Opinion of the Advocate General — ECLI:EU:C:2025:266
Date: 2025-04-10
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-101/24 – 1 
Case C-101/24 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date of lodged: 
7 February 2024 
Referring court: 
Bundesfinanzhof (Federal Finance Court, Germany) 
Date of the order for reference: 
23 August 2023 
Defendant and appellant in the appeal on a point of law: 
Finanzamt Hamburg-Altona (Hamburg-Altona Tax Office) 
Applicant and respondent in the appeal on a point of law: 
XYRALITY GmbH 
  
Subject matter of the case in the main proceedings 
Directive 2006/112 – Distribution of electronic services (game applications for 
mobile devices) via a marketplace for applications – Place of supply of services in 
the period before 1 January 2015 – Place of establishment of the marketplace for 
applications or place of establishment of the developer of the applications 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Under circumstances such as those in the main proceedings, in which a 
German taxable person (developer) supplied, before 1 January 2015, a 
service by electronic means to non-taxable persons (end customers) 
established within the territory of the European Union, via a marketplace for 
applications operated by an Irish taxable person, is Article 28 of Council 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-101/24 
 
2  
Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax to be applied, with the result that the Irish taxable person is 
treated as if it had received those services from the developer and supplied 
them to the end customers, because the marketplace for applications did not 
name the developer as the supplier of the service and show German VAT 
until it did so in the order confirmations issued to the end customers? 
2. If the first question referred is answered in the affirmative: Is the place of 
supply of the fictitious service supplied by the developer to the marketplace 
for applications under Article 28 of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax in Ireland, by 
virtue of Article 44 of Council Directive 2006/112/EC of 28 November 2006 
on the common system of value added tax, or in the Federal Republic of 
Germany, by virtue of Article 45 of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax? 
3. If, by virtue of the answers to the first and second questions referred for a 
preliminary ruling, the developer has not supplied any services in the 
Federal Republic of Germany: Is the developer subject to a tax liability for 
German VAT under Article 203 of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax, on the 
ground that the marketplace for applications, acting in accordance with an 
agreement, named the developer as the supplier of the service and showed 
German VAT in the order confirmations it sent by email to the end 
customers, even though the end customers are not entitled to deduct input 
VAT? 
Provisions of European Union law cited 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, as amended by Council Directive 2008/8/EC of 12 February 
2008 amending Directive 2006/112 as regards the place of supply of services 
(Directive 2006/112), in particular Articles 28, 44, 45 and 203 of 
Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying 
down implementing measures for Directive 2006/112, as amended by Council 
Implementing Regulation (EU) No 1042/2013 of 7 October 2013 amending 
Implementing Regulation No 282/2011 as regards the place of supply of services 
(Implementing Regulation No 282/2011), in particular Article 9a. 
National legislation cited 
Umsatzsteuergesetz (German Law on Turnover Tax; ‘UStG’), in particular 
Paragraphs 3(11) and 3a(1) and 2. 
XYRALITY 
 
3 
Brief summary of the facts and procedure 
1 The parties are in dispute about the VAT taxation of so-called ‘in-application 
purchases’ effected during the years from 2012 to 2014 (the years at issue), in 
which Article 9a of Implementing Regulation No 282/2011 had not yet entered 
into force. 
2 The applicant and defendant in the appeal (‘ the applicant’), a taxable person 
established in the Federal Republic of Germany, develops and distributes game 
applications for mobile devices. For distribution purposes, it uses, inter alia, an 
internet-based digital distribution platform for software (referred to as a 
‘marketplace for applications’). The marketplace for applications was operated by 
Ireland-based X until 31 December 2014. During the years at issue, end customers 
who used mobile devices with a specific operating system were able to download 
the applicant’s game applications solely via the marketplace for applications. 
3 During that period X entered into standardised agreements, governing the 
distribution of products via the marketplace for applications, with developers such 
as the applicant. Those agreements stipulated that the sellers of the products 
offered through the marketplace for applications were their developers. X was to 
display the products on behalf of the developers and make them available for the 
end customers to download and purchase. X was to receive a commission in return 
for providing those services. The payment transaction was to be processed via the 
marketplace for applications. 
