Judgment;Summary — ECLI:EU:C:2023:919
Date: 2023-11-23
Language of the case: Romanian
Court formation: Tenth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary  C-532/22 ‒ 1 
Case C-532/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 August 2022 
Referring court: 
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
3 June 2022 
Appellants: 
Direcția Generală Regională a Finanțelor Publice Cluj-Napoca 
Administrația Județeană a Finanțelor Publice Cluj 
Respondent: 
SC Westside Unicat SRL 
  
Subject matter of the main proceedings  
Appeal against the judgment of the Tribunalul Maramureș (Regional Court, 
Maramureș, Romania) upholding the action brought by SC Westside Unicat SRL 
(‘the applicant at first instance’ or ‘the applicant’) for the annulment of certain 
value added tax (VAT) decisions adopted by the Direcția Generală Regională a 
Finanțelor Publice Cluj-Napoca (Regional Directorate-General of Public Finances, 
Cluj-Napoca) and the Administrația Județeană a Finanțelor Publice Cluj 
(Provincial Administration of Public Finances, Cluj) (‘the defendants at first 
instance’ or ‘the defendants’). The main legal issue raised in the case is the 
application of VAT to services consisting in interactive sessions of an erotic 
nature that are filmed in Romania and streamed live via a website operated by a 
company in the United States of America. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-532/22 
 
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Subject matter and legal basis of the request 
In accordance with Article 267 TFEU, interpretation is sought of Article 53 of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘the VAT Directive’). 
Questions referred for a preliminary ruling 
1. Is Article 53 of the VAT Directive to be interpreted as applying to services 
of the type at issue in this dispute, which is to say services provided by a video 
chat studio to a website operator, consisting in interactive sessions of an erotic 
nature filmed and transmitted in real [time] via the Internet (live streaming of 
digital content)?  
2. In the event that the first question is answered in the affirmative, then, for 
the purposes of interpreting the phrase ‘the place where those events actually take 
place’, appearing in Article 53 of the VAT Directive, is the place where the 
performers appear in front of the webcam relevant, or the place where the 
organiser of the sessions is established, or the place where customers see the 
images, or should some other place be taken into account?  
Provisions of European Union law and case-law of the Court of Justice relied 
on 
The VAT Directive, Articles 28, 44 and 53; 
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, Articles 32, 33 and 33a; 
Judgment of 8 May 2019, Geelen (C-568/17), EU:C:2019:388 (‘the judgment in 
Geelen’). 
Provisions of national law relied on  
Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax 
Code, ‘the Tax Code’), Article 125(7), Article 271(2), Article 278 and 
Article 321(5). Article 278(6)(b) of the Tax Code transposes into Romanian law, 
in substantially identical terms, Article 53 of the VAT Directive. 
Hotărârea nr. 1 din 6 ianuarie 2016 a Guvernului României pentru aprobarea 
Normelor metodologice de aplicare a Legii nr. 227/2015 privind Codul fiscal 
(Decree No 1 of the Romanian Government of 6 January 2016 approving the 
methodological rules for the implementation of Law No 227/2015 establishing the 
Tax Code), point 22(4), (5), (6), (7) and (8) and point 102(11). 
WESTSIDE UNICAT 
 
