62024TC0643
OPINION OF ADVOCATE GENERAL
MARTÍN Y PÉREZ DE NANCLARES
delivered on 3 December 2025 (
1
)
Case T‑643/24
Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (CREDIDAM)
v
Cristian General Serv SRL
(Request for a preliminary ruling from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania))
(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Article 2(1)(c), Article 24(1) and Article 25 of Directive 2006/112/EC – Concept of ‘supply of services for consideration’ – Collective management of copyright – Fee for the communication to the public of protected musical works – Surcharge applied in the absence of a licence – Article 73 of Directive 2006/112 – Taxable amount – Concept of ‘consideration’)
I. Introduction
1.
The just selling price is established by a common estimation of the people, as Francisco de Vitoria used to teach in Salamanca. (
2
) I do not rule out that that economic philosophy may have influenced the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) when it decided to refer the matter to the Court in order to determine, ultimately, the taxable amount for value added tax (VAT) in the presence of a rule leading to a tripling of the price of a supply.
2.
More specifically, the present reference raises two questions relating to the interpretation of Directive 2006/112/EC, (
3
) which fall within already well-established case-law.
3.
First, it is necessary to ascertain whether there is a ‘supply of services for consideration’, that is to say, in essence, a reciprocal exchange of services, where a user, who has carried out a communication to the public of protected musical works without having previously acquired a licence, is obliged to pay, ex lege, a fee for that communication. My answer will determine whether the considerations set out in the judgment of 21 January 2021, UCMR – ADA (C‑501/19, ‘the judgment in UCMR’, EU:C:2021:50), from which it follows that the granting of licences authorising such performances in return for the payment of a fee is indeed a transaction subject to VAT, apply mutatis mutandis in the absence of a licence.
4.
Secondly, the present case provides an opportunity to clarify the concept of ‘consideration’ in a case where part of the remuneration has punitive or compensatory features. The user, who has failed to acquire a licence, is required to pay three times the basic amount of the fee. Assuming that there is indeed a ‘supply of services for consideration’, it will be necessary to determine whether VAT is payable on the increased amount or only on the basic amount of that fee. In that regard, I would suggest examining the criteria for establishing whether the link between the surcharge and the service provided is sufficiently direct to conclude that there is a reciprocal relationship.
II. Legal framework
A.
European Union law
5.
Under Article 2(1)(c) of Directive 2006/112, ‘the supply of services for consideration within the territory of a Member State by a taxable person acting as such’ is subject to VAT.
6.
In accordance with Article 24(1) of that directive, ‘“supply of services” shall mean any transaction which does not constitute a supply of goods’.
7.
Article 25 of that directive provides:
‘A supply of services may consist, inter alia, in one of the following transactions:
(a)
the assignment of intangible property …;
(b)
the obligation … to tolerate an act or situation;
(c)
the performance of services … in pursuance of the law.’
8.
Article 73 of that directive provides that, ‘in respect of the supply of … 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 …’.
B.
Romanian law
9.
Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code) of 8 September 2015 (Monitorul Oficial al României, Part I, No 688, of 10 September 2015), in the version applicable to the dispute in the main proceedings, contains, in Articles 268 and 271 thereof, provisions transposing Article 2(1)(c) of Directive 2006/112 and Articles 24 and 25 of that directive.
10.
Under Article 286(4)(b) of that law, ‘the taxable amount shall not include … penalties and any other amounts claimed for breach … of contractual obligations, if charged in excess of the negotiated prices and/or tariffs’.
11.
Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights; ‘Law No 8/1996’) of 14 March 1996 (Monitorul Oficial al României, Part I, No 60, of 26 March 1996), in the version applicable to the dispute in the main proceedings, lays down, in Articles 98 and 121, certain rights and obligations of the holders of copyright or related rights. It follows, in particular, that those holders have an exclusive right to prohibit the broadcasting or communication to the public of their work, unless it has already been fixed or broadcast.
12.
Those provisions also provide for a fee for the use of protected works, which is collected by a collective management organisation for copyright, and lay down the detailed rules for establishing the methodology for determining the amount of that remuneration.
13.
In the present case, it is Decision No 120/2016 of the Oficiul Român pentru Drepturile de Autor (Romanian Copyright Office), published in the Monitorul Oficial al României, which lays down the applicable methodology. It follows that the amount of the fee takes into account 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 and the type of space.
14.
That amount must be paid to the collective management organisation for copyright concerned, on the basis of a non-exclusive licence for the use of the protected works. In accordance with point 3.12 of that methodology, if such use is not covered by a licence, the amount due is tripled.
III. Facts of the dispute and request for a preliminary ruling
15.