4 During the years at issue, various downloadable game applications were available 
to the end customers in the marketplace for applications. The vast majority of 
those games did not originate from X but rather from the designers themselves. 
When presented in the marketplace for applications, the name of the developer 
was also displayed for each game. During the years at issue, the applicant 
appeared in the marketplace for applications and its company name, legal form 
and address were displayed. 
5 Although the game applications developed by the applicant could be downloaded 
free of charge from the marketplace for applications, it was necessary for the end 
customer to purchase improvements or other benefits (in-application purchases) in 
order to advance in the game or obtain other benefits. The end customers were 
able to select the desired improvements or benefits in the applicant’s game 
application and have them activated for a fee. 
6 The in-application purchases were processed via the marketplace for applications 
by means of a method of payment saved there by the end customer. The applicant 
was not named as the supplier in the course of the purchase transaction. Only X’s 
logo and certain links were visible. Upon completion of the purchase process, the 
end customer received an order confirmation from X by email. That email 
contained the logo of the marketplace for applications and a statement that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-101/24 
 
4  
purchase was transacted with the relevant developer (in this case, the applicant) in 
the marketplace for applications. 
7 The applicant initially regarded itself as the supplier to the end customers. It 
therefore declared German VAT for end customers based in the European Union, 
on the ground that the place of supply was, pursuant to Article 3a(1) of the UStG 
and Article 45 of Directive 2006/112, its place of establishment, and paid the 
German VAT to the defendant and to the appellant in the appeal on a point of law, 
namely the Finanzamt (Tax Office) (‘the FA’). 
8 On 29 January 2016, the applicant submitted corrected VAT returns for the years 
at issue. It was now of the opinion that this was a case in which services were 
commissioned (Paragraph 3(11) of the UStG, Article 28 of Directive 2006/112). It 
had provided its services to X, and X had provided the services to the end 
customers. Under Paragraph 3a(2) of the UStG and Article 44 of Directive 
2006/112, the place of supply of its services to X was in Ireland. 
9 The FA took the view that X was merely to be regarded as an intermediary. It is 
true that the respective purchase process took place via the marketplace for 
applications. However, the end customers were made aware of the terms of use at 
each individual step of the in-application purchase. X had thus clearly informed 
the end customers in the course of each purchase that the transactions were being 
executed on behalf a third party and that X was merely collecting the amount 
owed. The FA therefore issued VAT assessments in which the corrections made 
by the applicant had not been not taken into account. 
10 The Finanzgericht (Finance Court) (‘the FG’) upheld the action brought by the 
applicant. It considered that the appellant’s transactions were not taxable in 
Germany because the recipient of its services was X. According to 
Paragraph 3a(2) of the UStG and Article 44 of Directive 2006/112, the place of 
supply was in Ireland. 
11 The FA’s appeal on a point of law (Revision) to the referring court is directed 
against the judgment of the Finanzgericht (Fiscal Court). 
Brief summary of the basis for the reference 
On the first question referred 
12 According to the case-law of the Court of Justice of the European Union (‘the 
Court’), the relevant contractual terms constitute a factor to be taken into 
consideration when the supplier and the recipient in a ‘supply of services’ 
transaction have to be identified, unless the contractual terms do not wholly reflect 
the economic and commercial reality of the transactions (see judgments in Newey 
of 20 June 2013 – C-653/11, EU:C:2013:409, paragraph 43 et seq.; Budimex of 
2 May 2019 – C-224/18, EU:C:2019:347, paragraph 28 et seq.; see also the 
judgment in Suzlon Wind Energy Portugal of 24 February 2022 – C-605/20, 
XYRALITY 
 
5 
EU:C:2022:116, paragraph 58). Similarly, the question as to whether the taxable 
person acted in its own name but on behalf of another must, in particular, be 
examined on the basis of the contractual relations between the parties (see 
judgment in Henfling and Others of 14 July 2011 – C-464/10, EU:C:2011:489, 
paragraph 42; Fenix International of 28 February 2023 – C-695/20, 
EU:C:2023:127, paragraph 72 et seq.). 