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Succinct presentation of the facts and procedure in the main proceedings  
1 The applicant at first instance operates a video chat business, providing adult 
entertainment services. For that purpose, it has concluded association contracts 
with various natural persons (‘performers’) who participate in interactive sessions 
of an erotic nature (‘sessions’) and also a streaming contract with StreamRay INC, 
a legal person registered in Nevada (the United States of America), which 
operates a website through which final customers are given access to the sessions. 
2 Under the association contracts, the applicant provides the performers with 
premises from which to work, along with the necessary materials for their 
sessions, and advises them on how to ensure that the services provided are of a 
certain quality. It also provides part of the technical support needed for the live 
streaming of the sessions to final customers (webcams and microphones). In 
addition, the applicant represents the performers in their dealings with StreamRay 
for the purposes of the collection and receipt of the sums due to them in return for 
the services they provide, and the sums due to the performers are paid exclusively 
by the applicant. 
3 Under the streaming contract, in which the applicant is identified as the organiser 
of the sessions, the original content of the sessions is uploaded to a website 
operated by StreamRay for the entertainment of its customers worldwide. Thus, 
the sessions are filmed and transmitted in real time, and customers are able to 
interact with the performers. The streaming contract also provides that the final 
customers are StreamRay’s customers and that it is that company that sets the fees 
to be paid by customers and collects payment thereof, while the applicant and the 
performers receive a certain percentage of that revenue. It is also apparent from 
the contract that, after the sessions have been streamed, the copyright in the digital 
content belongs to StreamRay. 
4 StreamRay is the party that provides final customers with actual access to the 
sessions in question and it concludes contracts with natural persons for that 
purpose. It is apparent from those contracts that the services in question are 
provided by StreamRay. It creates access accounts for customers, manages the 
types of services and packages of services offered to customers, sets the relevant 
fees and payment methods and receives the corresponding sums. 
5 The applicant was the subject of an inspection by the tax authorities with regard to 
the assessment of value added tax (VAT) for the period from 1 September 2019 to 
30 June 2020. The tax authorities found, on that occasion, that the applicant had 
recorded income of 3 399 056 Romanian lei (RON) on the basis of invoices issued 
[to] StreamRay. However, at the time when those invoices were issued, the 
applicant believed that the provision of services [to] StreamRay was exempt from 
VAT in Romania, for the reason that the place where those services were provided 
could not be regarded as being within the territory of that Member State. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-532/22 
 
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6 However, the tax authorities took the view, on the basis of Article 278(6)(b) of the 
Tax Code and the judgment in Geelen, that the services had been supplied in 
Romania, since those services were related to the granting of access to 
entertainment events and the applicant was the organiser of those events. As a 
result, by a notice of assessment dated 13 November 2020, the applicant was 
required to pay the sum of RON 640 433 by way of VAT in respect of the 
abovementioned revenue. 
7 The administrative appeal which the applicant brought was dismissed by decision 
of 4 February 2021 of the Regional Directorate-General of Public Finances, Cluj-
Napoca. 
8 The applicant brought an action challenging those two decisions before the 
Regional Court, Maramureș, which was, in part, upheld by judgment of 
19 October 2021. The court found that, given the factual context of the case, 
StreamRay was not merely an Internet access provider. Indeed, the service 
provided by the applicant was of benefit to StreamRay, even though it was the 
latter company that provided customers, on a contractual basis, with access to the 
sessions for which they paid a participation fee. Consequently, that company was 
the provider of those services, in the sense accepted in paragraph 1 of the 
operative part of the judgment in Geelen. 
9 It was also held in that judgment that the services were provided by the applicant 
to a taxable person in a country outside the European Union, from which the final 
customer purchased the integrated video chat service, which was provided and 
made available to the final consumer only through the ownership of a website, 
software and a dedicated server, all of which were owned by StreamRay. The 
court of first instance thus took the view that the services provided by the 
applicant were not related to the granting of access to entertainment events. 
10 As regards the place of supply of those services, the court of first instance 
considered that, in the judgment in Geelen, the Court of Justice had ultimately 
held that the taxation of services such as those at issue had to be carried out at the 
place where the supplier was established and not at the place where the show was 
physically performed by the performers. 
11 The defendants at first instance have brought an appeal against that judgment 
before the referring court. 
The essential arguments of the parties in the main proceedings  
12 The applicant at first instance maintains that the services provided [to] the 
company StreamRay are exempt from VAT in Romania because the place of 
supply cannot be regarded as being in that Member State. 
13 The defendants at first instance submit that, in accordance with Article 278(6)(b) 
of the Tax Code and Article 53 of the VAT Directive, both the organiser of the 
WESTSIDE UNICAT 
 
