bundesministerium für Finanzen,

Österreichischer Rundfunk,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, F. Biltgen, M. Ilešič, I. Jarukaitis and D. Gratsias (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: M. Siekierzyńska, Administrator,

having regard to the written procedure and further to the hearing on 15 February 2023,

after considering the observations submitted on behalf of:

BM, by F. List, Rechtsanwältin, and W. List, Rechtsanwalt,

Gebühren Info Service GmbH (GIS), by S. Lenzhofer, Rechtsanwalt,

the Österreichischer Rundfunk, by T. Wenger and H. Wollmann, Rechtsanwälte,

the Austrian Government, by A. Posch, F. Koppensteiner and B. Kuder, acting as Agents,

the Danish Government, by J.F. Kronborg and V. Pasternak Jørgensen, acting as Agents,

the French Government, by R. Bénard, acting as Agent,

the European Commission, by J. Jokubauskaitė and B. Martenczuk, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 May 2023,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 2(1)(c) and Article 378(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’), read in conjunction with Article 151(1) and the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1; ‘the Act of Accession’).

2The request has been made in proceedings between BM and Gebühren Info Service GmbH (GIS) concerning BM’s application to GIS for reimbursement of value added tax (VAT) on the programme fee for the period from 1 October 2013 to 31 October 2018.

Legal context

European Union law

The Act of Accession

3Article 151(1) of the Act of Accession provides:

‘The Acts listed in Annex XV to this Act shall apply in respect of the new Member States under the conditions laid down in that Annex.’

4Annex XV to the Act of Accession contains Part IX, entitled ‘Taxation’, point 2 of which is worded as follows:

‘377 L 0388: Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ [1977 L 145], p. 1), as last amended by:

394 L 0005: Council Directive 94/5/EC of 14 February 1994 (OJ [1994 L 60], p. 16).

Austria

…

For the purposes of applying Article 28(3)(a), the Republic of Austria may tax:

…

the transactions listed in point 7 of Annex E.

…’

The VAT Directive

5Directive 77/388 (‘the Sixth Directive’) was repealed pursuant to Article 411(1) of the VAT Directive. Paragraph 2 of that article provides that references to the Sixth Directive are to be construed as references to the VAT Directive and are to be read in accordance with the correlation table in Annex XII to that directive.

6Article 1(1) of that directive provides:

‘This Directive establishes the common system of [VAT].’

7Article 2(1)(c) of the VAT Directive provides that the supply of services for consideration within the territory of a Member State by a taxable person acting as such is to be subject to VAT.

8According to the correlation table in Annex XII to the VAT Directive, Article 132(1)(q) of that directive corresponds to Article 13A(1)(q) of the Sixth Directive. It provides that Member States are to exempt ‘the activities, other than those of a commercial nature, carried out by public radio and television bodies’.

9Article 370 of that directive, which corresponds to Article 28(3)(a) of the Sixth Directive, provides:

‘Member States which, at 1 January 1978, taxed the transactions listed in Annex X, Part A, may continue to tax those transactions.’

10Article 378(1) of that directive, which corresponds to the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession, provides:

‘Austria may continue to tax the transactions listed in point (2) of Annex X, Part A.’

11Point 2 of Part A of Annex X to the VAT Directive refers to ‘the activities, other than those of a commercial nature, carried out by public radio and television bodies’. Those activities were previously referred to in point 7 of Annex E to the Sixth Directive.

Austrian law

The RGG

12Under Paragraph 2(1) of the Bundesgesetz betreffend die Einhebung von Rundfunkgebühren (Federal Law on the levying of broadcasting fees, BGBl. I, 159/1999), in the version applicable to the dispute in the main proceedings (‘the RGG’), any person who operates a broadcast receiver in a building must pay the fee provided for in Paragraph 3 of the RGG (‘the broadcasting fee’). The possession of an operational broadcast receiver is deemed to be equivalent to the use of such a receiver.

13Paragraph 4(1) of the RGG provides that the broadcasting fee and all other related taxes and dues are to be collected by GIS, which is also responsible for deciding on applications for exemption in that connection.

The ORF-G

14Paragraph 1(1) of the Bundesgesetz über den Österreichischen Rundfunk (Federal Law on the Österreichischer Rundfunk, BGBl. 379/1984), in the version applicable to the dispute in the main proceedings (BGBl. I, 55/2014) (‘the ORF-G’), established a foundation governed by public law called the Österreichischer Rundfunk (Austrian Broadcasting Corporation; ‘the ORF’).

15Paragraph 31 of the ORF-G, entitled ‘Programme fee’, provides, in subparagraphs 1, 10 and 17:

‘(1) All persons are entitled to receive ORF radio and television programmes on payment of a continuous programme fee (radio fee, television fee). The amount of the programme fee is set by the Board of Trustees at the request of the Director-General. …

…

(10) The programme fee is payable irrespective of the frequency and quality of the broadcasts or their reception provided that the broadcast user (Paragraph 2(1) of the RGG) is supplied with ORF programmes by terrestrial means (analogue or DVB-T) at his or her location … The commencement and termination of the obligation to pay the programme fee and exemption from that obligation shall be governed by the provisions of federal law applicable to broadcasting fees.

…

(17) The programme fee shall be collected at the same time and in the same manner as the licence fee; any other form of payment shall not discharge the debt.’

The UStG

16Paragraph 1(1) of the Bundesgesetz über die Besteuerung der Umsätze (Federal law on turnover tax, BGBl. 663/1994), in the version applicable to the dispute in the main proceedings (‘the UStG 1994’), provides:

‘The following transactions are subject to turnover tax:

1. the supply of goods and services for consideration within the national territory by a trader in the course of his or her business. Transactions are not excluded from taxation where they are carried out pursuant to statute or an order of an authority or are deemed to be carried out under statutory provisions;

…’

17Paragraph 10 of the UStG 1994, entitled ‘Tax rates’, states:

‘(1) The rate of tax shall be 20% of the taxable amount in respect of every taxable transaction (Paragraphs 4 and 5).