13 If the referring court were to uphold the judgement of the FG, it would be 
departing from the legal classification assigned to the transactions by X and the 
Irish tax authorities. That would result in the (potentially final) non-taxation of the 
transactions. 
14 It is true that the tax authorities of a Member State are not precluded from being 
able, unilaterally, to subject transactions to VAT treatment different from that 
under which they have already been taxed in another Member State (see judgment 
in KrakVet Marek Batko of 18 June 2020 – C-276/18, EU:C:2020:485, 
paragraph 53). However, when interpreting the relevant provisions of EU and 
national law, courts of a Member State that find that the same transaction has been 
the object of a different tax treatment for the purposes of VAT in another Member 
State have an obligation – if there is no judicial remedy under national law against 
their decisions – to refer a request for a preliminary ruling to the Court (judgment 
in Marcandi of 5 July 2018 – C-544/16, EU:C:2018:540, operative part no. 3 and 
paragraph 63 et seqq.; KrakVet Marek Batko of 18 June 2020 – C-276/18, 
EU:C:2020:485, paragraph 51). 
15 According to the FA’s submissions, such a situation arises in the present case. The 
FG took the view that X had provided the services to the end customers and that 
the applicant had provided its services to X. On the other hand, as is apparent 
from the factual findings of the FG and the invoices issued to the end customers, 
X assumed that it had provided a service to the applicant and that the applicant 
had provided its service directly to the end customers. This means that for the 
period prior to 1 January 2015, there is a risk that transactions processed via X’s 
marketplace for applications will not be taxed. They would not be taxed in Ireland 
because Ireland considers there to be a right of taxation in the developer’s county 
of establishment (here: Germany). In Germany, they would not be taxed if the 
Chamber were to uphold the view of the FG, which found that Ireland had a right 
of taxation. 
16 The order confirmations issued by X, which included a statement explaining that 
the purchase was transacted with the respective developer (in this case, the 
applicant) in the marketplace for applications and which showed German VAT, 
militate in favour of a finding that it should be assumed, in line with the view 
taken by Ireland and X, that the services were supplied to the end customers by 
the applicant (and that a situation contemplated in Article 3(11) of the UStG and 
Article 28 of Directive 2006/112 is not present) (on the significance of the invoice 
in this context, see judgment in Fenix International of 28 February 2023 – 
C-695/20, EU:C:2023:127, paragraphs 75 to 77). That was also the initial 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-101/24 
 
6  
assumption made by the applicant. From the legislative history of Article 9a of 
Implementing Regulation No 282/2011 and the objective pursued by the new 
legislation (see, in that regard, the judgment in Fenix International of 28 February 
2023 – C-695/20, EU:C:2023:127, paragraph 15 et seqq., and paragraph 52 et 
seqq.) it could also be concluded that the VAT classification applied by the 
marketplace for applications, and contractually agreed with the developers, should 
remain applicable in respect of periods prior to its entry into force. 
17 However, the fact that Article 9a of Implementing Regulation No 282/2011 gives 
specific expression to the normative content of Article 28 of Directive 2006/112, 
as interpreted by the Court (see judgment in Fenix International of 28 February 
2023 – C-695/20, EU:C:2023:127, paragraph 86), suggests that the principles laid 
down therein could apply also to the applicant’s transactions that were effected 
during the years at issue (see, in general, judgments in Welmory of 16 October 
2014 – C-605/12, EU:C:2014:2298, paragraph 45 et seq.; and Leichenich of 
15 November 2012 – C-532/11, EU:C:2012:720, paragraph 32). The non-binding 
guidelines resulting from the 93rd meeting of the VAT Committee of 1 July 2011 
(Document C – taxud.c.1(2012) 1410604-1410604–709) could lend further 
support to that proposition. The FG found that the actions at the time of 
conclusion of the contract militated in favour of a finding that X had been acting 
in its own name, that the content of the order confirmations was also insufficiently 
clear and, furthermore, that the order confirmations were sent only after the 
transaction had been completed. In the light of the 2011 Guidelines, it may 
therefore be possible to find that X did not name the developers as the providers 
of the electronic services in a sufficiently clear manner at the time of concluding 
the contract, and that it was therefore X who had provided the services to the end 
customers. 