The dispute in the main proceedings is between Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (Romanian Centre for the Administration of Performing Artists’ Rights; ‘CREDIDAM’), which is a collective management organisation for copyright, and Cristian General Serv SRL, a company established in Romania, concerning the fee payable by the latter for the broadcasting of protected musical works.
16.
That company broadcast such works in an accommodation unit without CREDIDAM having previously granted it the requisite licence. Under Romanian legislation, in that case, the fee should be tripled.
17.
The referring court, hearing the case on appeal, states that CREDIDAM requested that VAT be included in the sums claimed, whereas, according to the defendant in the main proceedings, that tax is not payable. (
4
)
18.
In the light of the Court of Justice’s case-law, (
5
) the referring court considers that it is necessary to ascertain whether the holders of copyright carry out a transaction which must be classified as a ‘supply of services for consideration’ subject to VAT where a person carries out a communication to the public of protected works without having acquired the necessary licence from CREDIDAM. If so, in order to calculate the VAT due, it will be necessary to determine whether the consideration for that supply comprises only the basic amount of the fee or whether the VAT must be calculated on the basis of the tripled amount that would be due in the absence of a licence.
19.
In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling under the procedure laid down in Article 267 TFEU:
‘(1)
On a proper construction of Article 2(1)(c), Article 24(1), and Article 25(a) of Directive [2006/112], 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?’
IV. Procedure before the Court of Justice and the General Court
20.
The present request for a preliminary ruling was lodged at the Registry of the Court of Justice on 22 November 2024. Pursuant to Article 50b of the Statute of the Court of Justice of the European Union, the request was referred to the General Court, which decided to rule without a hearing.
21.
CREDIDAM, the Romanian Government and the European Commission have submitted written observations.
V. Legal assessment
A.
Preliminary observations
22.
The particularity of the present case lies in the fact that the referring court’s questions relate to issues which are a direct extension of those dealt with in the judgment in UCMR. (
6
)
23.
The case that gave rise to that judgment – which was delivered following a reference for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) – concerns, in principle, the same national legislation as that at issue in the main proceedings, namely Law No 8/1996. In addition, the questions referred required the interpretation of the same provisions of Directive 2006/112, namely, inter alia, Article 2(1)(c) thereof, from which it follows, in essence, that the ‘supply of services for consideration’ must be subject to VAT.
24.
It is therefore in the light of that judgment that the questions referred in the present case must be examined.
25.
In that regard, it seems to me that the body of the request for a preliminary ruling makes it possible to refine its exact scope. First, the referring court asks whether, in the present case, the holders of copyright, represented by the collective management organisation, carried out a ‘supply of services’ and, if so, whether it should be considered that that supply was carried out ‘for consideration’, in particular in the light of the detailed rules laid down by the Romanian legislation for determining the fee payable by users. Secondly, if the answer is in the affirmative, the referring court asks the General Court to examine specifically the ‘consideration’ for that supply, in order to determine whether VAT must be calculated on the basis of the basic amount of the fee or three times that amount.
26.
Thus, I would propose that the General Court reformulate the questions referred as follows: the first seeks to ascertain whether Article 2(1)(c), Article 24(1) and Article 25(b) and (c) of Directive 2006/112 must be interpreted as meaning that the regulatory obligation to tolerate, in return for a fee, the communication of protected works to the public by a user, who has not previously obtained the licence required for that purpose, must be classified as a ‘supply of services for consideration’; and the second seeks to determine whether Article 2(1)(c) of Directive 2006/112, read in conjunction with Article 73 of that directive, must be interpreted as meaning that the remuneration, which is payable for the communication of protected works to the public, which consists of a basic fee and a surcharge applied where a licence has not been obtained prior to that communication, may be classified as ‘consideration’.
27.
For the purposes of this Opinion, I shall analyse, first, the existence of a supply of services and whether it is for consideration (B) and, secondly, the specific issue of the amount of that fee (C).
B.
The existence of a ‘supply of services for consideration’
28.
It follows from the judgment in UCMR that the authorisation, in return for the grant of a licence in exchange for a fee, of the communication to the public of protected works constitutes a ‘supply of services for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112. (
7
)
29.
However, the reasoning of that judgment does not include an independent examination of whether, in the light of the definition and the non-exhaustive examples set out in Articles 24 and 25 of Directive 2006/112, that activity must be classified as a ‘supply of services’. The Court of Justice focused on the interpretation of the words ‘for consideration’, examining the pecuniary obligations of users who performed protected works for a public audience.
30.