(2) The rate of tax shall be reduced to 10% for

…

5services provided by broadcasting companies, in so far as they give rise to radio and television broadcasting fees, and other services provided by cable television companies in so far as they consist in the simultaneous, complete and unaltered transmission of national and foreign radio and television programmes made available to the public through channels in return for a continuous fee;

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

18BM is registered with GIS to use broadcasting services in an area where ORF supplies digital terrestrial programmes which can be received by means of an internal antenna.

19On 23 October 2018, BM requested GIS to issue a decision declaring that she was entitled to reimbursement of the total amount of EUR 100.57, equal to the VAT on the programme fee which she was required to pay under Paragraph 31(1) of the ORF-G, for the period from 1 October 2013 to 31 October 2018. In support of her application, BM claimed, in essence, that the imposition of VAT on the programme fee was contrary to the VAT Directive, read in the light of the judgment of 22 June 2016, Český rozhlas (C‑11/15, EU:C:2016:470).

20GIS adopted a decision rejecting BM’s application. BM brought an action challenging that decision before the Bundesverwaltungsgericht (Federal Administrative Court, Austria), which was dismissed. BM brought an appeal on a point of law (‘Revision’) against the judgment of the Bundesverwaltungsgericht (Federal Administrative Court) before the referring court.

21The referring court states that GIS is responsible for collecting both the broadcasting fee and the programme fee. However, whereas the broadcasting fee is payable by any broadcast user who operates or has in his or her possession an operational broadcast receiving device such as a television set or a radio, regardless of the place of reception, the programme fee, which is the only one subject to VAT, is payable only if the place of reception is within the terrestrial broadcasting area for ORF programmes.

22In that regard, the referring court notes that, in a judgment of 4 September 2008, it had held that the programme fee was payable only if the person concerned had a device enabling him or her to actually receive ORF programmes. In 2011, following that judgment, Paragraph 31(10) of the ORF-G was amended by the addition of the words ‘provided that the broadcast user (Paragraph 2(1) of the RGG) is supplied with ORF programmes by terrestrial means (analogue or DVB-T) at his or her location’. It is apparent from the statement of reasons for that amendment that the possession of specific technical equipment which makes it possible to receive ORF programmes, if necessary after a minor adaptation, such as the acquisition of a digital reception module for television programmes, is decisive for the obligation to pay the programme fee. On the other hand, where the programmes can be received only by means of complex or costly measures, there is no obligation to pay that fee. It is thus possible that a broadcast user may be required to pay only the broadcasting fee, where he or she has a television or radio set which is not in an area in which ORF programmes can be received by terrestrial means.

23The referring court considers that the circumstances of the present case are different from those of the case which gave rise to the judgment of 22 June 2016, Český rozhlas (C‑11/15, EU:C:2016:470). First, under Austrian law, there is, by virtue of a legislative fiction, a contractual relationship under civil law between the broadcast user and the ORF.

24Second, ORF programmes are encrypted and receiving them requires a reception module which complies with digital television standards (DVB-T, DVB-S or DVB-C), or the conclusion of a contract with a cable television operator offering ORF programmes in its package. It could thus be argued that by acquiring such equipment or concluding such a contract, broadcast users express their intention to avail themselves of their right to receive ORF programmes, which establishes a legal relationship between those users and ORF. Relying, by analogy, on the judgment of 21 March 2002, Kennemer Golf (C‑174/00, EU:C:2002:200), the referring court takes the view that the frequency with which ORF programmes are actually watched or listened to by a broadcast user is, in that regard, irrelevant.

25In addition, the referring court states that Austrian tax law already provided, before the accession of the Republic of Austria to the European Union, for the levying of VAT at a reduced rate on the services provided by broadcasting companies, in so far as they are subject to radio and television broadcasting fees. According to the referring court, it is apparent from the documents relating to the negotiations for the accession of the Republic of Austria to the Union that the objective of the derogation granted to the Republic of Austria under point 2(h) of Part IX of Annex XV to the Act of Accession was to authorise the Republic of Austria to maintain that tax after its accession to the Union.

26In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Taking into account the primary law provision of Paragraph 151(1) in conjunction with Annex XV, Part IX, No 2, letter h, first subparagraph, second indent, of the Act [of Accession], must consideration such as the programme fee of [the ORF], which the public service broadcaster sets itself in order to finance its operation, be regarded as consideration within the meaning of Article 2 in conjunction with Article 378(1) of [the VAT Directive]?

If Question 1 is answered in the affirmative, must the ORF programme fee referred to therein also be regarded as consideration within the meaning of [the VAT Directive] in so far as persons are obliged to pay it who, although they operate a broadcast receiver in a building which is supplied by the ORF with its terrestrial programmes, cannot receive those ORF programmes because they do not have the necessary receiver module?’

Consideration of the questions referred

27As a preliminary point, it should be borne in mind that, in the procedure laid down by Article 267 TFEU providing for cooperation between referring courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and will enable the referring court to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C‑27/22, EU:C:2023:663, paragraph 79 and the case-law cited).

28In the present case, the dispute in the main proceedings stems from an application addressed to the GIS seeking reimbursement of VAT on the ORF programme fee allegedly paid in breach of EU law and, more specifically, of the provisions of the VAT Directive. It is apparent, moreover, from the request for a preliminary ruling that, whereas, in the wording of the questions referred, the referring court focuses specifically on the concept of the supply of services effected ‘for consideration’, a concept which is expressly provided for in Article 2(1)(c) of the VAT Directive and not in Article 378(1) thereof, the referring court ultimately seeks, more generally, an answer from the Court on the compatibility of the VAT thus paid with the provisions of that directive, in particular in the light of the derogation provided for in Article 378(1), allowing the Republic of Austria to continue to tax certain transactions.

29In those circumstances, it must be held that, by its questions, which should be examined together, the referring court asks, in essence, whether Article 2(1)(c) and Article 378(1) of the VAT Directive, read in conjunction with Article 151(1) and the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession, must be interpreted as precluding the Republic of Austria from imposing VAT on a public broadcasting activity, financed by a compulsory statutory fee and paid by any person operating a broadcast receiver in a building within the terrestrial broadcasting area of the public broadcasting body concerned.

