ECJ C-695/20 (Fenix International) – AG Opinion – Legality of Art. 9a of the Implementing Regulation

On September 15, 2022, the ECJ issued the AG opinion in the case C-695/20 (Fenix International).

Context: Reference for a preliminary ruling – Article 291(2) TFEU – Implementing power of the Council of the European Union – Directive 2006/112/EC – Common system of value added tax (VAT) – Articles 28 and 397 – Taxable person, acting in his or her own name but on behalf of another person, who takes part in a supply of services – Implementing Regulation (EU) No 282/2011 – Article 9a – Services supplied electronically via a telecommunications network, an interface or a portal – Presumptions relating to the identification of the supplier of services – Whether or not the taxable person can rebut those presumptions – Validity

Article in the EU VAT Directive

Article 9a of Council Implementing Regulation (EU) No 282/2011.

Article 9a

1.For the application of Article 28 of Directive 2006/112/EC, where electronically supplied services are supplied through a telecommunications network, an interface or a portal such as a marketplace for applications, a taxable person taking part in that supply shall be presumed to be acting in his own name but on behalf of the provider of those services unless that provider is explicitly indicated as the supplier by that taxable person and that is reflected in the contractual arrangements between the parties.

In order to regard the provider of electronically supplied services as being explicitly indicated as the supplier of those services by the taxable person, the following conditions shall be met:

(a)the invoice issued or made available by each taxable person taking part in the supply of the electronically supplied services must identify such services and the supplier thereof;

(b)the bill or receipt issued or made available to the customer must identify the electronically supplied services and the supplier thereof.

For the purposes of this paragraph, a taxable person who, with regard to a supply of electronically supplied services, authorises the charge to the customer or the delivery of the services, or sets the general terms and conditions of the supply, shall not be permitted to explicitly indicate another person as the supplier of those services.

2.Paragraph 1 shall also apply where telephone services provided through the internet, including voice over internet Protocol (VoIP), are supplied through a telecommunications network, an interface or a portal such as a marketplace for applications and are supplied under the same conditions as set out in that paragraph.

3.This Article shall not apply to a taxable person who only provides for processing of payments in respect of electronically supplied services or of telephone services provided through the internet, including voice over internet Protocol (VoIP), and who does not take part in the supply of those electronically supplied services or telephone services.

Facts

The Platform is offered to “Users” from around the world. These Users are divided into “Creators” and “Fans”. Creators have profiles and upload and post content such as photographs and videos to their respective profiles. They can also stream live video webcam and send private messages to Fans who subscribe to them. The Creator determines the monthly subscription fee, although Fenix sets the minimum amount both for subscriptions and for tips.
Fans can access uploaded content by making ad hoc payments or paying a monthly subscription in respect of each Creator whose content they wish to view and/or with whom they wish to interact. Fans can also pay tips or donations known as “Fundraising” for which no content is supplied in return.
Therefore, Creators charge and earn money from content and Fans pay money for content.
Fenix provides not only the Platform but also the facility whereby Fans make payments and Creators receive payment. Fenix is responsible for collecting and distributing the payments, utilising a third-party payment service provider. Fenix charges the Creator 20% for services by way of a deduction (“the Charge”) from the consideration paid by the Fan; if a Creator charges a notional £100 for a subscription, Fenix receives £100 from the Fan, retains £20 and pays the Creator £80.
Both payments from a Fan and payments to a Creator will appear on the relevant User’s bank statement as a payment made to or from Fenix.
At all material times, Fenix charged and accounted for VAT at a rate of 20% on the Charge.
Use of the Platform has at all material times been governed by Fenix’s Terms of Service (“T&Cs”). There are various versions of the T&Cs over the period covered by the assessment. There are also various versions of the Privacy Policy.
On 22 April 2020, HMRC sent Fenix assessments for VAT due for the periods from 07/17 to 01/20 in the sum of £8,222,566. On 15 July 2020, HMRC issued a further assessment for VAT due for the period 04/20 in the sum of £3,015,912.
HMRC’s view was, and is, that the legal basis for the assessments was that Fenix should be deemed to be acting in its own name by virtue of Article 9a.
On 27 July 2020, Fenix filed an appeal disputing the legal basis for the assessment and also the quantum.
The argument on the legal basis was that Article 9a is invalid and does not apply; further, or alternatively, Fenix falls outside of and/or rebuts the presumption in Article 9a. HMRC have not made any decision as to, as a matter of English law, the capacity in which Fenix acted in respect of the Platform (ie whether as agent or as principal). Their decision to assess Fenix to VAT was taken by reference to Article 9a alone. HMRC have not considered the application of Article 28 of the VAT Directive (“Article 28”) per se, without reference to Article 9a (including, specifically, the final paragraph of Article 9a(1)).

Questions

Is Article 9a of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011, inserted by Article 1(1)(c) of Council Implementing Regulation (EU) No 1042/2013 of 7 October 2013, invalid on the basis that it goes beyond the implementing power or duty on the Council established by Article 397 of Council Directive 2006/112/EC of 28 November 2006 insofar as it supplements and/or amends Article 28 of Directive 2006/112/EC?”

AG Opinion

Examination of the question referred for a preliminary ruling has revealed nothing capable of affecting the validity of Article 9a of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax, as inserted by Council Implementing Regulation (EU) No 1042/2013 of 7 October 2013 amending Implementing Regulation No 282/2011.

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