Opinion of the Advocate General — ECLI:EU:T:2025:1080
Date: 2025-12-03
Language of the case: Romanian

Translation T-643/24 - 1 
Case T-643/24 
Request for a preliminary ruling 
Date lodged: 
22 November 2024 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
13 September 2024 
Applicant at first instance and appellant on appeal: 
Asociația Centrul Român pentru Administrarea Drepturilor 
Artiștilor Interpreți (CREDIDAM) 
Defendant at first instance and respondent on appeal: 
Cristian General Serv SRL 
  
R O M Â N I A 
CURTEA DE APEL BUCUREȘTI 
SECȚIA A IV-A CIVILĂ 
(COURT OF APPEAL, BUCHAREST, ROMANIA – FOURTH CIVIL 
DIVISION) 
[…] 
ORDER 
Public hearing of 13 September 2024 
[…] 
This case concerns the need to make a reference to the [Court of Justice of the 
European Union (‘the CJEU’)] for a preliminary ruling on the question as to 
whether VAT is or is not due in a situation of tortious civil liability raised in the 
appeal brought by the applicant – now the appellant – association Centrul Român 
EN 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2024 – CASE T-643/24 
 
2  
pentru Administrarea Drepturilor Artiștilor Interpreți (Romanian Centre for the 
Administration of Performing Artists’ Rights (‘CREDIDAM’)) against the civil 
judgment [of] 19 April 2023 delivered by the Tribunalul București – Secţia a III-a 
Civilă (Regional Court, Bucharest, Romania – Third Civil Division) (‘the 
Tribunalul’), in the proceedings brought against the defendant – now the 
respondent – Cristian General Serv SRL, in a case concerning copyright and 
related rights. 
[…] 
THE COURT 
In the present civil case, notes the following: 
Subject matter of the main proceedings and relevant facts 
1 The Romanian Centre for the Administration of Performing Artists’ Rights 
(CREDIDAM) – is a collective management organisation which collects and 
distributes remuneration due to Romanian or foreign performing artists who are 
holders of rights related to copyright and whose artistic performances are used in 
Romania. 
By application brought on 25 November 2022 before the Tribunalul, 
CREDIDAM sought, on the basis of tortious civil liability, an order that the 
defendant – now the respondent – pay a sum of money (including VAT) 
representing three times the remuneration due to performing artists for the 
communication to the public of phonograms or reproductions thereof and artistic 
performances in the audiovisual field during the period from 1 October 2019 to 
31 December 2022, and order the respondent to conclude authorisations in the 
form of non-exclusive licences with CREDIDAM for the communication to the 
public of phonograms or reproductions thereof and artistic performances in the 
audiovisual field for the space administered. 
Cristian General Serv SRL is a Romanian legal person which owns a 3 [star] rated 
tourist guesthouse. 
2 By civil judgment [of] 19 April 2023, the Tribunalul dismissed the action as 
unfounded, holding, with regard to the first head of claim, that the respondent had 
not carried out any commercial activity during the period at issue, with the result 
that, although it owned a space in which it could have communicated phonograms 
or reproductions thereof or artistic performances in the visual field, in practice, 
this did not happen. With regard to the second head of claim, it took into account, 
on the one hand, the fact that the space owned by the respondent had been 
removed in February 2023 and, on the other, the fact that the provisions of 
Article 162(1)(b) of [Legea nr. 8/1996 privind dreptul de autor și drepturile 
conexe (Law No 8/1996 on copyright and related rights; ‘the Law on Copyright’)] 
do not derogate from the principle of freedom of contract governed by the Codul 
civil (Civil Code) and impose only an obligation on the appellant to grant users 
CREDIDAM 
 