30At the outset, it must be recalled that the VAT Directive establishes a common system of VAT based on, inter alia, a uniform definition of taxable transactions (judgment of 13 June 2018, Gmina Wrocław, C‑665/16, EU:C:2018:431, paragraph 30 and the case-law cited).

31Accordingly, under Article 2(1)(c) of the VAT Directive, which appears under Title I of that directive, entitled ‘Subject matter and scope’, the supply of services for consideration within the territory of a Member State by a taxable person acting as such are to be subject to VAT.

32In that regard, it is settled case-law that taxable transactions presuppose the existence of a transaction between the parties in which a price or consideration is stipulated. Thus, where a person’s activity consists exclusively in providing services for no direct consideration, there is no basis of assessment and the services are therefore not subject to VAT (judgment of 22 June 2016, Český rozhlas, C‑11/15, EU:C:2016:470, paragraph 20 and the case-law cited).

33It follows therefrom that a supply of services is effected ‘for consideration’ within the meaning of Article 2(1)(c) of the VAT Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. In that context, the Court has repeatedly held that the concept of ‘supply of services for consideration’, within the meaning of Article 2(1)(c), presupposes the existence of a direct link between the service supplied and the consideration received (see, to that effect, judgment of 22 June 2016, Český rozhlas, C‑11/15, EU:C:2016:470, paragraphs 21 and 22 and the case-law cited).

34Where an activity is classified as a transaction effected ‘for consideration’ within the meaning of that provision, it falls, on that basis, within the scope of the VAT Directive. By contrast, an activity which is not classified as such does not fall within the scope of that directive (see, to that effect, judgment of 22 June 2016, Český rozhlas, C‑11/15, EU:C:2016:470, paragraphs 34 and 36).

35Although Article 132(1)(q) of the VAT Directive provides for the exemption of ‘activities, other than those of a commercial nature, carried out by public radio and television bodies’, that provision is nevertheless applicable only on the condition that those activities should be ‘subject to VAT’ within the meaning of Article 2(1) of the VAT Directive and is not to be interpreted as extending the scope of application of that directive, as defined in Article 2 (see, to that effect, judgment of 22 June 2016, Český rozhlas, C‑11/15, EU:C:2016:470, paragraph 32).

36However, Article 378(1) of the VAT Directive, which reflects the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession, allows the Republic of Austria to derogate from those provisions by giving that Member State the option to continue to tax the transactions listed in point 2 of Part A of Annex X to that directive, which refers to the activities, other than those of a commercial nature, carried out by public radio and television bodies.

37As the Court has already held, the retention of that derogation reflects the gradual and still partial harmonisation of national VAT legislation. The harmonisation envisaged has not yet been achieved in so far as derogating provisions, such as Article 378 of the VAT Directive, authorise the Member States to retain certain provisions of their national legislation which would, without those authorisations, be incompatible with that directive (see, by analogy, judgment of 13 March 2014, Jetair and BTWE Travel4you, C‑599/12, EU:C:2014:144, paragraph 48 and the case-law cited).

38That said, the option provided for in Article 378(1) of the VAT Directive is granted by way of derogation, pursuant to Article 151(1) and of the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession, subject to compliance with the conditions specific to those provisions. It is therefore appropriate to examine how far that derogation extends in order to determine whether the tax at issue in the main proceedings falls within its scope.

39In interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part.

40Furthermore, it is settled case-law that, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 41 and the case-law cited).

41In the present case, as regards the wording of Article 378(1) of the VAT Directive, as is apparent from paragraph 36 above, that provision, read in conjunction with point 2 of Part A of Annex X to that directive, authorises the Republic of Austria to ‘continue to tax’ the activities, other than those of a commercial nature, carried out by public radio and television bodies.

42Therefore, according to the wording of that provision, the Republic of Austria is authorised only to maintain an existing system of taxation of the abovementioned activities and not to introduce new taxation of those activities (see, by analogy, judgment of 2 May 2019, Grupa Lotos, C‑225/18, EU:C:2019:349, paragraph 31 and the case-law cited).

43In so far as that provision refers specifically to the taxation of those activities by the Republic of Austria on the date of its accession to the European Union, the arrangements for that taxation since that date must have remained essentially unchanged in order for that taxation to continue to be covered by the derogation provided for in Article 378(1) of the VAT Directive.

44In that regard, it is apparent from the information submitted to the Court that the national legislation providing for the programme fee was amended in 2011, with the result that, from now on, that fee must be paid provided that the broadcast user is supplied with ORF programmes by terrestrial means at his or her location, even if that person has not made the necessary minor adjustments to his or her equipment in order to be able to receive ORF digital television programmes.

45It is apparent from the information provided by the referring court that that legislative amendment merely took account of technological innovations which had occurred in the meantime, without altering the event giving rise to the obligation to pay the programme fee in relation to what it was on the date of the Republic of Austria’s accession to the European Union.

46As regards the objective pursued by Article 378(1) of the VAT Directive, as is apparent from Annex XII to that directive, that provision is intended to implement the derogation granted to the Republic of Austria under Article 151(1) of the Act of Accession, read in conjunction with the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to that act. However, it is apparent from the documentation relating to the negotiations prior to the accession of the Republic of Austria to the European Union, relied on by GIS, ORF, the Republic of Austria and the European Commission, that the Republic of Austria had applied for a derogation allowing it to continue to impose VAT on the activities, other than those of a commercial nature, carried out by public radio and television bodies and that the Member States of the Union approved that request.

47The factors mentioned in paragraphs 41 to 46 of the present judgment lead to Article 378(1) of the VAT Directive, read in conjunction with point 2 of Part A of Annex X to that directive, being interpreted as meaning that that provision allows the Republic of Austria to continue to subject the programme fee to VAT.

48Such an interpretation is, moreover, the only one capable of retaining the effectiveness of that provision, in accordance with the case-law cited in paragraph 40 of the present judgment.