The second question referred 
18 By its second question, the referring court seeks clarification of the legal 
consequences arising from Article 28 of Directive 2006/112. 
19 If the first question referred is answered to the effect that X is the service provider, 
this constitutes a case in which services are commissioned under both national law 
and EU law. The relevant German provision (Paragraph 3(11) of the UStG) is 
based on Article 28 of Directive 2006/112. That provision provides that where 
taxable persons acting in their own name but on behalf of another person take part 
in a supply of services, they are to be deemed to have received and supplied those 
services themselves. They are therefore regarded as the taxable persons vis-à-vis 
the end customer (see judgment in Valstybine mokesčių inspekcija of 
16 September 2020 – C-312/19, EU:C:2020:711, paragraph 49 and 52). 
20 Those provisions apply to all categories of services (see judgment in Fenix 
International of 28 February 2023 – C-695/20, EU:C:2023:127, paragraph 54). 
They require that there be a mandate under which the commission agent acts, on 
behalf of the principal, in the provision of services, which entails the conclusion, 
XYRALITY 
 
7 
between the commission agent and the principal, of an agreement concerning the 
granting of the mandate concerned (judgment in Gmina L. of 30 March 2023 – 
C-616/21, EU:C:2023:280, paragraph 32). That mandate was granted under the 
agreements entered into between X and the applicant. 
21 The legal consequence of applying Paragraph 3(11) of the UStG and Article 28 of 
Directive 2006/112 is the legal fiction of two identical supplies of services 
provided consecutively (see judgment in Commission v Luxembourg of 4 May 
2017 – C-274/15, EU:C:2017:333, paragraph 86). 
22 The operator, who constitutes the commission agent, is considered to have, firstly, 
received the services in question from the operator on behalf of whom it acts, who 
constitutes the principal, before providing, secondly, those services to the client 
himself (judgment in UCMR – ADA of 21 January 2021 – C-501/19, 
EU:C:2021:50, paragraph 43; Fenix International of 28 February 2023 – 
C-695/20, EU:C:2023:127, paragraph 54); it is deemed to be the supplier of the 
services (judgment in Fenix International of 28 February 2023 – C-695/20, 
EU:C:2023:127, paragraph 55). 
23 If the supply of a service in which an operator takes part is subject to VAT, the 
legal relationship between that operator and the operator on behalf of whom it acts 
is also subject to VAT (see judgment in Commission v Luxembourg of 4 May 
2017 – C-274/15, EU:C:2017:333, paragraph 87). 
24 If the service in which the commission agent takes part is exempt from VAT, that 
exemption applies likewise to the legal relationship between the principal and the 
commission agent (see judgment in Henfling and Others of 14 July 2011 – 
C-464/10, EU:C:2011:489, paragraph 36). 
25 However, the commission agent should not be treated completely equally to an 
authorised representative. The principle of neutrality is not violated in view of the 
fact that EU law lays down different rules for services supplied by a commission 
agent acting in his own name but on behalf of another, and services supplied by an 
agent acting in the name of and on behalf of another (see judgment in Henfling 
and Others of 14 July 2011 – C-464/10, EU:C:2011:489, paragraph 38). 
