Case C‑37/16

Minister Finansów

v

Stowarzyszenie Artystów Wykonawców Utworów Muzycznych i Słowno-Muzycznych SAWP (SAWP)

(Request for a preliminary ruling

from the Naczelny Sąd Administracyjny)

(Reference for a preliminary ruling — Taxation — Common system of value added tax — Taxable transactions — Concept of ‘supply of services for consideration’ — Payment of fees, in respect of fair compensation, to organisations collectively managing copyright and related rights — Not included)

Summary — Judgment of the Court (Eighth Chamber), 18 January 2017

Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Supply of services for consideration — Concept — Payment of fees, in respect of fair compensation, to organisations collectively managing copyright and related rights — Not included

(Council Directive 2006/112, as amended by Directive 2010/45, Art. 2(1)(c))

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as meaning that holders of reproduction rights do not make a supply of services, within the meaning of that directive, to producers and importers of blank media and of recording and reproduction devices on whom organisations collectively managing copyright and related rights levy on behalf of those rightholders, but in their own name, fees in respect of the sale of those devices and media.

In accordance with settled case-law, a supply of services is made for consideration, within the meaning of the VAT Directive, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (see judgment of 22 June 2016, Český rozhlas, C‑11/15, EU:C:2016:470, paragraph 21 and the case-law cited).

The Court has held that that is the case if there is a direct link between the service supplied and the consideration received, the sums paid constituting actual consideration for an identifiable service supplied in the context of such a legal relationship (judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains, C‑277/05, EU:C:2007:440, paragraph 19).

In the present instance, first, it does not appear that there is a legal relationship pursuant to which there is reciprocal performance by, on the one hand, holders of reproduction rights or, as the case may be, the organisation collectively managing such rights and, on the other, producers and importers of blank media and of recording and reproduction devices. Indeed, the obligation to pay fees, such as those at issue in the main proceedings, is owed by those producers and importers by virtue of the national legislation which also determines their amount.

Secondly, the obligation on producers and importers of blank media and of recording and reproduction devices to pay fees cannot be regarded as resulting from the supply of a service for which it constitutes the direct consideration. It is apparent from the order for reference that fees such as those at issue in the main proceedings are intended to finance fair compensation for holders of reproduction rights. However, the fair compensation does not constitute the direct consideration for any supply of services, because it is linked to the harm resulting for those rightholders from the reproduction of their protected works without their authorisation (see, to that effect, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 40).

Consequently, a transaction such as that at issue in the main proceedings cannot be regarded as being carried out for consideration, for the purposes of Article 2(1)(c) of the VAT Directive.

(see paras 25-31, 33, operative part)