12.6.2023

Official Journal of the European Union

C 205/21

(Case C-69/23, Streaming Services)

(2023/C 205/25)

Language of the case: Romanian

Referring court

Parties to the main proceedings

Applicant: Streaming Services Srl — in liquidation, represented by the receiver Cabinet Individual de Insolvență ‘Mihai Florea’

Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Administrația Județeană a Finanțelor Publice Călărași

Questions referred

1.For the purposes of the uniform interpretation and application of [EU] law, does the supply of digital content such as that at issue in the main proceedings, consisting in interactive erotic sessions, filmed and transmitted in real time by electronic/internet means, provided by a taxable person in one Member State of the European Union (P1, video chat studio) to another taxable person in another EU Member State (P2, online live streaming platform), constitute an intra-Community supply of services subject to the general rules laid down in Article 44 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (VAT Directive), or does it constitute the grant of admission to an entertainment event within the meaning of Article 53 of the VAT Directive?

2.When interpreting and applying Article 53 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (VAT Directive) and Article 32(1) of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for the VAT Directive, in which place are the events to be regarded as actually taking place, in the case of activities consisting in interactive erotic sessions, filmed and transmitted in real time by electronic/internet means (used in video chat activity), such as those at issue in the main proceedings, where:

(a) the natural person (model) and the video chat studio,

(b) the live streaming platform and

(c) the natural person paying a fee for access to such live streaming services (end customer)

are located in different Member States or third states?

3.Depending on the reply given to the first two questions: in which of the three EU Member States should value added tax on the supply of services be, respectively, declared and paid?

4.Do the VAT Directive and the principle of the prevention of double taxation preclude national tax legislation, such as Article 307 of Legea nr. 227/2015 (Law No 227/2015), under which:

(a) the national tax authorities of the State of the provider may classify cross-border services provided by a taxable person in one EU Member State (P1 — video chat studio), consisting in the supply (transfer) of digital content such as that at issue in the main proceedings to a taxable person in another Member State (P2), by means of an online live streaming platform in another State (P3), as services giving admission to an entertainment event, pursuant to Article 53 of the VAT Directive, with the result that the VAT relating to those services must be collected and paid to the Treasury of the State in which the provider’s registered office is situated, whereas, at an earlier point in time, the same services were classified by the tax authorities of the State in which the recipient of the services is established (P2), by way of a fiscal administrative act which became final in the absence of any judicial challenge, as intra-Community supplies of services covered by the general rule laid down in Article 44 of the VAT Directive? Is it possible for the tax authorities of a State to which the matter is subsequently referred or which are acting on their own initiative to make a legal classification of the cross-border services that are subject to a tax inspection in that State that differs from the legal classification already adopted for the same services, under a fiscal administrative act that has become final in the absence of any judicial challenge, by the tax authorities of the other State to which the matter was originally referred or which acted on their own initiative, thereby giving rise to the double taxation of VAT, or are the tax authorities to which the matter is subsequently referred or which act on their own initiative bound by the legal classification of the cross-border services in question by the tax authorities to which the matter was originally referred, which has become final as a result of the absence of any challenge and is [therefore] not open to judicial review?

(b) In the light of the answer given to the above questions, in a case such as that at issue in the main proceedings, pursuant to the VAT Directive and the principle of the prevention of double taxation, which place is to be regarded as the place of supply of services?

(1) OJ 2006 L 347, p. 1.

(2) Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ 2011 L 77, p. 1).