Provisional text

delivered on 10 April 2025 (1)

Case C‑101/24

Finanzamt Hamburg-Altona

XYRALITY GmbH

(Request for a preliminary ruling from the Bundesfinanzhof (Federal Fiscal Court, Germany))

( Reference for a preliminary ruling – Taxation – Common system of value added tax – Directive 2006/112/EC – Article 28 – Commissioning of services – Articles 44 and 45 – Place of supply of services – Article 203 – Entering VAT on an invoice – Supply of services by electronic means to non-taxable end users residing in the territory of the European Union by a developer of mobile applications established in a Member State through a marketplace for applications operated by an entity established in another Member State )

Introduction

The provisions of EU law on value added tax (‘VAT’) create a kind of legal fiction where the ‘commissioning of services’ takes place, that is to say, where a taxable person participates in the supply of a service by another person, acting in his own name but on behalf of that person. That is because, in such a situation, it is the agent rather than the principal who is considered to supply that service to end users. (2)

Making computer programs available is a special type of service, as it is an activity largely similar in nature to the sale of goods.(3) As in the case of goods, making computer programs available to end users often takes place through marketplaces; in the case of computer programs, those are virtual ‘marketplaces’ which, from a legal point of view, function as intermediaries in the supply of services between computer program developers and their end users. Such ‘marketplaces’ operate, in particular, in the market for ‘mobile applications’, that is, computer programs designed for use on mobile devices such as smartphones, tablets, and so forth. Those ‘marketplaces for applications’ (app stores) are often run by the vendors of the operating systems for those devices; however, the vast majority of applications sold there are from third-party developers.

The question therefore arises whether making computer programs available in that manner constitutes the commissioning of services, and whether the aforementioned legal fiction is therefore applicable, that is to say, whether an app store should be considered a supplier with respect to the mobile applications made available through it. This is significant for two reasons. First, as a supplier to end users, the app store is responsible for correctly charging, collecting and paying VAT on the transactions in which it participates. Secondly, under the law in force prior to 1 January 2015, which is applicable in the main proceedings, the identity of the supplier determines the place of supply of the service in a situation where the recipient is not a taxable person. Since the supply of services by electronic means is by its nature potentially cross-border, the place of supply of those services also determines the tax jurisdiction of Member States and the tax rate.

From the point of view of the proper functioning of the common system of VAT, in such a situation it is obviously advantageous to consider the app store as the supplier, because, as an ‘aggregator’ and direct supplier of the services provided by various mobile application developers, it has a better understanding of the identity of individual recipients and can be audited by the tax authorities more easily. However, it is not advantageous from the point of view of the fiscal interests of the Member States in whose territories the application developers are established, (4) or of the app stores themselves, which face additional obligations as a result. (5)

As of 1 January 2015, the implementing provisions of EU law specify in detail how the legal fiction discussed above should be interpreted and applied to services supplied electronically, including through app stores. The present case essentially concerns whether, and to what extent, a similar interpretation should be applied to facts arising before that date.

Legal framework

Articles 28, 44, 45 and 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax,(6) as amended by Council Directive 2008/8/EC of 12 February 2008 (‘Directive 2006/112’), (7) provide:

‘Article 28

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.

…

Article 44

The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. …

Article 45

The place of supply of services to a non-taxable person shall be the place where the supplier has established his business. …

…

Article 203

VAT shall be payable by any person who enters the VAT on an invoice.’

Pursuant to Article 1(1)(c) of Council Implementing Regulation (EU) No 1042/2013 of 7 October 2013 amending Implementing Regulation (EU) No 282/2011 (8) as regards the place of supply of services,(9) the following Article 9a was inserted in Implementing Regulation No 282/2011:

‘1. For the application of Article 28 of Directive [2006/112], 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.

…

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.’

Pursuant to the second subparagraph of Article 3 of Implementing Regulation No 1042/2013, that regulation applies from 1 January 2015.

Facts, procedure and questions referred

Between 2012 and 2014, XYRALITY, a company incorporated under German law, the applicant at first instance and the respondent in the main proceedings (‘Xyrality’), supplied services in the form of making available applications (games) for mobile devices. In particular, it made those applications available through a platform (app store) operated by company X, established in Ireland.(10) End users downloaded those games free of charge; however, improvements and other additional services were paid for (‘in-app purchases’). Those purchases were also made through the app store operated by X. Upon downloading an application, end users were informed that Xyrality was the provider. In-app purchases, on the other hand, were actually made on the app store platform, and it was company X that confirmed the purchase and charged the price. Only in the purchase confirmation issued to end users by the app store was Xyrality indicated.

Xyrality initially regarded itself as the supplier of services to end users, and considered the territory of Germany to be the place of supply of services to non-taxable persons resident in the European Union under Article 45 of Directive 2006/112. It filed its tax returns accordingly and paid the VAT due.

