Opinion of the Advocate General — ECLI:EU:C:2022:685
Date: 2022-09-15
Language of the case: English
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

SUMMARY OF THE FACTS IN THE CASE 
6. 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. 
 
7. 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. 
  
8. Therefore, Creators charge and earn money from content and Fans pay money for 
content. 
  
9. 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. 
  
10. 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. 
  
11. At all material times, Fenix charged and accounted for VAT at a rate of 20% on the 
Charge. 
  
12. 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. 
 
13. 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. 
  
14. 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. 
  
15. On 27 July 2020, Fenix filed an appeal disputing the legal basis for the assessment and 
also the quantum. 
  
16. 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)). 
E. THE LEGAL FRAMEWORK  
EU Legislation 
Article 113 of the Treaty on the Functioning of the European Union (“TFEU”), formerly 
Article 93 of the Treaty Establishing the European Community (“TEC “),  provides: 
 “The Council shall, acting unanimously in accordance with a special legislative 
procedure and after consulting the European Parliament and the Economic and Social 
Committee, adopt provisions for the harmonisation of legislation concerning turnover 
taxes, excise duties and other forms of indirect taxation to the extent that such 
harmonisation is necessary to ensure the establishment and the functioning of the 
internal market and to avoid distortion of competition.” 
Article 291 TFEU provides: 
 
“1. Member States shall adopt all measures of national law necessary to implement 
legally binding Union acts. 
 
2. Where uniform conditions for implementing legally binding Union acts are needed, 
those acts shall confer implementing powers on the Commission, or, in duly justified 
specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on 
European Union, on the Council. 
 
3. For the purposes of paragraph 2, the European Parliament and the Council, acting by 
means of regulations in accordance with the ordinary legislative procedure, shall lay 
down in advance the rules and general principles concerning mechanisms for control by 
Member States of the Commission's exercise of implementing powers. 
 
4. The word ‘implementing’ shall be inserted in the title of implementing acts.” 
 
20. Pursuant to Article 113 TFEU and its predecessors, the Council has adopted the various 
VAT Directives, including the VAT Directive (OJ L 347, 11.12.2006, p. 1). 
  
21. Article 28 of the VAT Directive provides:  
 
 “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.” 
  
22. Article 397 of the VAT Directive provides: 
 
 “The Council, acting unanimously on a proposal from the Commission, shall adopt the 
measures necessary to implement this Directive.” 
23. Article 397 of the VAT Directive is the successor to Article 29a of the Sixth Council 
Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the 
Member States relating to turnover taxes — Common system of value added tax: 
uniform basis of assessment (OJ 1977 L 145, p.1) (the “Sixth Directive”).  Article 29a 
of the Sixth Directive was inserted by Article 1(2) of Council Directive 2004/7/EC of 
20 January 2004 amending Directive 77/388/EEC concerning the common system of 
value added tax, as regards conferment of implementing powers and the procedure for 
adopting derogations (OJ L 27, 30.1.2004). 
24. Pursuant to Article 397, the Council adopted 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 (recast) (OJ L 77, 23.3.2011, 
p. 1). 
25. Council Implementing Regulation (EU) No. 282/2011 of 15 March 2011 was amended 
by Article 1(1)(c) of Council Implementing Regulation (EU) No. 1042/2013 of 7 
October 2013 amending Implementing Regulation (EU) No 282/2011 as regards the 
place of supply of services (OJ L 284, 26.10.2013, p. 1), which inserted Article 9a, 
which provides:  
“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.” 
United Kingdom legislation 
26. At all times, Implementing Regulation 282/2011/EU was directly applicable in the 
United Kingdom (and throughout the Union).  The questions referred by the UK Tax 
Tribunal concern only the validity of Article 9a.  
F. THE DISPUTE IN THE MAIN PROCEEDINGS 
Summary of Fenix’s arguments 
27. Article 9a changes the application of Article 28 in two fundamental respects, namely: 
  
