On May 25, 2023, the ECJ issued the AG Opinion in the case C-249/22 (Gebühren Info Service GmbH (GIS).
Context: Preliminary reference – the common value added tax system – Directive 2006/112/EC – Article 2, paragraph 1(c) — provision of services for remuneration — concept — public broadcasting service financed by a compulsory levy imposed on persons who own radio and television receivers and who are located in areas where terrestrial radio and TV programs are broadcast – article 378, subsection 1, and Annex X, Part A, No. 2) – the act relating to the conditions of Austria’s accession – Article 151, paragraph 1, and Annex XV, Part IX, No. 2), letter h) – exception – scope
Articles in the EU VAT Directive
Article 378(1) of the EU VAT Directive 2006/112/EC.
1. Austria may continue to tax the transactions listed in point (2) of Annex X, Part A.
BM, the plaintiff in the main proceedings, is a broadcaster who is obliged to pay the program fee. Between October 1, 2013 and October 31, 2018, she paid i.a. VAT of EUR 100.57 on the program fee to be paid. On October 23, 2018, she applied to the GIS for reimbursement of this amount, alleging that it had been collected in breach of Union law. In particular, in the light of the judgment in Český rozhlas, the activities of public radio and television broadcasters financed by a levy such as the Austrian program fee are not subject to VAT.
GIS refused to refund the VAT, whereupon BM lodged an appeal with the Federal Administrative Court. However, the court dismissed this appeal on the grounds that the interpretation resulting from this judgment was not applicable to the Austrian program fee. BM appealed against the decision of the Federal Administrative Court to the referring court.
Taking into account the primary law provision of Article 151(1) in conjunction with Annex XV, Part IX, No. 2, letter h, first subparagraph, second indent, of the Act concerning the conditions of accession and the adjustments to the Treaties on which the European Union is founded, 1 must consideration such as the programme fee of the Österreichischer Rundfunk (Austrian Broadcasting Corporation, ‘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 Council Directive 2006/112/EC 2 of 28 November 2006 on the common system of value added tax?
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?
Article 2, subsection 1, letter c) of Council Directive 2006/112/EC of 28 November 2006 on the common value added tax system, together with Article 378, paragraph 1, of this directive and Article 151, subsection 1, of the Act relating to the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adaptations of the Treaties forming the basis of the European Union of 26 July 1994 and Annex XV to this Act, Part IX, No. 2 ), letter h),
must be interpreted as meaning that
this provision does not prevent the Republic of Austria from levying a charge in addition to the program charge within the meaning of § 31 of the Bundesgesetz über den Österreichischen Rundfunk (Federal Act on Austrian Radio and Television) to compensate for the loss of budget revenue due to value added tax resulting from the right of a public broadcasting company to deduct the tax paid for goods and services acquired for the use of business financed by the proceeds of the program tax.’
Directive 2006/112/EC, along with the Act relating to the conditions of accession of Norway, Austria, Finland, and Sweden, do not prohibit Austria from imposing an additional charge to compensate for lost budget revenue due to VAT deductions by public broadcasting companies. This charge is in addition to the program charge under the Federal Act on Austrian Radio and Television.