However, on 29 January 2016, Xyrality submitted corrected tax returns for the years 2012 to 2014, in which it declared that services had been commissioned within the meaning of Article 28 of Directive 2006/112, that the supplier of services to end users had been company X, and that therefore the supply of services had taken place solely in the territory of Ireland (under Articles 44 and 45 of Directive 2006/112), and VAT on that supply was not due in Germany.

The Finanzamt Hamburg-Altona (tax authority, Hamburg-Altona, Germany), the appellant in the main proceedings, issued a tax decision disregarding the corrections made by Xyrality, as the authority found that company X was merely an intermediary, and the actual supplier of services to end users was Xyrality. Xyrality appealed that decision.

In its judgment of 25 February 2020, the Finanzgericht Hamburg (Finance Court, Hamburg, Germany) upheld Xyrality’s appeal. The tax authority brought an appeal on a point of law against that judgment before the referring court.

In those circumstances, the Bundesfinanzhof (Federal Fiscal Court, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(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 [Directive 2006/112] 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 [Directive 2006/112] in Ireland, by virtue of Article 44 of [that directive], or in [Germany], by virtue of Article 45 [thereof]?

(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 [Germany]: is the developer subject to a tax liability for German VAT under Article 203 of [Directive 2006/112], 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?’

The request for a preliminary ruling was received by the Court on 7 February 2024. Written observations were submitted by Xyrality, the German Government and the European Commission. The Court decided to give a ruling on the case without a hearing.

Analysis

The referring court has referred three questions to the Court for a preliminary ruling, the most important of which is, of course, the first question. I will consider those questions in the order in which they were submitted.

First question referred

The first question referred for a preliminary ruling concerns the applicability of Article 28 of Directive 2006/112 in the main proceedings. The parties disagree as to the interpretation of that provision and the relevance to the interpretation, prior to 1 January 2015, of Article 9a of Implementing Regulation No 282/2011. Before analysing that question, however, I must make some preliminary observations.

Preliminary observations

Under Article 2(1)(c) of Directive 2006/112, the supply of services for consideration is subject to VAT. In the main proceedings, only in-app purchases were paid for, while the application itself was made available free of charge, and therefore making it available as such was not taxable.

For that reason, the court of first instance in the main proceedings relied in its interpretation of Article 28 of Directive 2006/112 – an interpretation largely shared by the referring court – on the characteristics of those purchases made within the application that Xyrality had made available. In particular, the court of first instance noted that ‘in-app’ purchases actually took place in separate windows marked with the app store’s logo, and that customers were only informed about the identity of the actual service supplier for those purchases, namely the application developer, in the confirmation sent to them via email by the app store.

I believe, however, that the possible application of Article 28 of Directive 2006/112 cannot be considered solely in the context of in-app purchases, in isolation from the circumstances surrounding the app itself being made available. Also, in my view it would be completely illogical to consider that the supplier of the in-app purchase service is the app store, while the supplier of the application itself, which is downloaded through the same store, is the developer. Similarly, the purpose of Article 28 of Directive 2006/112 and the principle of tax neutrality do not, in my view, allow for different treatment of in-app purchases solely on the basis of whether or not the application itself was made available free of charge.

In fact, the service in the form of in-app purchases is entirely dependent on, and additional to, the main service of making the application itself available. Therefore, making the application available, whether on a paid basis or not, and the service of in-app purchases should, in my view, be treated as inseparable parts of a single service for VAT purposes, with the main supply being making the application available.(11) From the point of view of Article 28 of Directive 2006/112, this means that the role of the various participants in the transaction must be assessed in the light of all of the relationships between them, beginning with the circumstances in which the application itself is made available, and not just seen through the prism of the circumstances in which the in-app purchase service is supplied. (12)

I do not believe, therefore, that considerations such as when and how the identity of the application developer is communicated to end users when the in-app purchase service is provided are of decisive importance for the purpose of evaluating the application of the above provision. Indeed, the legal issue in the present case is more general and concerns any services supplied through entities such as app stores, including, first and foremost, making the apps themselves available.(13)

I therefore propose to consider that, by its first question, the referring court essentially seeks to determine whether Article 28 of Directive 2006/112 is to be interpreted as applying to the situation of the supply, prior to 1 January 2015, by electronic means, of services consisting in making computer programs (mobile applications) and additional services available through a portal (app store), with the result that a taxable person operating an app store is treated as if it had received those services from an application developer and supplied them to end users.