26 The extent of that fiction is disputed. 
27 Firstly, it is conceivable that the legal relationship between the commission agent 
and the principal on whose behalf the commission agent is acting, should be 
treated in exactly the same way for VAT purposes as the service in which the 
commission agent takes part. The fiction of Article 28 of Directive 2006/112 
would be extended to the entire service, that is to say that both services (that 
supplied by the principal to the commission agent and that supplied by the 
commission agent to the end customer) would be treated in the same way as if the 
principal provided the service directly to the end customer. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-101/24 
 
8  
28 The fact that the subject of the provision is a legal fiction and an additional 
fictitious transaction would not, from that perspective, alter the VAT result could 
lend support to that proposition. Direct and indirect supplies of services would be 
treated equally. The taxation of a service would not depend on the distribution 
channel. Not only would the tax revenue continue to accrue to the Member State 
to which it would accrue under the provisions of EU law in the case of a direct 
supply of services, but the amount would also be the same as for a direct supply of 
services. At the same time, possible circumventions or abuses would be prevented. 
29 In the present case, if the services were being provided directly, the place of 
supply of the applicant’s services would be in Germany. A tax exemption is not 
applicable. The standard VAT rate applies. According to that point of view, the 
same would apply to the applicant’s fictitious supply of the service to X. 
30 Secondly, it is conceivable that the place of supply of the service in which the 
commission agent takes part would, at least, also determine the place of supply of 
the service between the principal and the commission agent. The fiction would 
extend at least to the place of supply. That could be justified, for example, on the 
basis that the place of supply of the service provided by the applicant to X must 
also be determined in accordance with Article 45 of Directive 2006/112, even 
though X is a taxable person, because the services in which X takes part are 
services supplied electronically to non-taxable persons to whom Article 45 of 
Directive 2006/112 applies. 
31 The place of the applicant’s fictitious supply of the service to X would also be in 
Germany if that viewpoint were to be adopted. 
32 Lastly, it is conceivable that the place of supply of the service in which the 
commission agent takes part, and the place of supply of the service between the 
principal and the commission agent should be determined separately, in 
accordance with Articles 44 and 45 of Directive 2006/112. Paragraph 38 of the 
judgment in Henfling and Others of 14 July 2011 – C-464/10, EU:C:2011:489, 
and the Opinion of Advocate General Jääskinen in Lebara of 8 December 2011 – 
C-520/10, EU:C:2011:818, paragraphs 50 and 71, may lend support to that 
proposition. A fictitious supply of services by the principal to the commission 
agent would mean that the place of supply would always be shifted, by application 
of Articles 44 and 45 of Directive 2006/112, to the place where the commission 
agent is established, unless a special rule on the place of supply applies. As a 
result of that fiction, the business supply service provided by the commission 
agent to the principal (which, by itself, is provided at the place where the principal 
is established, by virtue of Article 44 of Directive 2006/112) would, 
paradoxically, have the effect of shifting the place of supply of all services away 
from the principal. The referring court has doubts as to whether that corresponds 
to the commercial and economic reality of the commission for services. 
33 In the case at issue, that viewpoint would mean that, under Article 44 of Directive 
2006/112, the place of supply of the fictitious service provided by the applicant to 
XYRALITY 
 
9 
X was in Ireland, as X is a taxable person who received the fictitious supply of 
services from the applicant for the purposes of its business. By virtue of Article 45 
of Directive 2006/112, the place of supply of the services rendered by X to the end 
customers would also be in Ireland. 
The third question referred 
34 The third question referred for a preliminary ruling seeks to ascertain the effects 
of the fact that X, with the consent of the applicant, sent order confirmations by 
email, in which it was stated that purchases had been made from the applicant in 
the marketplace for applications and in which the gross price and the German 
VAT included therein were specified. 
35 The referring court has considered whether the applicant was liable under 
Article 203 of Directive 2006/112 for the VAT listed in its name and with its 
consent, on the ground that the order confirmations that X sent by email could 
constitute invoices for the purposes of that article. X’s authorisation to issue 
invoices on behalf of the applicant is based on the agreements concluded between 
them. X was to receive only a commission. The end customers had also consented 
to electronic transmission of the order confirmations. 
36 However, a tax liability on the part of the applicant under Article 203 of Directive 
2006/112 and based on the order confirmations issued by X on behalf of the 
applicant may be precluded by the Court’s judgment of 8 December 2022 in 
Finanzamt Österreich (VAT wrongly invoiced to end customers) – C-378/21, 
EU:C:2022:968. 