Firstly, it introduces a presumption that a platform which takes part in a supply of 
certain electronic services is acting in its own name and on behalf of the provider. In 
other words, it is deemed to have purchased and onward-supplied those services itself, 
and consequently has to account for VAT. That presumption is rebuttable only if 
certain conditions are fulfilled, such as where the agent's principal is explicitly 
indicated as the supplier by the agent and that is reflected in the contractual 
arrangements between the parties. 
Secondly, even if the identity of an agent's principal is disclosed it prevents the 
presumption from being rebutted where the digital platform: 
authorises the charge to the customer, or  
authorises the delivery of the services, or  
sets the general terms and conditions of the supply. 
28. In summary, even where the fact of agency is clear and the identity of the principal is 
known, Article 9a provides a new fiction that the agent is treated as making and 
receiving a supply. That fundamentally changes the approach to the liability of agents 
for their actions in the realm of VAT. It deprives parties of contractual autonomy and 
goes far further than Article 28. 
 
29. This significant change to the liability of agents amounts to amending and/or 
supplementing Article 28 by adding new rules. Article 9a goes far further than the 
implementation of Article 28 as permitted by Article 397. It is not simply clarification 
of Article 28. 
 
30. Article 9a amounts to a policy decision to shift both the liability and the burden of 
taxation to any internet platform since, whilst the presumption is technically 
rebuttable it is, in practice, almost impossible to rebut given the width of the 
provisions. 
Summary of HMRC’s arguments  
31. Article 28 is in wide and general terms.  Self-evidently, it has, and must be given, an 
independent meaning in EU law.   Article 9a clarifies and/or provides “further detail” 
of that independent EU law meaning in the specific context of the application of 
Article 28 and provides further detail of - when a taxable person “is acting in his own 
name but on behalf of another person”, when in that capacity the taxable person 
“takes part in a supply of [the specified] services” and, consequently, when the 
taxable person “shall be deemed to have received and supplied those services 
himself”. 
32. Article 9a simply clarifies Article 28.  It is not an amendment.  It does not derogate 
from Article 28. 
33. If Article 9a is valid it is obvious that it applies to the appellant and its activities and the 
appellant cannot rebut the presumption introduced by Article 9a, regardless of any 
question of agency. 
34. Article 9a  
 
(i) complies with the essential general aims pursued by Article 28 and the VAT 
Directive as a whole; and  
(ii) is necessary or appropriate for the implementation of Article 28 and the VAT 
Directive as a whole, without supplementing or amending it.   
The Council must thus be deemed to have provided, by Article 9a, further detail in relation to 
Article 28 and the VAT Directive as a whole. 
G. THE UK TAX TRIBUNAL’S REASONS FOR REFERRING A QUESTION TO 
THE COURT OF JUSTICE  
35. The UK Tax Tribunal considers that a decision of the Court of Justice on the question 
below concerning the validity of Article 9a is necessary to enable it to give judgment.  
The UK Tax Tribunal has doubts about the validity of Article 9a and must therefore 
refer the matter to the Court of Justice.  The UK Tax Tribunal’s reasons why it has 
such doubts are set out in the following paragraphs.1 
 
36. Article 9a is meant to implement Article 28 of the VAT Directive but it is strongly 
arguable that it goes beyond implementation. 
 
37. As the Advocate General explained in C-427/12 European Commission v European 
Parliament and the Council, 19 December 2013, ECLI:EU:C:2013:871, (“CPC”) 
implementing measures are very limited in scope, in contrast to the wider 
discretionary remit of delegated legislation.2  
 
38. The CJEU considered the limits on implementing legislation in terms of Article 291 
TFEU in C-65/13 European Parliament v European Commission, 15 October 2014, 
ECLI:EU:C:2014:2289, (“EURES”). In summary, a provision purporting to 
implement a legislative act is lawful only if it meets the following three criteria:  
 
(1) The contested provision must “comply with the essential general aims pursued by the 
legislative act” that it purports to implement; 
 
(2) The contested provision must be “necessary or appropriate for the implementation” of 
the legislative act that it purports to implement; 
 
(3) The contested provision “may neither amend nor supplement the legislative act, even as 
to its non-essential elements.”  
 