Interpretation of Article 28 of Directive 2006/112

Under Article 28 of Directive 2006/112, where a taxable person acting in his own name but on behalf of another person takes part in the supply of a service, that taxable person is deemed to be the supplier. According to the Court, that provision creates the legal fiction of two identical supplies of services provided consecutively: the intermediary first receives the services in question from the principal and then provides them to the end user. It follows that, as regards the legal relationship between the principal and the agent, their respective roles of service provider and payer are notionally inversed for the purposes of VAT.(14) The wording of that provision, as well as its nature as a legal fiction, provide some clues as to how it should be interpreted with regard to services provided electronically with the participation of intermediaries such as app stores.

An intermediary acting in the manner provided for in Article 28 of Directive 2006/112 is sometimes referred to as an ‘undisclosed agent’, although it would be more accurate to use the term ‘agent of an undisclosed principal’.(15)

However, withholding the identity of the principal is not a condition for the application of Article 28 of Directive 2006/112, so the fact that the app developer is known to end users does not preclude the app store from being considered an intermediary acting in the manner provided for in that provision.

First, there is nothing in the wording of Article 28 of Directive 2006/112 to indicate that its application is conditional on the identity of ‘another person’ on whose behalf the intermediary acts being kept secret. Second, the Court explicitly ruled out that requirement for the application of the provision in question in the judgment in Fenix International. (16)

) Moreover, the Court allowed the application of that provision to the intermediation of collective management organisations in the authorisation for the public performance of works by the holders of copyright in those works, (<a href="#Footnote17" name="Footref17">17</a>) even though the identity of the creators of those works is often well known.

In view of the above, I believe that the fact that end users of a service that consists in making computer programs (mobile applications) available, which is provided through an app store, are informed, either before or after the service is provided, of the identity of the application developer, does not preclude the application of Article 28 of Directive 2006/112 in such a situation.

As for the assessment of whether a taxable person is acting in his own name, the Court has ruled that this was for the national court hearing a particular case to determine on the basis of all the available information, including, in particular, the contractual relations between the taxable person and its customers.(<a href="#Footnote18" name="Footref18">18</a>) Indeed, contractual agreements reflect, in principle, economic and commercial realities of transactions, the taking into account of which is a fundamental criterion for the application of the common system of VAT, so that the relevant contractual terms constitute a factor to be taken into consideration when the supplier and the recipient in a ‘supply of services’ transaction within the meaning of Directive 2006/112 have to be identified. (<a href="#Footnote19" name="Footref19">19</a>)

However, it should be borne in mind that those statements of the Court refer to Article 9a of Implementing Regulation No 282/2011 and only mean that, in the Court’s view, the presumptions contained in that provision properly reflect the actual contractual relations between the parties to the transactions which the regulation governs.(<a href="#Footnote20" name="Footref20">20</a>)

As for Article 28 of Directive 2006/112 itself, it does not strictly reflect the actual contractual relations between the various parties to a supply of services transaction, because, as I have already mentioned, it creates a legal fiction for VAT purposes.(<a href="#Footnote21" name="Footref21">21</a>) Indeed, this is already indicated by the wording of that provision, according to which a taxable person who takes part in a supply of services on behalf of another person is ‘deemed’ to have supplied those services himself or herself. Therefore, the actual civil-law relationship between the parties looks different, for if that taxable person actually supplied the service himself or herself, he or she would simply be another link in the supply chain, and there would be no need to apply the fiction established in the provision in question.

All that Article 28 of Directive 2006/112 requires is that the taxable person acts on behalf of another person, but in his own name. Thus, the taxable person acts as himself in relation to the recipients of the service and determines his own rules for establishing and executing that legal relationship. He does not, however, undertake to provide the service and is not responsible for it, because in such a case he would be acting on his own behalf rather than on behalf of another person. Thus, the taxable person remains an intermediary between the actual service supplier and the recipient, and only for VAT purposes is the taxable person fictitiously assumed to be the service supplier.

I am therefore not persuaded by the arguments put forward by the German Government that Article 28 of Directive 2006/112 does not apply to the situation at issue in the main proceedings, because, in reality, the recipients of the service of making mobile applications available enter into contracts with the developers of those applications, and it is the developers who are responsible for the functioning of the applications. That is precisely what the taxable person (in this case, the app store) is doing on behalf of other persons (the application developers). If the app store entered into contracts with the persons to whom those applications are made available, and if it were responsible for their functioning, it would be acting on its own behalf rather than on behalf of the developers. The German Government’s reasoning would render that provision of Directive 2006/112 meaningless, because, according to that reasoning, the provision would regulate non-existent situations.

In the case of services such as making mobile applications available through an app store, on the other hand, the operation of the store on its own behalf consists in the fact that the process of obtaining access by customers to applications takes place entirely within the store application,(<a href="#Footnote22" name="Footref22">22</a>) without customers being redirected to a website or to another source belonging to the developers of individual applications. It is also the app store which sets, uniformly for all applications available within it, the conditions for obtaining such access. Furthermore, the app store does not provide access to any application, but only to those that are designed for a specific operating system and have been verified for interoperability with that system and for security.