37 The transactions at issue in the present case are transactions which were not 
executed in favour of taxable persons for the purposes of their businesses. The 
judgment of 8 December 2022 in Finanzamt Österreich (VAT wrongly invoiced 
to end customers) – C-378/21, EU:C:2022:968, could be construed as meaning 
that there is thus no tax liability under Article 203 of Directive 2006/112. The 
Court had previously clarified that the issue was the risk of loss of tax revenue 
which the right to deduct input tax might entail (see judgments in Stadeco of 
18 June 2009 – C-566/07, EU:C:2009:380, paragraph 28; Stroy trans of 
31 January 2013 – C-642/11, EU:C:2013:54, paragraph 32; LVK – 56 of 
31 January 2013 – C-643/11, EU:C:2013:55, paragraph 36; and Rusedespred of 
11 April 2013 – C-138/12, EU:C:2013:233, paragraph 24; EN.SA. of 8 May 
2019 – C-712/17, EU:C:2019:374, paragraph 32; P. (fuel cards) of 18 March 
2021 – C-48/20, EU:C:2021:215, paragraph 27; see also the judgment in Terracult 
of 2 July 2020 – C-835/18, EU:C:2020:520, paragraph 29 and the case-law cited 
therein). 
38 Although the recipients of the services are not taxable persons, there could be a 
risk of loss of tax revenue in the present case, which Article 203 of Directive 
2006/112 seeks to avoid. The requirement for an invoice also serves to facilitate 
monitoring of payment of the tax debt, to ensure correct collection of the tax and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-101/24 
 
10  
to avoid fraud (see judgments in Langhorst of 17 September 1997 – C-141/96, 
EU:C:1997:417, paragraphs 17 and 20; Barlis 06 – Investimentos Imobiliarios e 
Turisticos of 15 September 2016 – C-516/14, EU:C:2016:690, paragraph 27; 
Geissel v Butin of 15 November 2017 – C-374/16 and C-375/16, EU:C:2017:867, 
paragraph 41, as well as recital 46 of Directive 2006/112). In any event, if several 
taxable persons are involved in the supply of the service, both the authorised 
allocation for accounting purposes by the principal (applicant) of a service to the 
(from the principal’s point of view) wrong supplier and the authorised allocation 
for accounting purposes by the principal of a service to the (from the principal’s 
point of view) wrong tax creditor would jeopardise the EU’s tax revenues, even in 
cases where the customer is not entitled to deduct input VAT. There is a risk that 
the transactions will not ultimately be taxed because Ireland assumes that 
Germany has a right of taxation, which is consistent with the order confirmations, 
whereas the FG took the view that Ireland has a right to tax X, which contradicts 
them. 
39 In the present case, that situation was brought about by the applicant. At first, it 
authorised the marketplace for applications to name it as the supplier in the order 
confirmations, which is permissible in itself (Article 220(1) of Directive 
2006/112), but then subsequently put forward the contrary view in its submissions 
to the FA, that is to say that the operator of the marketplace for applications was 
the supplier (and that it was not liable for the VAT shown in its name). It thus 
behaving in a contradictory manner. If it considers that X is the supplier of the 
service, it cannot authorise X to name it as the supplier. The applicant’s 
contradictory behaviour could justify a finding that it is liable for VAT under 
Article 203 of Directive 2006/112. 
40 The risk of loss of tax revenue inherent in the order confirmations can be 
eliminated. That could be achieved if, for example, the applicant were to furnish 
proof that the marketplace for applications has fulfilled its tax obligations arising 
in connection with the transactions which are, in the applicant’s opinion, 
attributable to it. A subsequent elimination of the tax would then depend on the 
issuance of corrected order confirmations to the end customers, in which the 
marketplace for applications (in this case: X) names itself as the supplier of the 
services and shows Irish VAT (paying it to the Irish tax authorities).