3 
authorisations in the form of non-exclusive licences if those users intend to 
request such authorisations. 
3 The appellant brought an appeal against that civil judgment, requesting that the 
appeal be upheld, that the civil judgment under appeal be set aside in its entirety 
and that the action as brought at first instance be upheld, considering, in essence, 
that it had proved that the respondent had carried out a communication to the 
public. 
The appeal was registered with the present court, namely the Curtea de Apel 
București – Secţia a IV-a Civilă (Court of Appeal, Bucharest, Romania – Fourth 
Civil Division) (‘the Curtea de Apel’ or ‘the referring court’). 
4 In the course of the proceedings, in view of the fact that the appellant requested 
that the claims should also include VAT, the Curtea de Apel put it to the parties 
that a reference could be made to the CJEU under Article 267 TFEU regarding 
that issue. 
5 Following the discussion of the need to make such a reference, the appellant has 
stated, in its written and oral submissions, that it leaves it to the Curtea de Apel to 
assess the issue of VAT, while pointing out that it is a legal person liable to pay 
VAT and that there is no clear provision in the Codul fiscal (Tax Code) to the 
effect that compensation claimed under tortious civil liability would not be subject 
to VAT. The respondent has taken the view that there is no need to make such a 
reference as the amounts are not subject to VAT, as provided for in the Tax Code. 
6 The Curtea de Apel considers it necessary, for the purposes of adjudication, 
to refer questions to the CJEU for a preliminary ruling, for the reasons set 
out below. 
Relevant legal provisions 
7 Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010 
(‘the VAT Directive’) 
Article 2 
1. The following transactions shall be subject to VAT: 
[…] 
(c) the supply of services for consideration within the territory of a Member 
State by a taxable person acting as such; 
[…] 
Article 24 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2024 – CASE T-643/24 
 
4  
1. ‘Supply of services’ shall mean any transaction which does not constitute a 
supply of goods. 
Article 25 
A supply of services may consist, inter alia, in one of the following transactions: 
(a) the assignment of intangible property, whether or not the subject of a 
document establishing title; 
[…] 
Article 28 
Where a taxable person acting in his own name but on behalf of another person 
takes part in a supply of services, he shall be deemed to have received and 
supplied those services himself. 
Article 73 
In respect of the supply of goods or services, other than as referred to in 
Articles 74 to 77, the taxable amount shall include everything which constitutes 
consideration obtained or to be obtained by the supplier, in return for the supply, 
from the customer or a third party, including subsidies directly linked to the price 
of the supply. 
Article 79 
The taxable amount shall not include the following factors: 
(a) price reductions by way of discount for early payment; 
(b) price discounts and rebates granted to the customer and obtained by him at 
the time of the supply; 
(c) amounts received by a taxable person from the customer, as repayment of 
expenditure incurred in the name and on behalf of the customer, and entered in his 
books in a suspense account. 
8 Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax 
Code) (in force at the date of the imputed offence: 1 October 2019 to 
31 December 2022) 
Article 268 
Taxable transactions 
For the purposes of VAT, transactions which satisfy all of the following 
conditions shall be taxable in Romania: 
CREDIDAM 
 
5 
(a) transactions which, within the meaning of Articles 270 to 272, constitute or 
are treated as a supply of goods or services, which is subject to VAT, for 
consideration; 
Article 271 
Supply of services 
(1) A supply of services shall mean any transaction which does not constitute a 
supply of goods as defined in Article 270. 
(2) Where a taxable person acting in his or her own name but on behalf of 
another person takes part in a supply of services, he or she shall be deemed to 
have received and supplied those services him- or herself. 
(3) Supplies of services include transactions such as: 
(a) the letting or making available of goods under a financial leasing contract; 
(b) the assignment of intangible property, whether or not the subject of a 
document establishing title, such as: the transfer and/or assignment of copyrights, 
patents, licences, trade marks and other similar rights; 
(c) the undertaking not to engage in an economic activity, not to enter into 
competition with another person or to tolerate an act or situation; 
(d) the performance of services in pursuance of an order made by or in the name 
of a public authority or in pursuance of the law; 
(e) intermediation services carried out by persons acting in the name and on 
behalf of other persons where they are involved in a supply of goods or services. 
Article 286 
(4) The taxable amount shall not include the following: 
(b) amounts representing damages, as determined by a final judicial decision or 
by a final and irrevocable judicial decision, where applicable, penalties and any 
other amounts claimed for total or partial breach of contractual obligations, if 
charged in excess of the negotiated prices and/or tariffs; 
9 Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on 
copyright and related rights) (‘the Law on Copyright’). 
The grounds which prompted the Curtea de Apel to refer the question for a 
preliminary ruling 
10 The questions which the Curtea de Apel, in its capacity as the court hearing the 
appeal, refers to the CJEU concern the classification as a supply of services for 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2024 – CASE T-643/24 
 