The same applies to additional services (in-app purchases). According to the information included in the request for a preliminary ruling, those in-app purchases actually took place in a separate window, which was the app store window; users were thus transferred from the developer’s application to the store’s application. Therefore, likewise in the case of those additional services, the taxable person operating the app store is acting on its own behalf.

From the point of view of the persons to whom the service is supplied, the app store is also acting on its own behalf. A service such as making mobile apps available is provided entirely electronically and in intangible form. Thus, the customer may know that he or she is receiving an application from a particular developer, but does not know the contractual arrangements between the developer and the store or the route by which access to the application or to additional services is granted. That is because the customer does not order the application from the developer, but downloads it directly from the app store, to which the developer must first upload it. The application is ready for use immediately after being downloaded from the app store, irrespective of confirmation of its purchase and irrespective of any subsequent action by the developer. From the customer’s point of view, therefore, the store is the direct supplier of the application. In addition, the store charges a fee for providing the application and confirms the conclusion of the contract. Thus, it is the store that acts as a service supplier in relation to the customer.(<a href="#Footnote23" name="Footref23">23</a>)

Therefore, in the case of such a specific type of service as making mobile applications available through an app store, the economic and technical reality comes as close as possible to the fiction established by Article 28 of Directive 2006/112, and the application of that provision is thus all the more justified here.

The provision in question should therefore, in my view, be interpreted as applying to the situation of the supply, prior to 1 January 2015, by electronic means, of services consisting in making mobile applications and additional services available through an app store.

Application of Article 9a of Implementing Regulation No 282/2011

As a reminder, Article 9a of Implementing Regulation No 282/2011 introduces, with respect to services supplied electronically through a telecommunications network, an interface or a portal, such as a marketplace for applications, a presumption that such an intermediary is acting in his own name but on behalf of another person, unless that other person is explicitly indicated as the supplier. Article 28 of Directive 2006/112 therefore applies in principle to such services. In addition, when the conditions set forth in the third subparagraph of Article 9a(1) of Implementing Regulation No 282/2011 are met, that is to say, when the intermediary authorises the charge to the customer or the delivery of the services, or sets the general terms and conditions of the supply, that presumption becomes irrebuttable.

As I have already indicated above, (<a href="#Footnote24" name="Footref24">24</a>) according to the second subparagraph of Article 3 of Implementing Regulation No 1042/2013, Article 9a of Implementing Regulation No 282/2011 applies from 1 January 2015. Therefore, it is not possible to apply that provision to the facts in the main proceedings, which cover a period prior to that date.

However, it is likewise impossible to accept the argument raised by the tax authority in the main proceedings, according to which the fact that the provision in question was not in force during the period in question means that, in relation to that period, Article 28 of Directive 2006/112 should be interpreted in a radically different way from that arising from Article 9a of Implementing Regulation No 282/2011. That is because the latter provision does not modify or supplement the aforementioned provision of the directive, but merely specifies the manner of its implementation. Thus, the a contrario reasoning presented by the tax authority is not applicable here.

The Court analysed Article 9a of Implementing Regulation No 282/2011 in detail in the case which gave rise to the judgment in Fenix International, in which it examined the validity of that provision in terms of its compliance with Article 28 of Directive 2006/112.

In that judgment, the Court found, in particular, that the presumption of Article 9a of Implementing Regulation No 282/2011 does not alter the nature of the presumption laid down in Article 28 of Directive 2006/112, but, by fully integrating it, is limited to giving concrete expression to it in the specific context of the supply of electronically supplied services.(<a href="#Footnote25" name="Footref25">25</a>) In other words, already on the grounds of Article 28 of Directive 2006/112, and without the need to refer to Article 9a of Implementing Regulation No 282/2011, that is to say, also before the latter provision entered into force, it was reasonable to presume that a marketplace for applications intermediating in making mobile applications available acts in its own name but on behalf of the developers of those applications.

On the other hand, with regard to the third subparagraph of Article 9a(1) of Implementing Regulation No 282/2011, the Court specifically found that under the circumstances set forth therein, the intermediary may unilaterally define essential elements relating to the supply; in such circumstances, and having regard to the economic and commercial reality reflected by them, the intermediary must be regarded as being the supplier of services, pursuant to Article 28 of Directive 2006/112. The Court further held that the third subparagraph of Article 9a(1) of Implementing Regulation No 282/2011, which introduces an irrebuttable presumption that an intermediary acts in his own name in the circumstances mentioned therein, does not alter the normative content established by Article 28 of that directive but, on the contrary, merely gives specific expression to the application of that provision to the particular case of the services referred to in Article 9a(1) of that implementing regulation.(<a href="#Footnote26" name="Footref26">26</a>)

The Court thus equated the normative content of Article 9a of Implementing Regulation No 282/2011 and the interpretation to be given to Article 28 of Directive 2006/112 before the date of entry into force of the former provision with regard to services supplied electronically through, inter alia, marketplaces for applications.