49It is apparent from the order for reference that, on the date of its accession to the European Union, the Republic of Austria imposed VAT on the activities, other than those of a commercial nature, carried out by the public radio and television body by levying that tax on the programme fee. Thus, in so far as Article 378(1) of the VAT Directive authorises the Republic of Austria only to ‘continue to tax’ such activities and not to introduce new taxation, to interpret that provision as not authorising the levying of VAT on the programme fee would render that provision meaningless.

50The judgment of 22 June 2016, Český rozhlas (C‑11/15, EU:C:2016:470, paragraph 32), in which the Court held that Article 13(A)(1)(q) of the Sixth Directive, which is drafted in identical terms to Article 132(1)(q) of the VAT Directive, provides for the exemption of ‘the activities, other than those of a commercial nature, carried out by public radio and television bodies’, cannot lead to a different assessment unless those activities are ‘subject to VAT’, in accordance with Article 2 of the Sixth Directive, which corresponds to Article 2 of the VAT Directive and, therefore, Article 13(A)(1)(q) of the Sixth Directive cannot be interpreted in such a way as to extend the scope of the Sixth Directive.

51It is sufficient to point out, in that regard, that, in the case which gave rise to the judgment of 22 June 2016, Český rozhlas (C‑11/15, EU:C:2016:470), the Court did not have to interpret a derogating provision such as, in the present case, Article 378(1) of the VAT Directive. It is in the nature of such a provision to introduce exceptions to the scope of the rules of which it forms part. The taxation permitted by that provision is not harmonised taxation which forms an integral part of the VAT system as arranged by the VAT Directive. On the contrary, the option provided for in the VAT directive allows the Republic of Austria to maintain its legislation on the taxation of the services concerned, without the differences which may result between it and other Member States being contrary to EU law (see, by analogy, judgments of 7 December 2006, Eurodental, C‑240/05, EU:C:2006:763, paragraph 52 and the case-law cited, and of 13 March 2014, Jetair and BTWE Travel4you, C‑599/12, EU:C:2014:144, paragraphs 46 and 50).

52In the light of all the foregoing considerations, the answer to the questions referred is that Article 2(1)(c) and Article 378(1) of the VAT Directive, read in conjunction with Article 151(1) and the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession, must be interpreted as not precluding the Republic of Austria from imposing VAT on a public broadcasting activity, financed by a compulsory statutory fee and paid by any person operating a broadcast receiver in a building within the terrestrial broadcasting area of the public broadcasting body concerned, irrespective of whether the public broadcasting activity concerned is covered by the concept of a ‘supply of services for consideration’ within the meaning of Article 2(1)(c) of the VAT Directive.

Costs

53Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 2(1)(c) and Article 378(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 151(1) and the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded

must be interpreted as not precluding the Republic of Austria from imposing value added tax on a public broadcasting activity, financed by a compulsory statutory fee and paid by any person operating a broadcast receiver in a building within the terrestrial broadcasting area of the public broadcasting body concerned, irrespective of whether the public broadcasting activity concerned is covered by the concept of a ‘supply of services for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112.

Signatures

[Signatures]

( *1 ) Language of the case: German.

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 25 May 2023 ¹

(Reference for a preliminary ruling – Common system of value added tax – Directive 2006/112/EC – Article 2(1)(c) – Supply of services for consideration – Concept – Activity of public radio and television bodies funded by a compulsory levy on persons owning a radio and television receiver and located within the terrestrial broadcasting zone – Article 378(1) and point 2 of Part A of Annex X – Act concerning the conditions for the accession of Austria – Article 151(1) and point 2(h) of Part IX of Annex XV – Derogation – Scope)

Background

1In its judgment of 22 June 2016, Český rozhlas (C‑11/15, ‘the judgment in Český rozhlas’, EU:C:2016:470), the Court held that the activities of public radio broadcasters funded by a compulsory charge levied by law on persons owning radio receivers do not constitute a supply of services for consideration and do not fall within the scope of the common system of value added tax (VAT).

2Following that ruling, in certain Member States where such charges were subject to VAT, those liable to pay them claimed reimbursement of that tax on the basis that it had been levied contrary to EU law. In Austria, this has led to the filing of a class action of which the main proceedings in the present case form part. Similar proceedings are also ongoing in Denmark. ²

3In this context, the interested parties, as well as the European Commission, state that EU law on VAT provides for a derogation for certain Member States, allowing them to tax the activities of public service broadcasters. The question therefore arises as to whether this derogation alters the conclusions of the judgment in Český rozhlas.

Legal context

European Union law

4Under Article 151 of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, of 26 July 1994 (‘the 1994 Act of Accession’), ³ read in conjunction with point 2(h) of Part IX of Annex XV thereto, ⁴ by way of derogation from the provisions of EU law on VAT, Austria may tax, inter alia, the activities of public radio and television bodies. ⁵ This taxation cannot affect the Union’s own resources, the basis of which should be reconstituted in accordance with Regulation (EEC, Euratom) No 1553/89. ⁶

5In accordance with Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax: ⁷

‘The following transactions shall be subject to VAT:

…

the supply of services for consideration within the territory of a Member State by a taxable person acting as such …’

6Article 132(1)(q) of that directive states:

‘Member States shall exempt the following transactions:

…

the activities, other than those of a commercial nature, carried out by public radio and television bodies.’

7Under Article 378(1) of Directive 2006/112:

‘Austria may continue to tax the transactions listed in point (2) of Annex X, Part A.

8Annex X to that directive mentions, in point (2) of Part A, ‘the activities of public radio and television bodies other than those of a commercial nature’.

Austrian law

9Paragraph 2(1) of the Bundesgesetz betreffend die Einhebung von Rundfunkgebühren (Federal law on the levying of broadcasting fees ⁸ (‘the RGG’) requires any person using a radio or television receiver indoors to pay a ‘radio and television fee’. The possession of such a receiver is deemed to be equivalent to its use. According to Paragraph 4(1) of the RGG, Gebühren Info Service GmbH (‘GIS’) is authorised to collect the fee and any related taxes.