6  
consideration by the holder of the related right within the meaning of the VAT 
Directive, where the user carries out a communication to the public of protected 
works in the absence of a licence to that effect, and whether the fact that, under 
national law, the holder of such a related right is not able to object to the uses, 
being entitled only to the single equitable remuneration, or the method of 
calculation used in determining the amounts due, is relevant for that classification. 
11 It should be noted that the claims pursued by the appellant in the pending dispute 
are those relating to the rights of performing artists regarding the communication 
to the public of phonograms or reproductions thereof and artistic performances in 
the audiovisual field in the tourist accommodation unit which is owned by the 
respondent and is equipped with the technical means to do so (televisions). 
12 According to Article 98(1)(g) and (h) of the Law on Copyright, a performing artist 
has the exclusive economic right to authorise or prohibit the broadcasting and 
communication to the public of his or her performance, unless the performance 
has already been fixed or broadcast (as in the present case), in which case he or 
she is entitled only to equitable remuneration. In addition, in accordance with the 
provisions of Article 121 of that law, where rightholders receive compulsory 
remuneration by operation of law, they may not object to the uses which give rise 
to such remuneration. 
13 The single equitable remuneration due to performing artists for subsequent uses is 
collected by the collective management organisation which then distributes it to 
the rightholders whose rights it manages. 
14 According to Article 98(3) and Article 112(2) of the Law on Copyright, the 
amount of such remuneration is to be determined by methodologies. According to 
the law, those methodologies are to be negotiated between collective management 
organisations and users or users’ associations, and, in case of disagreement, 
arbitration may be called for, in accordance with the form of the law at the time of 
the adoption of the methodology applicable in the particular case. The final form 
of the methodology is, according to the law, binding on all users in the field for 
which it was negotiated or adopted. 
15 In accordance with the provisions of the methodology applicable to the present 
case (published in the Monitorul Oficial al României (Official Journal of 
Romania) by [Decision No 120/2016 of the Oficiul Român pentru Drepturile de 
Autor (Romanian Copyright Office) (ORDA)]), the amount of those 
remunerations is to be determined according to several criteria such as: the surface 
area of the space where the communication to the public is carried out, the number 
of rooms in the accommodation unit, its location (rural/urban/resort), the type of 
space (accommodation, catering, and so on), the type of transport, and so on. 
16 According to that methodology, the appellant is to grant, at the request of users, an 
authorisation in the form of a non-exclusive licence for the use of the protected 
CREDIDAM 
 
7 
repertoire in exchange for the payment of the remuneration determined by the 
methodology. 
17 Similarly, according to paragraph 3.12 of the applicable methodology, where a 
user communicates to the public works from the protected repertoire without first 
obtaining an authorisation in the form of a non-exclusive licence, he or she is 
obliged to pay to the organisation for the collective management of performing 
artists’ related rights an amount of money representing three times the amount 
which would have been legally due if he or she had held an authorisation in the 
form of a non-exclusive licence. 
18 The point of law set out in the questions referred has been raised in the recent 
case-law of the CJEU, with reference to the judgments handed down in Cases 
C-37/16 (SAWP), C-501/19 (UCMR – ADA), and C-179/23 (CREDIDAM). 
19 The situation in the present case differs from that found to exist in Case C-501/19, 
as the latter case concerns holders of copyright in a musical work who have the 
economic right to prohibit and authorise the communication to the public of their 
work (Article 13(f) of the Law on Copyright). In that case, that right of 
authorisation had been exercised through the collective management organisation, 
which had issued, at the request of the user, an authorisation in the form of a non-
exclusive licence, an aspect which, moreover, was taken as an argument in the 
answer to the first question referred in that case (see, to that effect, paragraphs 34 
and 35 of the judgment in Case C-501/19). 
20 It is also different from the situation analysed in Case C-179/23, as that case 
concerned the management activity carried out by collective management 
organisations for the benefit of holders of copyright and related rights, it being 
made clear by the judgment in that case that VAT is due on the commission 
charged by a collective management organisation even where it relates to 
remuneration collected on behalf of rightholders which does not constitute 
consideration for services supplied by those rightholders to the users from whom 
the remuneration has been collected. 
21 As regards the judgment in Case C-37/16 (SAWP), the Curtea de Apel notes, 
firstly, that that case concerned another economic right, namely that of 
reproduction in the case of private copying. Next, the Curtea de Apel points out 
that, in that judgment, the CJEU used two main arguments to hold that there was 
no transaction for consideration characterising a ‘supply of services’. 
22 [In the first place], there was no legal relationship pursuant to which there was 
reciprocal performance by, on the one hand, holders of reproduction rights or, as 
the case may be, the organisation collectively managing such rights and, on the 
other, producers and importers of blank media and of recording and reproduction 
devices. The obligation to pay fees, such as those at issue in the main proceedings 
in that case, was owed by those manufacturers and importers by virtue of the 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2024 – CASE T-643/24 
 