In the context of the present case, it should be noted that, after a developer uploads a mobile application to an app store, the taxable person operating the store, such as company X in the main proceedings, (i) authorises the supply of the service of making that application and additional services available (in-app purchases); (ii) authorises the charge to the customer; and (iii) sets the general terms and conditions of the supply. Thus, all the conditions for the non-rebuttability of the presumption that the taxable person is acting in his own name listed in the third subparagraph of Article 9a(1) of Implementing Regulation No 282/2011 are met.(<a href="#Footnote27" name="Footref27">27</a>) Thus, although Article 9a itself is not applicable to facts arising before 1 January 2015, its wording confirms my proposed interpretation of Article 28 of Directive 2006/112, according to which a taxable person operating a marketplace for applications, such as company X in the main proceedings, is to be considered the supplier of a service consisting in making mobile applications available under that provision, irrespective of the fact that the end users of that service know the identity of the developers of those applications. (<a href="#Footnote28" name="Footref28">28</a>)

Answer to the question

In view of the above, I propose that the Court answer the first question referred for a preliminary ruling as follows: Article 28 of Directive 2006/112 is to be interpreted as applying to the situation of the supply, prior to 1 January 2015, by electronic means, of services consisting in making available computer programs (mobile applications) and additional services through a portal (app store), with the result that a taxable person operating an app store is treated as if it had received those services from an application developer and supplied them to end users.

Second question referred

By its second question, the referring court essentially seeks to determine whether Article 28 of Directive 2006/112 is to be interpreted as meaning that the place of supply of a fictitious service supplied by another person to a taxable person who takes part, under the conditions set forth in Article 28 thereof, in the supply of services to non-taxable persons resident in a Member State, is to be determined on the basis of Article 44 of that directive, or as meaning that the place is to be determined on the basis of Article 45 thereof.

As I indicated above,(<a href="#Footnote29" name="Footref29">29</a>) Article 28 of Directive 2006/112 creates a legal fiction of two consecutive services, the first of which is supplied by a third party (the principal) to the taxable person (the agent), and the second of which is supplied by the agent to the end user.

The first of those services, which is fictitious, is by definition a service supplied to a taxable person.(<a href="#Footnote30" name="Footref30">30</a>) The place of supply of such a service is determined, in accordance with the usual rules, on the basis of Article 44 of Directive 2006/112, according to which the place of supply is, as a rule, the place of establishment of that taxable person. In contrast, the second service, which is the service proper, can be provided either to taxable persons or to non-taxable persons. In the facts of the main proceedings, the service is probably provided to the latter in the overwhelming majority of cases, as it can be assumed that customers of the service of in-app purchases in a game for mobile devices are usually consumers, that is to say, persons who are not taxable persons for VAT purposes. In such a situation, the place of supply of services is determined, under the law in force before 1 January 2015 and with respect to services provided to persons residing in a Member State, on the basis of Article 45 of the directive in question, according to which that place is, as a rule, the place of establishment of the supplier. (<a href="#Footnote31" name="Footref31">31</a>) Thus, in the facts of the main proceedings, the principal place of supply of both services is Ireland, which is the place of establishment of company X.

However, the referring court asks whether or not, in the exceptional situation where Article 28 of Directive 2006/112 is applied, the place of supply of the first (fictitious) service should be determined as if it had been provided by the principal directly to end users, and in that case those end users are usually non-taxable persons. The place of supply would therefore be determined, for customers resident in a Member State, on the basis of Article 45 of Directive 2006/112, and would be Germany, where Xyrality is established.

I concur with the parties to the proceedings who submitted observations in the present case, including the German Government, that this question should be answered in the negative.

Pursuant to Article 28 of Directive 2006/112, the agent is ‘deemed’ to have received the service from the principal, which he then supplies to the recipient proper. That first supply is therefore fictitious in the sense that it does not correspond to the reality of the relationship between the parties concerned. From a VAT standpoint, however, that supply should be treated as existing and taxable, and neither Article 28 of Directive 2006/112, nor Articles 44 and 45 thereof, nor any other provision of the directive indicates that the place of that supply is to be determined differently from the place of supply of other services. Because it is a supply of services to a taxable person, its place should be determined in accordance with Article 44 of the directive. Indeed, there is no basis for determining it in any other way.

On the other hand, adopting the solution suggested by the referring court could lead to significant complications.