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entertainment event and third parties acting on their own behalf must be regarded 
as granting access to that entertainment event. The defendants emphasise the 
factual similarities between the present case and the case in Geelen and conclude 
that, since the applicant is the organiser of the entertainment events in question, 
the services which it provides are services related to the grant of access to 
entertainment events, even if third parties acting on their own behalf participate in 
the provision of that access. Since the entertainment events actually take place in 
Romania, where both the performers and the organiser of the events in question 
are located, the services at issue are subject to VAT. 
Succinct presentation of the reasoning in the request for a preliminary ruling  
14 The referring court states that the dispute in the main proceedings concerns the 
lawfulness of administrative tax measures imposing a VAT liability in respect of 
the services which the applicant provides to StreamRay, those services consisting 
in interactive sessions of an erotic nature that are filmed and live streamed on the 
Internet. Consequently, it is necessary to establish whether those services are 
related to the grant of access (‘admission’) to entertainment events, within the 
meaning of Article 53 of the VAT Directive.  
15 It emphasises that, in the judgment in Geelen, the Court of Justice interpreted a 
previous version of the provisions which apply to such services. Thus, whereas 
Article 52(a) of the VAT Directive, in the form analysed in that earlier judgment, 
referred to ‘services relating to entertainment activities’, the version which applies 
to the dispute in the main proceedings refers to ‘services in respect of admission to 
entertainment events’. 
16 Having regard to the content of Article 53 of the VAT Directive and the 
considerations in the judgment in Geelen, the referring court considers that the 
services provided by the applicant appear to be services in respect of admission to 
entertainment events. Indeed, Article 53 of the VAT Directive refers [in the 
Romanian language version] not merely to services relating to access or admission 
to entertainment events, but to services relating to the grant of such access 
[‘serviciilor … legate de acordarea acestui acces’], and so it covers a wider range 
of services. 
17 Also of relevance are the provisions of Articles 32, 33 and 33a of Implementing 
Regulation No 282/2011, according to which services in respect of admission to 
entertainment events include all services of which the essential characteristics are 
the granting of the right of admission to an event in exchange for a ticket or 
payment, including payment in the form of a subscription, a season ticket or a 
periodic fee. 
18 The referring court considers, on the basis of the facts of the case, that the 
applicant is the organiser of the entertainment events in question. Thus, it 
emphasises that filming the sessions and transmitting them in real time to final 
consumers would not be possible without the services provided by the applicant. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-532/22 
 
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Similarly, in its relationship with StreamRay, it is the applicant that represents the 
performers, collects the fees due to them and has access to the platform operated 
by StreamRay in order to be able to verify matters relating to those receipts. Even 
though it is StreamRay that ensures that customers can actually access the 
sessions, by concluding contracts with them, creating access accounts for them 
and setting the fees for various services, all those activities would not, without the 
services provided by the applicant, ensure that final customers had access to the 
sessions. The fact that, after the transmission, StreamRay has the copyright in the 
digital content should be irrelevant in the present case, since it is a supply of 
services, not a supply of goods, that is at issue here. 
19 Given those circumstances, the referring court considers that the services provided 
by the applicant are related to the granting of access or admission to entertainment 
events. Since the performers participate in the sessions from a location in 
Romania, and the organiser of those entertainment events is also established in 
Romania, the place where the entertainment events actually take place is 
Romania, under Article 53 of the VAT Directive. 
20 The referring court points out that, at the request of the Romanian tax authorities, 
Article 53 of the VAT Directive was analysed, with reference to services of the 
kind provided by the applicant, by the VAT Committee, set up at European 
Commission level, in Working Paper No 1013 of 22 March 2021. According to 
that committee, the fact that the video chat studio has the tools and equipment 
(including IT equipment) which the performers use to create the digital content 
does not bring the studio services within the scope of the concept of ‘an admission 
to an entertainment event’. Those tools make it possible to create the digital 
content, but do not actually provide admission to an event. Furthermore, once that 
job is done, the website operator acquires the copyright in the digital content, 
meaning that this is a supply of an intangible right. 
21 Thus, the VAT Committee’s conclusion was that services like these, while 
relating to entertainment events, are not related to the granting of access or 
admission to such events, and should fall not under Article 53, but under the 
general rule laid down in Article 44 of the directive. If that general rule were 
applied in this case the transactions in question should be exempt from VAT in 
Romania. However, that conclusion was formulated with the caveat that the 
committee lacked information as to how final customers connected with 
performers via the interfaces between the website operator and the video chat 
operator. 
22 Finally, the referring court states that, if it is held that the service provided by the 
applicant does fall under Article 53 of the VAT Directive, then it will be 
necessary to interpret the concept of ‘the place where those events actually take 
place’, which is to say, whether that place is the place where the performers 
appear in front of the webcam, or the place where the organiser of the sessions is 
established, or the place where customers see the images, or some other place.