In particular, the judgment in UCMR recalls that a supply of services is made for consideration where, in the context of a legal relationship, the provider of the service receives remuneration that is the value actually given in return for the service supplied, which is the case if there is a direct link between that remuneration and that identifiable service. The Romanian legislation at issue in the case giving rise to that judgment satisfied those criteria, since it established a reciprocal relationship between the holders of copyright, represented by a collective management organisation for copyright, and the users of the protected works. The licences granted by that organisation pursuant to a legal obligation authorised the public performance of those works in return for the payment of remuneration. (
8
)
31.
The referring court asks whether the considerations set out in the judgment in UCMR can be transposed to the present case, in so far as the defendant in the main proceedings did not request a licence before communicating the protected works to the public.
32.
I propose to examine that question in two stages. I shall address, first, the interpretation of the concept of ‘supply of services’ (1), and then the criterion relating to that supply being for consideration (2).
1. The concept of ‘supply of services’
33.
As regards the question whether, in the present case, a ‘supply of services’ has been made, I note, subject to the verifications to be carried out by the referring court, that Law No 8/1996 provides, first, that, in the absence of a licence, the communication of protected works to the public must be tolerated by rightholders and, secondly, in return, the user is required to pay a fee of a certain amount. (
9
) According to the request for a preliminary ruling, the Romanian legislation thus establishes a correlation between the users’ right of communication and their obligation to pay in order to exercise that right.
34.
In my view, that legal obligation to tolerate an act, provided for by national law, can easily be equated with the mandatory granting of licences referred to in the judgment in UCMR. At the very least, it corresponds to two of the three transactions which Article 25 of Directive 2006/112 describes, for guidance, as being a supply of services. (
10
) Those are the transactions referred to in points (b) and (c) of that article, namely, respectively, the obligation to tolerate an act and the performance of services in pursuance of the law.
35.
More generally, the classification of an act, which allows the exercise of the right to communicate protected works to the public, as a supply of services is corroborated by the nature of VAT ‘as a general tax on consumption’, as it seeks ‘to tax the financial cost of obtaining a consumable good … that is to say a consumable benefit, whether that is a tangible good, as in the case of a supply, or a non-tangible benefit, as in the case of a service’. (
11
)
2. Whether the supply is for consideration
36.
I also consider that the supply of services which I have just identified is carried out for consideration. It is sufficient in that regard to note that the Romanian legislation establishes a direct link between the supply of that service and the payment of remuneration. That legislation thus establishes a legal relationship pursuant to which there is reciprocal performance. (
12
) The absence of a contractual relationship between the holders of copyright and the users is irrelevant in that regard. According to the case-law, the legal relationship between the provider of a service and the recipient may be of a public nature, established by law, as, moreover, is expressed in Article 25(c) of Directive 2006/112. The legal nature of that relationship is therefore without prejudice to the existence of a direct link between the supply of services made and the consideration received. (
13
)
37.
In the light of the case-law, it is, in essence, for the same reasons that the referring court’s questions concerning the regulatory arrangements for determining, on the basis of criteria established in advance, the amount of the remuneration due do not appear to me to be decisive. (
14
)
38.
I would add that the case-law confirms that the possibly unlawful nature of the communication to the public in the present case is also not a decisive factor in assessing the existence of a supply of services for consideration. The principle of fiscal neutrality precludes any general distinction between lawful and unlawful transactions, which means that the criterion relating to the existence of a legal relationship must be given a broad meaning which includes statutory relationships. (
15
)
39.
In the light of the foregoing considerations, I consider that Article 2(1)(c), Article 24(1) and Article 25(b) and (c) of Directive 2006/112 must be interpreted as meaning that the regulatory obligation to tolerate, in return for a fee, the communication of protected works to the public by a user, who has not previously obtained the licence required for that purpose, must be classified as a ‘supply of services for consideration’.
C.
The existence of a ‘direct link’ between the service and the surcharge applied to the basic amount of the fee
40.
I shall now examine whether the ‘consideration’ for the service at issue in the main proceedings includes only the basic amount of the fee payable by the users of protected works or whether it must be held that VAT must be determined on the basis of the increased amount of that fee.
41.
Before addressing that issue, I would point out that, in the light of points 36 to 38 of this Opinion, it seems clear to me that the basic amount of the fee must be classified as ‘consideration’. It therefore remains to be determined whether that concept can also be applied to the sum which exceeds that amount and which would be payable, in addition, where a user has not acquired a licence prior to communicating the protected works to the public. Consequently, I shall focus my examination on the classification of that surcharge for VAT purposes.
42.
In my view, the decisive factor for that classification is the requirement, mentioned in point 30 of this Opinion, of a ‘direct link’ between the service supplied and the consideration received. The delineation of that requirement is the subject of case-law which is both abundant and based on the individual case. (
16
) I consider, nevertheless, that it is possible to draw from it a number of more general criteria which will enable the General Court, or rather the referring court, (
17
) to determine whether, in the present case, the surcharge is sufficiently directly linked to the supply of services in question.