Under the law in force before 1 January 2015, the only difference between Article 44 and Article 45 of Directive 2006/112 is that pursuant to the former provision, the place of supply of a service is the place of establishment (alternatively, the place of business or residence) of the recipient, while under the latter provision, the place of supply is the place of establishment (alternatively, a fixed establishment or residence) of the supplier. The application of one or the other of those provisions does not present undue difficulties from the point of view of correct tax assessment and collection.

However, Article 28 of Directive 2006/112 should be interpreted in the same manner both before and after 1 January 2015. After that date, the place of supply of electronically supplied services to non-taxable persons is not the place of establishment of the service supplier, but rather the place of residence of the recipient.(<a href="#Footnote32" name="Footref32">32</a>) Given that electronically supplied services may, by their nature, be supplied to entities residing in different Member States or outside the European Union, the supplier must tax those services according to the place of residence of the individual recipient in each case. Where the service supplier does not act on its own, but through an intermediary acting on the supplier’s behalf but in his own name, the service supplier has no direct contact with the recipients, and thus the calculation and payment of VAT could become much more difficult and run the risk of significant errors.

That problem is solved by the application to electronically supplied services, after 1 January 2015, of Article 28 of Directive 2006/112, which shifts the obligation to charge and pay VAT to the agent, that is to say, the taxable person who enters into transactions with end users directly and thus has the information required to tax those transactions correctly. For that reason, the EU legislature has established detailed provisions in Article 9a of Implementing Regulation No 282/2011.(<a href="#Footnote33" name="Footref33">33</a>)

To adopt the referring court’s suggestion that the place of supply of a fictitious service by the principal to the agent should be determined as if it were a service provided directly to end users would nullify those benefits and undermine the objective of Article 9a of Implementing Regulation No 282/2011. This is an additional argument in favour of determining the place of supply of that fictitious service in accordance with the general rules on the place of supply of services to taxable persons.

59.I therefore propose that the Court answer the second question referred for a preliminary ruling as follows: Article 28 of Directive 2006/112 is to be interpreted as meaning that the place of supply of a fictitious service supplied by another person to a taxable person who takes part, under the conditions set forth Article 28 thereof, in the supply of services to non-taxable persons resident in a Member State, is to be determined on the basis of Article 44 of that directive.

Third question referred

60.By its third question, the referring court essentially seeks to determine whether Article 203 of Directive 2006/112 is to be interpreted as meaning that another person on whose behalf a taxable person taking part in the supply of services under the conditions set forth in Article 28 of that directive acts is liable to pay VAT on the ground that the taxable person has designated that other person, with his consent, as the supplier of services and stated the amount of VAT in the purchase confirmations transmitted electronically to non-taxable end users.

61.It should be recalled here that, under Article 203 of Directive 2006/112, anyone who enters the VAT on an invoice is obliged to pay VAT.

62.According to well-established case-law, that provision seeks to eliminate the risk of loss of tax revenue which the right of deduction provided for by that directive might entail.(34) That article therefore applies where VAT has been invoiced incorrectly and there is a risk of loss of tax revenue on account of the fact that the recipient of the invoice in question has the right to deduct such VAT. (35) Accordingly, Article 203 of Directive 2006/112 applies only to a tax liability in excess of the tax liability due under the general rules on when VAT is chargeable. (36)

63.In other words, that provision increases the tax debt over and above the amount of the actual liability arising under the substantive provisions, and should therefore be interpreted strictly.(37)

64.In accordance with the requirement of strict interpretation, the Court has ruled that Article 203 of Directive 2006/112 does not apply in a situation where there is no risk of loss of tax revenue on the ground that the invoices in question were issued to non-taxable persons who, by definition, have no right to deduct the VAT shown on those invoices.(38)

65.A similar situation exists in the main proceedings. As the referring court noted, the recipients of in-app purchases in applications such as games for mobile devices are, as a rule, consumers, and only in very exceptional cases could they be taxable persons acting as such. Therefore, there is no risk of loss of tax revenue associated with the right to deduct VAT incorrectly shown on an invoice, and Article 203 of Directive 2006/112 does not apply.

66.The referring court suggests, however, that that provision could be applied in the main proceedings because of the risk of loss of tax revenue caused by a negative jurisdictional dispute between the tax authorities in Germany and Ireland, as a result of which VAT will not ultimately be collected in either Member State. The referring court considers that Xyrality is responsible for that situation having arisen.

67.I do not share that view. As I indicated above, Article 203 of Directive 2006/112 increases the tax debt over and above the amount of the actual liability and should therefore be interpreted strictly. Its application is related to the VAT shown on the invoice, which in turn is the primary instrument for taxable persons to prove their right to deduct VAT.(39) That provision is therefore functionally linked to the right to deduct tax and serves, in accordance with the Court’s case-law, (40) to avoid the risk of loss of tax revenue resulting from the deduction being overstated.