10The Bundesgesetz über den Österreichischen Rundfunk (Federal law on the Österreichischer Rundfunk ⁹ (‘the ORF-G’) establishes in Paragraph 1(1) the public service broadcaster in the form of a public law foundation called Österreichischer Rundfunk (‘the ORF’).

11Paragraph 31 of the ORF-G establishes a ‘programme fee’, the amount of which is set by the board of that foundation. Any owner of a radio or television receiver (analogue or digital) located in a terrestrial broadcasting zone for ORF programmes is liable for the programme fee. The programme fee is collected simultaneously with and on the same basis as the broadcasting fee.

12Lastly, Paragraph 10 of the Bundesgesetz über die Besteuerung der Umsätze (Federal law on VAT) ¹⁰ provides for a reduced tax rate for, in particular, the broadcasting services subject to payment of the broadcasting fee.

Facts, procedure and the questions referred for a preliminary ruling

13BM, the applicant in the main proceedings, is a recipient of radio and television programmes subject to the payment of a programme fee. Between 1 October 2013 and 31 October 2018, she paid, inter alia, the amount of EUR 100.57 in VAT on the programme fee payable by her. On 23 October 2018, she applied to GIS for a refund of that sum on the basis that it had been levied contrary to EU law. In the light, in particular, of the judgment in Český rozhlas, the applicant submits that the activities of public radio and television broadcasters financed by a fee such as the Austrian programme fee are not subject to VAT.

14GIS refused to refund that tax, which BM challenged before the Bundesverwaltungsgericht (Federal Administrative Court, Austria). However, that court dismissed her claim, holding that the interpretation resulting from that judgment was not applicable to the Austrian programme fee. BM brought an appeal on a point of law against the judgment of that court before the referring court.

15In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Taking into account the primary law provision of Article 151(1) in conjunction with [point 2(h), first subparagraph, second indent, of Part IX of Annex XV to] [the 1994 Act of Accession], must consideration such as the programme fee of the [ORF], which the public service broadcaster sets itself in order to finance its operation, be regarded as consideration within the meaning of Article 2 in conjunction with Article 378(1) of [Directive 2006/112]?

If Question 1 is answered in the affirmative, must the ORF programme fee referred to therein also be regarded as consideration within the meaning of [Directive 2006/112] in so far as persons are obliged to pay it who, although they operate a broadcast receiver in a building which is supplied by the ORF with its terrestrial programmes, cannot receive those ORF programmes because they do not have the necessary receiver module?’

16The reference for a preliminary ruling was received by the Court on 11 April 2022. Written observations were submitted by the parties to the main proceedings, the ORF, the Austrian and Danish Governments and the Commission. Those parties, as well as the French Government, were represented at the hearing on 15 February 2023.

Analysis

17The applicant in the main proceedings seeks a refund of the VAT that was added to the programme fee that she had paid. She submits that, in the light of the judgment in Český rozhlas, the VAT had been charged contrary to EU law. Through the questions referred for a preliminary ruling in the present case, which I propose to deal with together, the referring court thus seeks, in essence, to ascertain whether Article 2(1)(c) of Directive 2006/112, in conjunction with Article 378(1) of that directive and Article 151(1) of the 1994 Act of Accession and point 2(h) of Part IX of Annex XV thereto, should be interpreted as meaning that the Republic of Austria is entitled to levy VAT on the programme fee within the meaning of Paragraph 31 of the ORF-G.

18The answer to that question requires, first, an analysis of the nature of the programme fee in the light of Article 2(1)(c) of Directive 2006/112, followed by consideration of the potential impact on that legal issue of Article 378(1) of that directive and Article 151(1) of the 1994 Act of Accession, which forms the basis thereof, and the relevant point of Annex XV thereto.

The nature of the programme fee

19Both the referring court in its order and GIS, the ORF and the Austrian Government in their submissions argue that the Austrian programme fee differs fundamentally from the fee at issue in the case which gave rise to the judgment in Český rozhlas, and that it can therefore be regarded as consideration for the use of the ORF’s services, with the result that those services should be regarded as being supplied for consideration within the meaning of Article 2(1)(c) of Directive 2006/112.

20It is submitted that the differences arise, first, from the fact that the obligation to pay the programme fee is linked not so much to the mere possession of a receiver, but to the actual possibility of receiving the broadcasts transmitted by the ORF. That possibility arises from the possession of a receiver capable of receiving those broadcasts (by terrestrial, satellite or cable) and located in the zone in which they are broadcast. ¹¹ Acquiring such a receiver and adapting it to receive ORF broadcasts would be an expression of the recipient’s wish to use the broadcaster’s services. Second, unlike the fee at issue in the case that led to the judgment in Český rozhlas, the amount of the programme fee is set not by the legislature, but by the ORF. Third and finally, at the time the programme fee was implemented in 1966, the Austrian legislature established a legal fiction in the form of a civil law relationship between the ORF and the (potential) recipients of its broadcasts. According to the referring court, in spite of a change in the law since then, this legal fiction is still recognised in the case-law of the Austrian courts.

21In my view, however, the above differences between the Austrian programme fee and the fee at issue in the case which gave rise to the judgment in Český rozhlas do not justify a different assessment of the former from the point of view of Directive 2006/112.

22As in the case referred to above, the present case concerns two services that are legally independent of each other: on the one hand, the ORF, in performing the task entrusted to it by the legislature, broadcasts radio and television programmes for free reception, and on the other hand, potential recipients of those programmes equipped with the relevant receivers are obliged by law to pay the programme fee. It is clear that those receivers can also be used to receive programmes from other broadcasters and for purposes wholly unrelated to enjoying radio and television programmes, and therefore their acquisition and adaptation to receive broadcasts can in no way be regarded as an expression of the wish to use the ORF’s services.

23By analogy with the case that led to the judgment in Český rozhlas, in the present case there is no legal relationship between the ORF and the persons liable to pay the programme fee under which there is an exchange of reciprocal performance. ¹² The fact that the obligation to pay the programme fee is based not on the formal condition of owning a receiver, but on the actual ability to receive the broadcasts, does not fundamentally change that situation.