43.
In the light of those considerations, I shall analyse the relevance of the criteria relating, respectively, to the effective supply of a service (1), the amount of the fee charged (2) and the cause and purpose of the payments (3).
1. The effective supply of a service
44.
I consider that the relevant case-law in this area makes it possible to distinguish two scenarios.
45.
First, there is scenario where payments are made independently of the supply of a service, with the result that there is no taxable transaction. By way of example, this is the case where compensation is paid to compensate for a delay in payment. (
18
) The same applies to agricultural aid paid for reducing production, as examined in the judgments of 29 February 1996, Mohr (C‑215/94, EU:C:1996:72, paragraphs 21 and 22), and of 18 December 1997, Landboden-Agrardienste (C‑384/95, EU:C:1997:627, paragraphs 23 and 24), in the absence of a consumable benefit. I am inclined to take the view that the levying of a spa tax by a municipality could also fall within that category, provided that such a tax does not finance an identifiable service but contributes generally to the functioning of the municipality. (
19
)
46.
Secondly, where, as in the present case, a consumable benefit (
20
) has actually been provided to a person, (
21
) it is, as a general rule, quite clear that the payments made, prima facie, in return for that benefit must be classified as ‘consideration’. However, there are many situations in which that determination is not at all obvious. The uncertainties surrounding the identification of a ‘direct link’ between the service supplied and the payments received by the provider are often the result of the national legal framework that shapes the relationship between the parties and does not always allow the cause and purpose of such payments to be established unequivocally. (
22
)
47.
The case-law on the concept of ‘consideration’ developed to date by the Court of Justice, (
23
) including, in particular, the judgments of 18 July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440), and of 20 January 2022, Apcoa Parking Danmark (C‑90/20, EU:C:2022:37), which I consider particularly relevant to the analysis of the present case, falls into those grey areas. In the first judgment, the deposit paid by a hotel client who cancelled his stay was classified as ‘fixed compensation that was not taxable’. In the second, it was held that the ‘control fees’ payable for parking in breach of the regulations in a car park constituted consideration for a supply of services.
48.
In my view, that case-law is such as to suggest that the fact that a payment – which, as in the present case, appears, in part, to be compensatory in nature – is made in the context of the provision of a service is a strong indication that it should be classified as ‘consideration’. That is all the more so since, as I pointed out in point 38 of this Opinion, the criterion relating to the existence of a legal relationship, meaning the exchange of reciprocal services, must be interpreted broadly.
49.
In the present case, it is therefore necessary to determine whether, despite the supply of a service, part of the remuneration received, namely the surcharge, cannot be classified as ‘consideration’. That would be the case if it were to be classified as ‘compensation not directly related to that service’.
2. The amount of the fee charged
50.
As regards the amount of the payment at issue in the main proceedings, it is apparent from the request for a preliminary ruling that the referring court attaches some importance to the fact that the surcharge far exceeds the basic fee. It therefore seems to question the relevance of the amount of the price to be paid in order to determine the existence of consideration.
51.
In order to answer those questions, I think it useful to recall that the concept of ‘consideration’, used in Article 73 of Directive 2006/112 in order to determine the taxable amount, is also decisive in determining whether services have been supplied ‘for consideration’ within the meaning of Article 2(1)(c) of that directive. In the absence of consideration, there is no taxable amount and the VAT system does not apply. (
24
)
52.
That ‘consideration’ is the subjective value, that is to say the amount actually received and not an amount estimated according to objective criteria. In those circumstances, as Advocate General Ruiz-Jarabo Colomer observed, (
25
) in essence, the amount of the consideration is irrelevant. The fact that it is equal to, greater or less than the costs incurred by the provider is not such as to affect the direct link between the supply of services and the consideration received. (
26
)
53.
It is true that, to some extent, it may be necessary to take account of the amount received by a service provider. This is particularly the case where the remuneration is so low that it covers only a minimal part of the costs incurred. However, the case-law developed along the way, including in particular the judgment of 30 March 2023, Gmina O. (C‑612/21, EU:C:2023:279), and that of the same date, Gmina L. (C‑616/21, EU:C:2023:280), shows, in my view, that the assessment of the adequacy of remuneration does not form part of the examination of the existence of consideration, as might be thought from reading the first part of the second sentence of paragraph 49 of the judgment of 2 June 2016, Lajvér (C‑263/15, EU:C:2016:392). (
27
) I consider that the amount of the payments received by the service provider is, in reality, only one relevant factor in order to assess the existence of an economic activity. (
28
)
54.