68.On the other hand, it is up to Member States to take steps to ensure full collection of the VAT due on their territory. That obligation, however, does not justify the collection of tax in a Member State where it is not due and from a taxable person who is not obliged to pay it, just because the tax has not been collected in another Member State and from another person. Xyrality has, in my opinion, correctly, albeit belatedly, determined its VAT liabilities, and it is up to the Member States concerned to take all necessary measures to collect that tax correctly.

69.For the above reasons, I believe that Article 203 of Directive 2006/112 does not apply to the VAT shown in the purchase confirmations sent to non-taxable end users by a taxable person who takes part in the supply of services under the conditions set forth in Article 28 of that directive and which indicate another taxable person as the supplier.

70.Furthermore, I doubt whether it is possible to consider, as the referring court does, such confirmations to be invoices within the meaning of Article 203 of Directive 2006/112.(41)

71.In the judgment in Finanzamt Österreich , (42) while the Court tacitly recognised tickets to an indoor playground as invoices, it subsequently concluded that Article 203 of Directive 2006/112 was not applicable for the reasons indicated in point 64 of this Opinion. However, it is important to remember that an invoice serves primarily to prove the right to deduct VAT. That is why Article 220 of Directive 2006/112 requires an invoice, as a general rule, for transactions between taxable persons. While the Court allowed a document other than an actual invoice to be considered an invoice for the purpose of applying Article 203 of that directive, this applies only to documents that contain all the information necessary for the tax authorities of a Member State to be able to establish whether the substantive conditions for the right to deduct VAT are satisfied in the case. (43)

72.On the other hand, an order confirmation or another document issued to a non-taxable person does not allow any right to deduct VAT to be controlled, because that person has no such right. Nor does such a document allow for effective control over the payment of VAT by the taxable person who issued the document, because it is in the possession of the recipient, and the taxable person is under no obligation to make and keep a copy of it. I believe, therefore, that such documents should be considered invoices for the purpose of applying Article 203 of Directive 2006/112 only in situations where EU law provides for the obligation to issue an invoice, that is to say, when there is at least a potential right to deduct VAT.

73.Finally, I am not convinced that, in circumstances covered by Article 28 of Directive 2006/112, the principal should be considered the ‘person who enters the VAT on an invoice’ if the alleged invoice is issued by the agent, even if the principal is indicated therein as the service supplier with his consent. Because the agent acts in his own name and has control over the essential elements of the supply,(44) it can be assumed that it is he, in his own name, who confirms the acceptance and performance of the order. Indeed, Article 203 of the directive in question does not require that the issuer of the invoice be the actual service supplier; it can be ‘any person’.

74.I therefore propose that the Court answer the third question referred for a preliminary ruling as follows: Article 203 of Directive 2006/112 is to be interpreted as meaning that another person on whose behalf a taxable person taking part in the supply of services under the conditions set forth in Article 28 of that directive acts is not liable to pay VAT on the ground that the taxable person has designated that other person, with his consent, as the supplier of services and stated the amount of VAT in the purchase confirmations transmitted electronically to non-taxable end users.

Conclusion

75.In the light of all the above considerations, I propose that the following answers should be given to the questions referred for a preliminary ruling by the Bundesfinanzhof (Federal Fiscal Court, Germany):

(1) Article 28 of 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,

is to be interpreted as applying to the situation of the supply, prior to 1 January 2015, by electronic means, of services consisting in making available computer programs (mobile applications) and additional services through a portal (app store), with the result that a taxable person operating an app store is treated as if it had received those services from an application developer and supplied them to end users.

(2) Article 28 of Directive 2006/112, as amended by Directive 2008/8,

is to be interpreted as meaning that the place of supply of a fictitious service supplied by another person to a taxable person who takes part, under the conditions set forth in Article 28 thereof, in the supply of services to non-taxable persons resident in a Member State, is to be determined on the basis of Article 44 of that directive.

(3) Article 203 of Directive 2006/112, as amended by Directive 2008/8,

is to be interpreted as meaning that another person on whose behalf a taxable person taking part in the supply of services under the conditions set forth in Article 28 of that directive acts is not liable to pay VAT on the ground that the taxable person has designated that other person, with his consent, as the supplier of services and stated the amount of VAT in the purchase confirmations transmitted electronically to non-taxable end users.

—

1Original language: Polish.

2See, in particular, point 24 of this Opinion.

3In its judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407), the Court even held that, under intellectual property law, making computer programs available in an intangible form may be equivalent to the sale of tangible goods. However, under VAT regulations, such equivalence does not exist due to the very strict definition of a supply of goods in those regulations. Making computer programs available, at least in intangible form, which is now the rule, should therefore be treated as a supply of services.

4This aspect is already of mainly historical significance, given that, since 1 January 2015, services supplied electronically to non-taxable persons are, as a rule, taxed in the place where the recipient is resident. However, it may explain the German Government’s position in the present case.