8  
national legislation which also determined their amount (paragraphs 27 and 28 of 
that judgment). 
23 [In the second place], the fair compensation due to the rightholders did not 
constitute the direct consideration for any supply of services, because it was 
linked to the harm resulting for those rightholders from the reproduction of their 
protected works without their authorisation (paragraph 30 of that judgment). 
24 In the referring court’s view, it cannot be ruled out that the first argument may be 
valid in the present case, given that, under national law, performing artists cannot 
object to subsequent uses for which they are to receive compulsory remuneration 
under the law, which could lead to the obligation of the user being classified as 
arising by operation of law and not from a legal relationship in which there is a 
reciprocal performance. On the other hand, the fact that the obligation to pay a 
sum of money is regulated by law is not, in itself, sufficient to exclude the 
transaction from being classified as a ‘supply of services’ (see also, to that effect, 
the judgment in Case C-179/23, paragraph 40), it being also necessary to verify 
whether the other requirements laid down in the case-law of the CJEU are met. 
Thus, following the reasoning, the obligation to pay remuneration is, in reality, 
correlative to the right of the user to use the work. Even if both the obligation and 
the correlative right of the user have their source in the law, it cannot be ignored 
that they have as their premiss the action of the holder of the related right of 
fixation or broadcasting of his or her work, within the meaning of Article 98(1)(g) 
of the Law on Copyright, which made it possible for both the right of the user to 
use the work by broadcasting or communication to the public, and the obligation 
correlative to the actual use of the work, to arise. 
25 The referring court also points out that any authorisation in the form of a non-
exclusive licence granted by a collective management organisation, in accordance 
with the applicable methodology, would have included as matters of fact and law 
only the matters set out in the methodology with reference to the specific situation 
of the user, the remuneration being that determined according to the criteria 
referred to (for example, for communication to the public carried out in the 
context of a tourist guesthouse with up to three stars situated in [a] commune or 
village, a fixed monthly amount set out in the methodology is due). The same 
matters are also analysed from the point of view of determining the remuneration 
in a situation in which the user carries out a communication to the public in the 
absence of an authorisation in the form of a non-exclusive licence, the difference 
being that the first situation is ante factum, while the second is post factum, that is 
to say, after the work has been used. 
26 In such a context, in conjunction with the fact that the holder of the related right 
may not object to subsequent uses for which he or she receives, under the law, 
compulsory remuneration, the question arises as to whether the possible grant of 
an authorisation in the form of a non-exclusive licence by a collective 
management organisation is in fact a factor which may be taken into account in 
the analysis of the existence of a legal relationship between the holder of the 
CREDIDAM 
 