39. The Commission’s Communication from the Commission to the European Parliament 
and the Council on the Implementation of Article 290 TFEU stated: 
 
 “….Secondly, it should be noted that the authors of the new Treaty did not conceive the scope of the two 
articles in the same way. The concept of the delegated act is defined in terms of its scope and 
consequences – as a general measure that supplements or amends non-essential elements – whereas that 
of the implementing act, although never spelled out, is determined by its rationale - the need for unifo rm 
                                                             
1 The UK Tax Tribunal has handed down a reasoned decision on Fenix’s application, a copy of which is 
annexed to this Schedule and which is available at 
http://www.bailii.org/uk/cases/UKFTT/TC/2020/TC07971V.html 
2 Paragraphs 62 and 63 
conditions for implementation. This discrepancy is due to the very differen t natu re and  s cope o f the 
powers conferred on the Commission by the two provisions….   
 
The Commission believes that in order to determine whether a measure ‘supplements’ the basic 
instrument, the legislator should assess whether the future measure specifically adds new non-essent ial 
rules which change the framework of the legislative act, leaving a margin of discretion to the 
Commission. If it does, the measure could be deemed to ‘supplement’ the basic instrument. Conversely , 
measures intended only to give effect to the existing rules of the basic instrument should not be deemed 
to be supplementary measures.”3 
40. That makes it clear that delegated acts permitted under Article 290 TFEU change the 
legal framework and there is a margin of discretion but implementing acts under 
Article 291 TFEU do not change the legal framework. That accords with the 
Advocate General’s Opinion in CPC (see paragraph 37 above).  
41. The Commission’s Proposal for Article 9a stated that it was “…a purely technical 
measure… merely setting out the application of provisions already adopted…” and 
for that reason no impact assessment was completed.4  The original version of Article 
9a set out in the Proposal did introduce a presumption, however, that presumption 
applied “…unless, in relation to the final consumer, the service provider is explicitly 
indicated as the supplier”.5 That is consistent with the explanation in the Proposal that 
the presumption would apply “unless stated otherwise”.6  
 
42. The text of Article 9a, as enacted, is radically different and far more extensive than 
the text of the proposal. Article 28 refers to a taxpayer acting in his own name but as 
the Value Added Tax Committee Working Paper No. 885 makes explicit: the 
introduction of the presumption in Article 9a meant that the presumption should as a 
rule “...be valid for all taxable persons…”.7 
  
43. The 2016 Deloitte Report, on which the Commission relied for the 2016 Commission 
Proposal to amend the VAT Directive8 makes it clear that “The objective of article 9a to 
shift the liability for VAT to the intermediary appears to be desirable…there is a need for further 
clarification and a common and binding interpretation by Member States”.9  
                                                             
3 Communication from the Commission to the European Parliament and the Council on the Implementation o f 
Article 290 of the Treaty on the Functioning of the European Union, COM(2009) 673 final, Brussels 9 
December 2009, pages 3 & 4, (available here: 
 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0673:FIN:EN:PDF)  
4 Proposal for a Council Regulation amending Implementing Regulation (EU) No 282/2011 as regards the place 
of supply of services, COM(2012) 763 final, p3 (available here: 
 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52012PC0763&from=EN ) 
5 Ibid. p12 
6 Ibid. p5 
7 European Commission, Value Added Tax Committee Working Paper No. 885, Brussels, 9 October 2015, p.4/5 
(available here: 
 https://circabc.europa.eu/sd/a/ab683366-67b5-4fee-b0a8-9c3eab0e713d/885%20-%20VAT%202015%20-
%20Harmonised%20application%20of%20the%20presumption.pdf ) 
8 8 European Commission, Proposal for a Council Directive amending Directive 2006/112/EC and Directive 
2009/132/EC as regards certain value added tax obligations for supplies of services and distance sales of goods, 
COM(2016) 757 final, 1 December 2016, (available here: 
 https://ec.europa.eu/taxation_customs/sites/taxation/files/com_2016_757_en.pdf ) 
 