It seems to me that those considerations are an indication that, in the present case, there is no need to distinguish between the surcharge and the basic amount of the fee at issue, since the sum of the two is effectively payable to the collective management organisation for copyright. In any event, the high amount of the surcharge is not a relevant factor in answering the question whether it forms part of the consideration received.
3. The cause and purpose of the payments
55.
The second sentence of paragraph 49 of the judgment of 2 June 2016, Lajvér (C‑263/15, EU:C:2016:392) is also interesting for another reason, in that the second part of that sentence (
29
) suggests that there may be ‘factors’ which, when taken into account in determining the amount of remuneration for a service, could call into question the direct link between the two. I am inclined to consider that that wording could be understood as a reference to the purposes of the payments due by the recipient of the service, which may be inferred from the national legal framework of which they form part.
56.
In that regard, I would like to point out from the outset that it is irrelevant whether national law classifies the sums to be paid to the service provider as remuneration, compensation or a penalty. The assessment of whether a payment is made in consideration for a supply of services is a question of EU law. (
30
)
57.
By contrast, the legal cause or, rather, the legal basis of the payments is indeed a factor that must be taken into account in order to determine the existence of consideration. (
31
) The same applies to the objective pursued, even if, in my view, this is only an additional indicator, which cannot be decisive in itself. In order to assess those two factors, account must also be taken of the economic reality of the transactions. (
32
)
58.
The objective of the payments played an important role in the Court of Justice’s reasoning in the case that gave rise to the judgment in Tolsma, (
33
) from which it is apparent that donations made by passers-by, ex gratia, to a musician playing on the street do not constitute consideration for a service. However, that objective was not decisive in itself, as is confirmed by paragraph 17 of that judgment, which emphasises the absence of a legal relationship between that musician and his audience. (
34
)
59.
In my view, that also applies to the case which gave rise to the judgment in Société thermale d’Eugénie-les-Bains. (
35
) It follows from that judgment that, under the national law applicable to the main proceedings, the deposit was not an integral part of the accommodation agreement concluded between the client and the hotelier. The latter was obliged to reserve the room regardless of whether the deposit was paid, which confirmed that it did not constitute consideration for a service, but rather fixed compensation. (
36
)
60.
Another similar example is the case that gave rise to the judgment in MEO – Serviços de Comunicações e Multimédia, (
37
) which concerned a provision in a fixed-term contract which provided, in the case of early termination, for the remaining monthly instalments to be payable immediately. Its objective, which was to discourage customers from not observing the minimum commitment period, was not such as to affect the legal cause of the payments in that respect. They constituted a minimum contractual remuneration, to be classified as ‘consideration’. (
38
)
61.
Lastly, in the case that gave rise to the judgment in Apcoa Parking Danmark, (
39
) the imposition of ‘control fees’ on the user of a car park was not conceivable without the provision of a parking space. The Court of Justice also pointed out that the proper functioning of the car park did in fact require control of parking in breach of the regulations and that a user who parked their vehicle in breach of the normal terms and conditions for use would be required to pay those fees. Those fees took into account the higher operating costs caused by such conduct. (
40
)
62.
I am inclined to consider that the present case concerns a situation which is comparable not to that at issue in the case that gave rise to the judgment in Société thermale d’Eugénie-les-Bains, (
41
) but that referred to in the case that gave rise to the judgment in Apcoa Parking Danmark. (
42
) According to my reading of the request for a preliminary ruling, the surcharge applied is merely the result of a variation in the method of calculating the remuneration payable for the communication of protected works to the public, on the basis of the legal conditions brought to the attention of users. Where appropriate, it should be considered that, in cases where a licence has not been obtained before the communication, the surcharge forms an integral part of that remuneration.
63.
Another indication to that effect could be the fact that, in terms of the economic reality, the surcharge appears to take into account the higher cost incurred by the collective management organisation for copyright due to the failure of users to comply with the legal obligation to obtain the necessary licences, on the one hand, and in order to ensure compliance with that obligation, on the other. (
43
)
64.
In short, it is for the referring court to examine the factors which might confirm the existence of a ‘direct link’ between the service supplied and the ‘consideration’ received, including the surcharge at issue in the main proceedings. It is for that court to assess the national law and the legal and economic context of the transaction between the collective management organisation for copyright and the user who communicated the protected works without having first obtained the necessary licence. (
44
)
65.
In the light of the foregoing considerations, I consider that Article 2(1)(c) of Directive 2006/112, read in conjunction with Article 73 of that directive, must be interpreted as meaning that the remuneration, which is payable for the communication of protected works to the public, which consists of a basic fee and a surcharge applied where a licence has not been obtained prior to that communication, may be classified as ‘consideration’, which it is for the referring court to ascertain, in particular in the light of the legal basis and the purpose of that remuneration.