9 
related right, through the collective management organisation, and the user, or 
whether the decisive criterion for analysis is whether or not there is a right of the 
related rightholder to object to subsequent uses, and, in the latter case, whether the 
right of the user to use the work is sufficient for it to be considered that a legal 
relationship is thus created, by operation of law, between the rightholder and the 
user. 
27 As regards the amount of the remuneration, the Curtea de Apel points out that this 
is, according to the law, to be the result of negotiations between collective 
management organisations and users or users’ associations as indicated above. As 
the CJEU held in its judgment in Case C-501/19 (paragraph 36), the manner in 
which the remuneration is determined according to the applicable methodology is 
irrelevant as long as it is intended to remunerate the service provided. 
28 In this regard, the Curtea de Apel points out that, on the understanding that the 
service provided by the holder of the related right is subject to the communication 
to the public of his or her work by the user, the question arises as to whether 
remuneration determined by reference to criteria such as the tourist classification 
of the accommodation unit, the number of rooms, the location of that unit, and so 
on, may be regarded as consideration for the service. Thus, in the circumstances of 
the case, the appellant requested that the remuneration should be calculated by 
reference to the classification D2 in the table set out in the applicable 
methodology, that is to say, the remuneration for a 3 [star] rated tourist guesthouse 
situated in a commune or village, for which a fixed monthly amount is indicated 
corresponding to the communication of phonograms and another fixed monthly 
amount is indicated corresponding to audiovisual communication. 
29 Next, the Curtea de Apel refers to the case-law of the CJEU outlining the concept 
of communication to the public of hotel operators who install, in the 
accommodation rooms, technical means allowing the broadcasting of radio and 
TV signals, on the basis that the act carried out by a hotel operator in order to 
ensure that its guests have access to the works broadcast constitutes an additional 
service which has an influence on the standard of that establishment and, 
therefore, on the price of the rooms (see, to that effect, Case C-306/05, SGAE, 
paragraph 44, and Case C-162/10, Phonographic Performance (Ireland), 
paragraph 44). 
30 On the understanding that such an additional service offered to guests, which may 
have been provided as a result of the use of the works of performing artists, has an 
influence on the standard of the accommodation unit and, therefore, on the price 
of the rooms, the question arises as to whether a remuneration determined 
according to criteria such as the tourist classification of the accommodation unit 
and its location (commune or village) could be regarded as intended to remunerate 
the service thus provided, that is to say, the benefit of using the work, and whether 
the remuneration calculated in that way can thus be regarded as consideration for 
that service. 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2024 – CASE T-643/24 
 
10  
31 The last aspect relating to the method of calculating the remuneration concerns the 
fact that, according to the provisions of paragraph 3.12 of the applicable 
methodology, where the user communicates works from the protected repertoire 
to the public without first obtaining an authorisation in the form of a non-
exclusive licence, he or she is obliged to pay to the organisation for the collective 
management of performing artists’ related rights an amount of money representing 
three times the amount which would have been legally due if he or she had held an 
authorisation in the form of a non-exclusive licence. 
32 In the present case, the appellant has requested, as indicated above, the application 
of those provisions, given that an authorisation in the form of a non-exclusive 
licence was not issued in the present case. 
33 If it is held that the remuneration determined, in accordance with the applicable 
methodology, is intended to remunerate the service provided, the question arises 
as to whether an amount equivalent to three times that remuneration corresponds 
to the same criterion, or whether, even if there is a supply of services in question, 
VAT is due only on the remuneration and not on the remuneration in triplicate, 
with VAT thus being applied on a pro rata basis, or whether such a method of 
calculating the remuneration made post factum is not sufficient to characterise an 
economic exchange between the service provided and the obligation to pay. 
34 […][questions set out in the operative part] 
35 At the same time, having regard to the provisions of Article 412(1)(7) of the 
Codul de procedură civilă (Code of Civil Procedure), the Curtea de Apel will stay 
the hearing of the appeal until the CJEU has given its preliminary ruling. 
ON THOSE GROUNDS 
IN THE NAME OF THE LAW 
ORDERS 
Pursuant to Article 267 TFEU, the following questions are referred to the Court of 
Justice of the European Union for a preliminary ruling: 
(1) On a proper construction of Article 2(1)(c), Article 24(1), and Article 25(a) 
of Directive 2006/112/EC, do holders of related rights carry out a supply of 
services for consideration where the user carries out a communication to the 
public of protected works in the absence of a licence to that effect? 
(2) Does the answer to the first question depend on whether, under national law, 
the holder of such a related right is not able to object to the uses, being entitled 
only to the single equitable remuneration, or does it depend on the method of 
calculation used in determining the amounts due? 
[…]