9 European Commission, VAT Aspects of cross-border e-commerce – Options for modernisation, Final Report – 
Lot 3, Deloitte, November 2016, p.203-204 (available here: 
 https://ec.europa.eu/taxation_customs/sites/taxation/files/vat_aspects_cross-border_e-
commerce_final_report_lot3.pdf ) 
44. There is a good argument that shifting liability is not merely a technical measure. It was 
also a change to the status quo which suggests that it is strongly arguable that it was 
amendment rather than simple clarification 
45. Furthermore, although, the 2016 Commission Proposal did not ultimately lead to an 
amendment of Article 28, as proposed, nevertheless during the legislative 
consultation, the Committee on Economic and Monetary affairs of the European 
Parliament reported on the Proposal on 16 October 201710: 
 “The rapporteur welcomes the amendment of article 28 proposed by the Commission which provides that 
online platforms are held liable for the collection of VAT in supplies of services …”.11 (emphasis 
added) 
46. Although it is not known why the 2016 Commission Proposal was not implemented 
the very fact that the Proposal reached the stage that it did and that the rapporteur 
agreed that the amendment was necessary supports the argument that there was doubt 
about the validity of Article 9a. 
 
47. Lastly, in Case C-464/10 État Belge v Pierre Henfling, 14 July 2011, 
ECLI:EU:C:2011:489, (“Henfling”) the Court of Justice stated that Article 6(4) of the 
Sixth Directive, the predecessor provision for Article 28:  
 
“…creates the legal fiction of two identical supplies of services provided consecutively. Under that 
fiction, the operator, who takes part in the supply of services and who constitutes the commission agent, 
is considered to have, firstly, received the services in question from the operator on behalf o f whom it s  
acts, who constitutes the principal, before providing, secondly, those services to  the clien t h ims elf. It  
follows that, as regards the legal relationship between the principal and the commission agent, their 
respective roles of service provider and payer are notionally inversed for the purpose of VAT.”12 
 
48. The Court went on to state that: 
 
“As regards the activity of the “buralistes” at issue in the main proceedings, it must be noted that 
although the condition that the taxable person must act in his own name bu t on  behalf o f ano ther, in  
Article 6(4) of the Sixth Directive, must be interpreted on the basis of the contractual relationship at 
issue, as follows from paragraph 40 of this judgment, the proper working of the common VAT s ystem 
established by that directive none the less requires the referring court to check  s peci fical ly s o as  to 
establish whether, in the light of all the facts in the case, those “buralistes” were in fact acting, when  
collecting bets, in their own name.”.13 (emphasis added) 
 
49. The presumption in Article 9a removes the requirement to look at the economic and 
commercial realities with all that that entails. 
 
50. It is very strongly arguable that: 
the introduction of the presumption in Article 9a is not a technical measure, it is a 
radical change; and  
the legal framework was changed, and significantly so, by the introduction of the 
presumption in the terms used in the final paragraph of Article 9a. By any standard 
that would be a manifest error in an implementing regulation. 
                                                             
10 A8-0307/2017 
11 Page 15/18 
12 Paragraph 35 
13 Paragraph 42 
H. THE QUESTION REFERRED 
 
51. The First-tier Tribunal accordingly refers the following question to the Court of Justice 
of the European Union for a preliminary ruling under Article 86(2) of the Withdrawal 
Agreement and Article 267 of the Treaty on the Functioning of the European Union: 
 
1. 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?” 
15 December 2020 
 
 
 
 
 
ANNEXE 
 
 
The Annexe to the Schedule contains the following: 
The Decision of the First-tier Tribunal (Tax Chamber) 2020 UKFTT 0499 (TC), released on  
15 December 2020: http://www.bailii.org/uk/cases/UKFTT/TC/2020/TC07971V.html