VI. Conclusion
66.
In the light of the foregoing, I propose that the following answer be given to the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania):
(1)
Article 2(1)(c), Article 24(1) and Article 25(b) and (c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
must be interpreted as meaning that the regulatory obligation to tolerate, in return for a fee, the communication of protected works to the public by a user, who has not previously obtained the licence required for that purpose, must be classified as a ‘supply of services for consideration’.
(2)
Article 2(1)(c) of Directive 2006/112, read in conjunction with Article 73 of that directive,
must be interpreted as meaning that the remuneration, which is payable for the communication of protected works to the public, which consists of a basic fee and a surcharge applied where a licence has not been obtained prior to that communication, may be classified as ‘consideration’, which it is for the referring court to ascertain, in particular in the light of the legal basis and the purpose of that remuneration.
José Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 3 December 2025.
[Signatures]
(
1
)	Original language: French.
(
2
)	See the considerations in De Iustitia on ‘sale’ (question 77), reproduced in Beltrán de Heredia, V., Francisco de Vitoria. Comentarios a la Secunda secundae de Santo Tomás, Volumes I toVI, Biblioteca de Teólogos Españoles, Salamanca, 1932 to 1952. Francisco de Vitoria’s economic philosophy was developed during the academic years 1527 to 1528 and 1535 to 1536 at the University of Salamanca. Although he did not publish any of his lectures himself, his extensive doctrine has been reconstructed on the basis of his students’ notes which were catalogued by Beltrán de Heredia. See, in that regard, by the same author, ‘Hacia un inventario analítico de manuscritos teológicos de la Escuela Salmantina, siglos XV-XVII, conservados en España y en el extranjero’, Revista Española de Teología, 1943, pp. 59 to 88.
(
3
)	Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
(
4
)	I would point out that, in its written observations submitted to the General Court, CREDIDAM considers that VAT is not payable.
(
5
)	See, inter alia, judgment in UCMR, paragraphs 34 and 35.
(
6
)	See, for an initial overview of that judgment, Simon, D., ‘Fiscalité – Gestion collective des droits d’auteur’, Revue Europe, No 3, 2021, commentary No 101, and, for a detailed analysis, Finken, B., ‘Nutzung von Urheberrechten unter Einschaltung einer Verwertungsgesellschaft als Dienstleistungskommission. Anmerkungen zu EuGH v. 21.1.2021 – C‑501/19, UCMR-ADA’, Mehrwertsteuerrecht, No 10, 2024, pp. 414 to 417, and, more generally, Aliaga Agullo, E., ‘Impuesto sobre el Valor Añadido y derecho de participación de los creadores visuales (“Droit de Suite”)’, Revista española de derecho financiero, No 199, 2023, pp. 37 to 77.
(
7
)	Judgment in UCMR, paragraphs 30 to 37 and 39.
(
8
)	Judgment in UCMR, paragraphs 30 to 37 and 39.
(
9
)	The methods for calculating that fee and the fact that its amount is tripled in the absence of a licence will be addressed, respectively, in Sections B.2 and C of this Opinion.
(
10
)	As regards Article 25 of Directive 2006/112, see judgment of 4 July 2024, Credidam (C‑179/23, EU:C:2024:571, paragraph 34).
(
11
)	Opinion of Advocate General Kokott in Financial Bulgaria (C‑744/23, EU:C:2025:332, point 39).
(
12
)	See, to that effect, judgment of 4 July 2024, Credidam (C‑179/23, EU:C:2024:571, paragraphs 39 and 40) as regards the legal relationship between holders of copyright and the collective management organisation for those rights, provided for by Law No 8/1996. In that regard, see also Pollaud-Dulian, F., ‘TVA, droit d’auteur et gestion collective, un point sur la jurisprudence de la CJUE’, Revue trimestrielle de droit commercial, No 3, 2024, pp. 642 to 647.
(
13
)	Judgments of 29 October 2015, Saudaçor (C‑174/14, EU:C:2015:733, paragraph 39), of 2 June 2016, Lajvér (C‑263/15, EU:C:2016:392, paragraph 42), and of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277, paragraph 39). See also Opinion of Advocate General Kokott in Financial Bulgaria (C‑744/23, EU:C:2025:332, point 40): ‘VAT is not a tax on legal transactions, or even a contractual tax …’.
(
14
)	See, to that effect, judgments of 2 June 2016, Lajvér (C‑263/15, EU:C:2016:392, paragraphs 46 and 49), and of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277, paragraph 43).
