The End of the Line for the Mobile Telecoms Operators and their VAT Refund Claims?

26 Jul 2007

Case C-369/04 Hutchison 3G UK Ltd & Others v CEC and Case C-284/04 T-Mobile & Others v Austria, Judgments of 26 June 2007

The ECJ has held that a Member State’s auction of 3G licences does not constitute an economic activity and so falls outside the scope of the Sixth Directive.  In finding that claims by successful bidders for recovery of allegedly-paid VAT have failed at the first hurdle, the ECJ declined to offer any observations on the other questions referred.  Issues such as when treatment of a public authority as a non-taxable person will lead to “significant distortions of competition” therefore remain shrouded in uncertainty.  There is, however, an interesting gleam of light in the short judgment. In departing from the Opinion of Advocate General Kokott, the ECJ has indicated that the door is open for the crossfertilisation of certain concepts in VAT and competition law.