24The situation in the present case is therefore different from that considered by the Court in the case which led to the judgment in Kennemer Golf, ¹³ referred to in the order of the referring court. In the latter case, the recipient of the service voluntarily entered into a contract with the service provider which allowed him to use the facilities of a sports club for a limited period of time in return for a flat-rate payment. Thus, although the question whether he actually used the facilities was irrelevant to the obligation to pay the consideration, the very possibility of using the facilities was strictly conditional on the payment of that consideration and the parties entered into that legal relationship entirely at their will.

25The same is true with regard to the judgment in Air France-KLM and Hop!-Brit Air ¹⁴ cited by the ORF. The cases leading to that judgment concerned airline tickets which remained unused by their purchasers. The fact that the purchasers did not ultimately make use of the transport services does not alter the fact that there was payment for a service which, on the part of the service provider, was performed (the flight took place). There was therefore a supply of services for consideration within the meaning of Article 2(1)(c) of Directive 2006/112, based on a legal relationship freely entered into by the parties.

26Furthermore, the fact that it is the ORF, rather than the legislature directly, that sets the programme fee is irrelevant to assessing the situation in the present case. The ORF sets the amount of the fee on the basis of the authority conferred by law. The fee thus retains the nature of a public levy established by law, and the legislature has merely entrusted the determination of its level with the entity that is funded by the proceeds of the levy.

27I also agree with the Commission’s view that the concept of ‘supply of services for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112 is an autonomous concept of EU law and the fact that Austrian law recognises the existence of a legal fiction whereby a legal relationship of a contractual nature exists between the ORF and the persons liable to pay the fee is therefore irrelevant for the classification of the programme fee in terms of that provision. Indeed, according to the Court’s established case-law, whether a specific transaction is subject to or exempt from VAT does not depend on how that transaction is classified under national law. ¹⁵ The programme fee must therefore be classified solely on the basis of EU law and the case-law of the Court – in this case primarily the judgment in Český rozhlas.

28In view of the above, I am of the opinion that the programme fee, like the fee at issue in the case which led to the judgment in Český rozhlas, does not constitute consideration for the broadcasting services provided by the ORF. It remains to be examined whether that conclusion is altered by Article 378(1) of Directive 2006/112 and Article 151(1) of the 1994 Act of Accession, read in conjunction with point 2(h) of Part IX of Annex XV thereto.

The significance of Article 378(1) of Directive 2006/112 and Article 151 of the 1994 Act of Accession

29Article 378(1) of Directive 2006/112 implements, at the level of secondary legislation, Article 151 of the 1994 Act of Accession, read in conjunction with point 2(h) of Part IX of Annex XV thereto, which allows the Republic of Austria to charge VAT on the services of public radio and television broadcasters, that is to say, in practice, the ORF. However, it appears that the wording of those provisions deviates from the objectives that both the Union legislature and the Member States intended for them to achieve when negotiating the 1994 Act of Accession.

Wording of Article 378(1) of Directive 2006/112 and point 2(h) of Part IX of Annex XV to the 1994 Act of Accession

30Article 151(1) of the 1994 Act of Accession is a framework provision according to which the acts listed in Annex XV thereto apply to the new Member States (including the Republic of Austria) subject to the conditions laid down in that Annex. The actual normative content of the provisions of interest to us should therefore be sought in that annex.

31According to point 2(h) of Part IX of Annex XV to the 1994 Act of Accession, ‘for the purposes of applying’ Article 28(3)(a) of Sixth Directive 77/388, the Republic of Austria may tax the transactions listed in point 7 of Annex E to that Directive. Article 28 of Sixth Directive 77/388 was contained in Title XVI of that directive, headed ‘Transitional provisions’. By virtue of paragraph 3(a) of that article, Member States were able, by way of derogation from the exemption laid down in Articles 13 and 15 of that directive, to maintain the taxation of the transactions listed in Annex E to the directive. Point 7 of that annex lists the activities of public radio and television broadcasters, exempted in principle under Part A of Article 13(1)(q) of Sixth Directive 77/388. In other words, point 2(h) of Part IX of Annex XV to the 1994 Act of Accession granted the Republic of Austria the derogation contained in Article 28(3)(a) of Sixth Directive 77/388, in conjunction with point 7 of Annex E thereto, according to which Member States in which the activities of public radio and television broadcasters had hitherto been subject to VAT could continue to charge that VAT despite the exemption of those activities under the general provisions of the directive.

32Under Article 28(3) and (4) of Sixth Directive 77/388, the derogations contained in Article 28(3) were to apply for a transitional period. That period was to end when the derogations were abolished by a Council decision. In fact, however, the transitional period has not yet ended and the derogations still in force have been transferred to Directive 2006/112 as ‘derogations applying until the adoption of definitive arrangements’. ¹⁶ The derogation available to the Republic of Austria under Article 151(1) of the 1994 Act of Accession in conjunction with point 2(h) of Part IX of Annex XV thereto, is contained in Article 378(1) of Directive 2006/112, in conjunction with point 2 of Part A of Annex X to that directive, worded analogously to point 7 of Annex E to Sixth Directive 77/388.

33Neither Article 378(1) of Directive 2006/112 nor Part A of Annex X thereto expressly state that the derogations established therein relate to the exemptions provided for in Article 132 of that directive. However, this seems obvious to me. This is indicated first by the legislative background of Article 378(1) of Directive 2006/112 and the wording of its predecessor, Article 28(3)(a) of Sixth Directive 77/388. ¹⁷ Second, the wording of point 2 of Part A of Annex X to Directive 2006/112 corresponds literally to the wording of the exemption contained in Article 132(1)(q) of that directive.