(
15
)	Judgment of 27 April 2023, Fluvius Antwerpen (C‑677/21, EU:C:2023:348, paragraphs 28 to 33). See, however, judgment of 14 July 2005, British American Tobacco and Newman Shipping (C‑435/03, EU:C:2005:464, paragraph 42): ‘The theft of goods does not constitute a supply of goods for consideration’. For a more in-depth analysis of the issue of unlawful consumption, see Beretta, G., ‘Taxable and Non-Taxable Transactions’, in Kofler, G., et al. (ed.), Recent Developments in Value Added Tax 2023, Linde, Vienna, 2024, pp. 113 to 162 (pp. 131 to 136).
(
16
)	For an overview and analysis of the relevant case-law in this regard, see Tumpel, J., ‘Mehrwertsteuer und Schadenersatz. Neue Entwicklungen in Rechtsprechung und Praxis’, in Kirchmayr, S., Mayr, G., Hirschler, K. (ed.), Schriftenreihe zum Konzern- und Unternehmenssteuerrecht, Linde, Vienna, 2023, pp. 45 to 55 and pp. 72 to 81.
(
17
)	Judgment of 29 October 2015, Saudaçor (C‑174/14, EU:C:2015:733, paragraph 34).
(
18
)	Judgment of 1 July 1982, BAZ Bausystem (222/81, EU:C:1982:256, paragraph 8). See, however, with regard to the taxation of interest paid to a supplier in order for it to agree to defer payment, judgment of 27 October 1993, Muys’ en De Winter’s Bouw- en Aannemingsbedrijf (C‑281/91, EU:C:1993:855, paragraph 18).
(
19
)	See judgment of 13 July 2023, Gemeinde A (C‑344/22, EU:C:2023:580, paragraphs 33 to 39), in which, however, an identifiable service was identified, and the commentary on that judgment by Pezet, F., ‘Quand le contribuable n’en a pas pour son argent, une taxe, même affectée, n’emporte pas qualification d’une contrepartie’, Droit fiscal, No 37, 2023, commentary No 285.
(
20
)	See point 35 of this Opinion, where I pointed out that VAT is a tax on consumption.
(
21
)	See judgments of 20 January 2022, Apcoa Parking Danmark (C‑90/20, EU:C:2022:37, paragraph 43), and of 28 November 2024, rhtb (C‑622/23, EU:C:2024:994, paragraph 25).
(
22
)	See, to that effect, Lamouroux, G., ‘Les indemnités dues en raison de la résiliation unilatérale d’un contrat d’entreprise sont-elles soumises à la TVA?’, Revue de droit fiscal, No 9, 2025, pp. 44-49 to 44-53 (pp. 44-51 to 44-52).
(
23
)	See, in respect of the classification as ‘consideration’ (1) of the price of a service, where the recipient of the service has waived its actual supply by terminating the contract early, judgments of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942, paragraphs 50, 51, 61 and 62), of 3 July 2019, UniCredit Leasing (C‑242/18, EU:C:2019:558, paragraphs 70 to 76), and of 11 June 2020, Vodafone Portugal (C‑43/19, EU:C:2020:465, paragraphs 33 to 40); (2) of the price of an unused airline ticket, judgment of 23 December 2015, Air France-KLM and Hop!-Brit-Air (C‑250/14 and C‑289/14, EU:C:2015:841, paragraphs 28, 30 and 34); (3) of payments in the event of electricity theft, judgment of 27 April 2023, Fluvius Antwerpen (C‑677/21, EU:C:2023:348, paragraphs 28 to 33); (4) of subsidies for care provided to residents of a care home for the elderly, judgment of 27 March 2014, Le Rayon d’Or (C‑151/13, EU:C:2014:185, paragraph 32), and (5) of fees received by a lawyer representing the unsuccessful party, even though he represented his client free of charge, judgment of 23 October 2025, Financial Bulgaria (C‑744/23, EU:C:2025:816, paragraphs 33 and 35). By contrast, see, in respect of the absence of ‘consideration’ (1) where a prize rewards the winner of a horse race, judgment of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraphs 36 to 39), and (2) the case of flat-rate subsidies for a public transport service, judgment of 8 May 2025, Dyrektor Krajowej Informacji Skarbowej (Public Transport Services) (C‑615/23, EU:C:2025:320, paragraphs 23 to 30).
(
24
)	See, to that effect, judgments of 5 February 1981, Coöperatieve Aardappelenbewaarplaats (154/80, EU:C:1981:38, paragraph 11), and of 1 April 1982, Hong-Kong Trade Development Council (89/81, EU:C:1982:121, paragraphs 10 and 11).
(
25
)	Opinion in Hotel Scandic Gåsabäck (C‑412/03, EU:C:2004:746, point 35).