5This divergence of interests is pointed out in Claessens, S. and Corbett T., ‘Intermediated delivery and third-party billing: Implications for the operation of VAT systems around the world’, in Lang, M. and Lejeune, I. (eds), VAT/GST in a Global Digital Economy, Kluwer Law International, Alphen aan den Rijn, 2015.

6OJ 2006 L 347, p. 1.

7OJ 2008 L 44, p. 11.

8Council Implementing Regulation of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ 2011 L 77, p. 1).

9OJ 2013 L 284, p. 1.

10The referring court uses the initial ‘X’ to designate the entity operating the app store at issue in the main proceedings. It should not be confused with an entity that supplies information society services under the X trade mark.

11Obviously, the application may also not allow in-app purchases, or customers may choose not to use them. In such a case, however, if the application itself is free of charge, then the problem of VAT either does not arise at all or the configuration of entities taking part in the transaction is quite different from that in the present case (for instance, if making the application available is financed by the advertisements displayed during its use).

12This issue also has other VAT implications – for instance, with regard to the right to deduct tax paid in the production costs of an application that is subsequently made available to end users free of charge. Although this goes beyond the scope of this Opinion, those issues should be treated in a consistent manner.

13Incidentally, I should like to add that the above remarks apply not only to the period before 1 January 2015, but also to facts that arose after that date and to the question of the possible applicability of Article 9a of Implementing Regulation No 282/2011 to those facts.

14See judgments of 14 July 2011, Henfling and Others (C‑464/10, EU:C:2011:489, paragraph 35), and of 28 February 2023, Fenix International (C‑695/20, ‘the judgment in Fenix International’, EU:C:2023:127, paragraph 54 in fine and the case-law cited). What the Court means here is that the intermediary, who in fact provides an intermediation service to the supplier of the main service, becomes the recipient of that main service, for which it ‘pays’ a fictitious price, while in fact it passes on the price paid by the end user of that main service less the intermediary’s markup, if any.

15Opinion of Advocate General Kokott in Commission v United Kingdom (C‑305/03, EU:C:2005:110, point 41).

16Paragraph 87.

17Judgment of 21 January 2021, UCMR – ADA (C‑501/19, EU:C:2021:50, point 2 of the operative part).

18The judgment in Fenix International (paragraph 73 and the case-law cited).

19The judgment in Fenix International (paragraph 72).

20On the content of Article 9a of Implementing Regulation No 282/2011, see point 41 of this Opinion.

21See point 24 of this Opinion.

22From a functional point of view, an app store is also an application.

23The situation may be different where electronic communications are merely used to conclude a contract for the provision of a tangible service (for instance, accommodation, property rental or transportation). That is because in such a situation, the customer comes into direct contact with the relevant service supplier.

24See point 8 of this Opinion.

25Paragraph 70.

26The judgment in Fenix International (paragraphs 83 to 86).

27Moreover, those conditions are not cumulative, so the fulfilment of one of them is sufficient to make the presumption irrebuttable.

28As Xyrality rightly points out, the Court allows reference to provisions of Implementing Regulation No 282/2011 that are not applicable ratione temporis as guidance in interpreting Directive 2006/112 (see judgment of 15 November 2012, Leichenich, C‑532/11, EU:C:2012:720, paragraph 32).

29See point 24 of this Opinion.

30That is because, under Article 28 of Directive 2006/112, an agent can only be a taxable person.

31However, with regard to services provided electronically to non-taxable persons residing outside the European Union, point (k) of the first paragraph of Article 59 of Directive 2006/112, as in effect before 1 January 2015, applies, according to which the place of supply of services is the place where such persons are resident.

32See the current Article 58(1)(c) of Directive 2006/112.

See recitals 1 to 4 of Implementing Regulation No 1042/2013.

34Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraph 20 and the case-law cited).

35Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraph 21).

36See, to that effect, judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraph 23).

37See, to that effect, Opinion of Advocate General Kokott in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657, points 25 and 26).

38Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraphs 24 and 25).

39It constitutes a ‘“ticket of admission” to the right to deduct’ as described by Advocate General Slynn (Opinion of Advocate General Slynn in Joined Cases 123/87 and 330/87, Jeunehomme and EGI, EU:C:1988:274, p. 4534); see Terra, B. and Kajus J., A Guide to the European VAT Directives, Vol. 1, IBFD, 2024, p. 1326.

40See point 62 of this Opinion.

41However, a different view on this issue was expressed by Advocate General Kokott in her Opinion in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657, point 29).

42Judgment of 8 December 2022 (C‑378/21, EU:C:2022:968).

43Judgment of 29 September 2022, Raiffeisen Leasing (C‑235/21, EU:C:2022:739, operative part).

44See point 46 of this Opinion.