34It should therefore be concluded that Article 378(1) of Directive 2006/112, in conjunction with point 2 of Part A of Annex X to that directive, establishes a derogation from the exemption contained in Article 132(1)(q) thereof in favour of the Republic of Austria. However, the exemptions provided for in that article can logically only apply to transactions which could be taxed, otherwise their exemption would not be needed. The Court has explicitly confirmed this in the judgment in Český rozhlas. ¹⁸

35I therefore do not share the view of GIS, the Austrian, Danish and French Governments and the Commission that Article 378(1) of Directive 2006/112, in conjunction with point 2 of Part A of Annex X thereto permits taxation outside the scope of that directive, as results, in particular, from Article 2(1)(c) thereof. ¹⁹ A derogation from a provision falling within the scope of a directive (in this case Article 132(1)(q) of Directive 2006/112) cannot, logically, itself fall outside that scope.

36Notwithstanding the scope of application of Article 378(1) of Directive 2006/112 discussed above, its content, taken literally, cannot serve as a basis for the Republic of Austria to charge VAT on the programme fee.

37However, it does allow the Republic of Austria to subject the activities of public radio and television broadcasters to VAT. But, as the Court stated in the judgment in Český rozhlas, which, as discussed in points 20 to 29 of this Opinion, is applicable to the present case, the activities of such broadcasters, to the extent that they are financed by the proceeds of a levy such as the Austrian programme fee, do not constitute supplies of services for consideration and, as such, cannot be subject to that tax.

38VAT is in fact a consumption tax the basis of assessment of which is, in accordance with Article 73 of Directive 2006/112, the price of goods or services, that is, the amount received by the taxable person in payment for goods or services. In the case of a service provided free of charge, there is no taxable amount on which VAT can be charged and, consequently, no possibility to apply it.

39In view of the above, I am of the opinion that neither the wording of Article 378(1) of Directive 2006/112 and point 2 of Part A of Annex X thereto, nor, consequently, the wording of Article 151 of the 1994 Act of Accession in conjunction with point 2(h) of Part IX of Annex XV thereto, alters the conclusions reached in points 20 to 29 of this Opinion.

Purpose of the arrangements contained in Article 378(1) of Directive 2006/112

40A literal interpretation of the provisions of Directive 2006/112 would therefore lead to the conclusion that treating the activities of a public service broadcaster funded by the proceeds of a programme fee as taxable is incompatible with those provisions. However, as appears to be the case, and as both the referring court in its order and, in particular, the Danish Government in its observations point out, that was not the intention of the Member States when negotiating point 2(h) of Part IX of Annex XV to the 1994 Act of Accession, nor of the EU legislature with regard to Article 378(1) of Directive 2006/112 in conjunction with point 2 of Part A of Annex X to that directive, and before that Article 28(3) of Sixth Directive 77/388 and point 7 of Annex E thereto.

41The Danish Government explains that the wording of those provisions is the manifestation of a compromise between the Member States which, during the legislative work on Sixth Directive 77/388, were unable to agree on the taxation of public service broadcasters funded by the proceeds of a levy such as the Austrian programme fee. The compromise was that those services were exempted in principle, while the relevant Member States were given the option to derogate from that exemption. That derogation was subsequently extended to certain new Member States, including the Republic of Austria, by virtue of point 2(h) of Part IX of Annex XV to the 1994 Act of Accession, now implemented into secondary legislation in Article 378(1) of Directive 2006/112 in conjunction with point 2 of Part A of Annex X to that directive.

42This solution may have been justified in 1977, when Sixth Directive 77/388 was being drawn up. At the time, in most Member States there was a monopoly or quasi-monopoly of public service broadcasters, in particular television broadcasters, and the only practical use for domestic radio and television sets was to receive terrestrial broadcasts. It could therefore be considered in principle that the purchase of such a receiver was tantamount to using the services of public service broadcasters, and a compulsory fee for owning one constituted sui generis consideration for those services. It should also be borne in mind that that solution was introduced as a temporary measure, initially for a period of five years.

43The justification for that solution had already greatly diminished by the time the 1994 Act of Accession was being negotiated, following the liberalisation of the broadcasting market in Europe supported by the provisions of Directive 89/552/EEC, ²⁰ and the development of cable and satellite television. However, it is wholly unjustified at the present time when, on the one hand, owning a radio or television set, even if it is capable of receiving broadcasts, is in no way tantamount to using the services of public service broadcasters (or radio or television broadcasters in general) and, on the other hand, such broadcasts can also be received without the aid of such a receiver, even outside the Member State of the broadcaster, in particular via the Internet. The fee for owning a receiver thus constitutes a kind of public levy, which, although it serves to finance the activities of public broadcasters, is completely detached from the actual use of their services. Hence the decision of the Court in the judgment in Český rozhlas.

44It should be noted here that the origins of the interpretation of Article 2(1)(c) of Directive 2006/112 adopted by the Court in that judgment go back a long way and should come as no surprise. Already in the judgments in Coöperatieve Aardappelenbewaarplaats ²¹ and Hong-Kong Trade Development Council, ²² handed down while Directive 67/228/EEC ²³ was still in force but shortly after Sixth Directive 77/388 came into effect, the Court ruled that a supply of services can be taxed if the service is provided for consideration, that is to say, there is a direct link between the supply and the consideration actually received for it. Otherwise, there is no taxable amount and the relationship between the parties does not have the character of a contract which is the subject of tax harmonisation. That case-law was then systematically consolidated and developed, ²⁴ with the decision in the judgment in Český rozhlas as its logical consequence.

45Nevertheless, I believe that an interpretation of Article 378(1) of Directive 2006/112 should take into consideration its intended purpose, namely the implementation of point 2(h) of Part IX of Annex XV to the 1994 Act of Accession. Otherwise, Article 378(1) of that directive would become irrelevant, as there would be no services provided by the public service broadcaster in Austria that could be taxed under it. Indeed, that provision has the character of a standstill clause, and the only type of activity to which that clause may apply is that of the ORF that is funded by the proceeds of the programme fee, which was regarded as taxable prior to that country’s accession to the European Union. This would give rise to an internal contradiction between Article 2(1)(c) and Article 378(1) of Directive 2006/112. In my view the existence of such a contradiction undermines the conclusions that can be drawn from a literal interpretation and justifies, in this case, recourse to a systematic and teleological interpretation of the provisions of that directive.