(
26
)	This is settled case-law. See judgments of 5 February 1981, Coöperatieve Aardappelenbewaarplaats (154/80, EU:C:1981:38, paragraph 13); of 20 January 2022, Apcoa Parking Danmark (C‑90/20, EU:C:2022:37, paragraph 45); and of 1 August 2025, Határ Diszkont (C‑427/23, EU:C:2025:596, paragraph 92).
(
27
)	That part reads as follows: ‘In particular, the referring court will have to ascertain that the fee which the applicants in the main proceedings are planning to charge does not only partly remunerate the services supplied or to be supplied …’.
(
28
)	Judgments of 30 March 2023, Gmina O. (C‑612/21, EU:C:2023:279, paragraphs 31, 32, 38 and 40), and of the same date, Gmina L. (C‑616/21, EU:C:2023:280, paragraphs 37, 40, 46 and 49).
(
29
)	That part reads as follows: ‘In particular, the referring court will have to ascertain that the … amount [of the remuneration] has not been determined as a result of other possible factors that could, depending on the circumstances, call into question the direct link between the services supplied and the consideration’.
(
30
)	Judgment of 20 January 2022, Apcoa Parking Danmark (C‑90/20, EU:C:2022:37, paragraph 46 and the case-law cited).
(
31
)	See, already, to that effect, Deboissy, F., ‘Indemnités contractuelles et TVA: suite’, Revue trimestrielle de droit commercial, No 16, 2001, pp. 807 and 808. See also Beiser, R., ‘Entgelt oder Schadenersatz in der Umsatzsteuer?’, Österreichisches Recht der Wirtschaft, 2025, No 168, pp. 214 to 217 (p. 217), taking the view, in essence, that the Court of Justice links the concept of ‘consideration’, within the meaning of Article 73 of Directive 2006/112, with national civil law.
(
32
)	Judgment of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942, paragraphs 41 to 45).
(
33
)	Judgment of 3 March 1994 (C‑16/93, EU:C:1994:80, paragraphs 16 to 19).
(
34
)	For an authentic interpretation, see judgment of 23 October 2025, Financial Bulgaria (C‑744/23, EU:C:2025:816, paragraph 30). See also von Streit, G. and Streit, T., ‘Entgelt oder Schadensersatz? Oder: Die Mehrwertsteuer auf dem Weg zur Verkehrssteuer? Eine Darstellung am Beispiel von Zahlungen bei Auflösung und Nichterfüllung von Verträgen’, UmsatzsteuerRundschau, No 4, 2020, pp. 525 to 535 (p. 526), who consider that, in the judgment in Tolsma, there was no supply of services.
(
35
)	Judgment of 18 July 2007 (C‑277/05, EU:C:2007:440, paragraphs 19 to 32).
(
36
)	See the authentic interpretation of that judgment in paragraph 24 of the judgment of 28 November 2024, rhtb (C‑622/23, EU:C:2024:994). On the question of whether a distinction should be made between a deposit and a ‘booking guarantee’ and whether the latter should be classified as ‘consideration for a service’, see Bédier, J.-L., ‘La somme prélevée par l’hôtelier lorsque le client n’honore pas une réservation est soumise à la TVA’, Revue de droit fiscal, No 45, 2024, pp. 370-23 to 370-27 (p. 370-27).
(
37
)	Judgment of 22 November 2018 (C‑295/17, EU:C:2018:942, paragraphs 61 and 62).
(
38
)	For a similar example, see judgment of 3 July 2019, UniCredit Leasing (C‑242/18, EU:C:2019:558, paragraphs 75 and 76).
(
39
)	See judgment of 20 January 2022 (C‑90/20, EU:C:2022:37, paragraphs 33 and 34) and Opinion of Advocate General Richard de la Tour in that case (EU:C:2021:449, point 61).
(
40
)	See the critique by Dodos, P., ‘EuGH: Kontrollgebühren bei Verstoß gegen Parkplatz-Nutzungsbedingungen als steuerbares Entgelt’, Mehrwertsteuerrecht, No 6, 2022, pp. 240 to 244 (pp. 243 and 244).
(
41
)	Judgment of 18 July 2007 (C‑277/05, EU:C:2007:440).
(
42
)	Judgment of 20 January 2022 (C‑90/20, EU:C:2022:37).
(
43
)	I would point out that the case file before the General Court contains no information in that regard.
(
44
)	With regard to the jurisdiction of the national court to interpret its own law, see judgments of 3 July 2019, UniCredit Leasing (C‑242/18, EU:C:2019:558, paragraph 47) and of 29 October 2015, Saudaçor (C‑174/14, EU:C:2015:733, paragraph 34), already referred to in point 42 of this Opinion.