46By agreeing on the derogation contained in point 2(h) of Part IX of Annex XV to the 1994 Act of Accession, the Member States intended to allow the Republic of Austria to maintain its national legislation pursuant to which the activities of a public service broadcaster financed by the proceeds of the programme fee were deemed to be subject to VAT, with the consequence that VAT would be added to the fee, and the public service broadcaster was entitled to deduct the VAT it paid on the goods and services used for the purposes of those activities.

47As is apparent from both the order for reference and the ORF's observations, the primary motive for the Republic of Austria maintaining, after its accession, the existing tax regime for the activities of that public service broadcaster and the real purpose of the arrangement contained in point 2(h) of Part IX of Annex XV to the 1994 Act of Accession was the preservation of that right of deduction.

48In the light of the foregoing, Article 378(1) of Directive 2006/112 must, in my view, be interpreted as allowing the Republic of Austria to treat public service broadcasting as a taxable activity, with the result that it is entitled to deduct input VAT, the resulting loss of tax revenue being offset by an additional levy added to the programme fee, whose proceeds go not to the ORF budget but to the State budget.

49That additional charge does not constitute VAT within the meaning of Directive 2006/112, as its basis is not payment of a service effected for consideration. Rather, it is a direct public levy which is completely outside the scope of the common system of VAT. It cannot therefore be regarded as being levied contrary to Directive 2006/112 ²⁵ or, more broadly, EU law. Admittedly, it may be considered awkward that such an additional levy is called ‘VAT’ and presented as such to those liable to pay it. However, as this does not jeopardise the effectiveness of the common system of VAT, it does not seem to me to constitute a problem that would justify declaring that levy unlawful, in any case under EU law.

50This interpretation does not cause undue harm to those liable to pay the programme fee, since, on the basis of the statutory authorisation, the ORF determines the amount of the fee in its entirety, including that additional levy. The latter therefore does not constitute an additional burden for programme fee payers; only the destination of the amount collected is different.

51In light of that interpretation, the question of the scope ratione personae of the obligation to pay the programme fee raised in the second question is also irrelevant, since that fee is beyond the scope of EU law.

52It should further be noted that the taxation maintained under the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession cannot have an impact on the Union’s own resources. However, as the ORF indicates in its observations, the VAT on the programme fee is charged at a reduced rate of 10%, in return for which the ORF is fully entitled to deduct input VAT. On the other hand, the goods and services which the ORF purchases in carrying on its activities are for the most part taxed at the standard rate of VAT (20%), which entails a significant excess of tax paid and a right to the reimbursement of that amount from the State budget, thus depleting the Union’s own resources. This raises the question whether that is compatible with the second indent of the first subparagraph of point 2(h) of Part IX of Annex XV to the Act of Accession. However, this is a matter of the proper implementation by the Republic of Austria of its obligations relating to the Union’s own resources, which does not affect the compatibility with EU law of the additional levy on the programme fee.

Conclusions

53In view of all of the above, I propose to answer the questions referred to the Court by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:

Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 378(1) of that directive and Article 151(1) of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, of 26 July 1994, and point 2(h) of Part IX of Annex XV thereto,

must be interpreted as meaning that the Republic of Austria is not precluded from levying a charge additional to the programme fee within the meaning of Paragraph 31 of the Bundesgesetz über den Österreichischen Rundfunk (Federal Law on the Österreichischer Rundfunk) in order to compensate for the loss of budgetary revenue from value added tax resulting from the right of a public service broadcaster to deduct tax paid on goods and services acquired by it for the purposes of its activities, which are financed by the proceeds of that programme fee.

¹ Original language: Polish.

² In those proceedings, the Court received a request for a preliminary ruling similar to the present request (Case C‑573/22, Foreningen C and Others, pending).

³ OJ 1994 C 241, p. 21.

⁴ This latter provision can be found in OJ 1994 C 241, p. 336.

⁵ This provision brought the Republic of Austria within the scope of the derogation initially provided for in Article 28(3) 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), for a transitional period, which was to be terminated with a decision of the Council; such a decision, however, has not been issued.

⁶ Council Regulation of 29 May 1989 on the definitive uniform arrangements for the collection of own resources accruing from value added tax (OJ 1989 L 155, p. 9).

⁷ OJ 2006 L 347, p. 1.

⁸ BGBl. I 159/1999, as amended.

⁹ BGBl. 379/1984, as amended.

¹⁰ BGBl. 663/1994, as amended.

¹¹ According to the information provided by BM at the hearing, 95% of households in Austria are in this situation.

¹² See the judgment in Český rozhlas, paragraphs 20 to 28.

¹³ Judgment of 21 March 2002 (C‑174/00, EU:C:2002:200).

¹⁴ Judgment of 23 December 2015 (C‑250/14 and C‑289/14, EU:C:2015:841).

¹⁵ See, most recently, the judgment of 16 October 2019, Winterhoff and Eisenbeis (C‑4/18 and C‑5/18, EU:C:2019:860, paragraph 44 and the case-law cited).

¹⁶ See Title XIII, Chapter 1 of Directive 2006/112.

¹⁷ It should be borne in mind in this regard that Directive 2006/112 is a recasting of Sixth Directive 77/388 and therefore does not, in principle, alter the normative content of its provisions (see recital 3 of Directive 2006/112).

¹⁸ Paragraph 32.

¹⁹ See, similarly, the judgment in Český rozhlas, paragraph 32 in fine.

²⁰ Council Directive of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23).

²¹ Judgment of 5 February 1981 (154/80, EU:C:1981:38, paragraphs 12 to 14).

²² Judgment of 1 April 1982 (89/81, EU:C:1982:121, paragraph 10).

²³ Second Council Directive of 11 April 1967 on the coordination of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ 1967, p. 1303).

²⁴ See the judgment in Český rozhlas, paragraphs 20 to 22 and the case-law cited.

²⁵ There is likewise no need to invoke Article 401 of Directive 2006/112 here, as that concerns the taxation of transactions falling within the scope of that directive, even if they are exempt transactions.