Request for a preliminary ruling on the validity of Article 9a of Council Implementing Regulation (EU) No. 282/2011

Di Giuseppe Guarente -

(Notes to / commento a British First Tier Tribunal 499 (TC), 15 December 2020 – C-695/20)

Abstract

The last request for a preliminary ruling regarding VAT from the United Kingdom concerns the validity of Article 9a of Council Implementing Regulation (EU) No. 282/2011. The question referred to the Court of Justice of the European Union is whether this provision goes beyond the mere implementation of Article 28 of the Principal VAT Directive. The author seeks to address such a question by analysing the content and purpose of Article 9a and by referring to the case law of the Court of Justice of the European Union on ultra vires acts.

Rinvio pregiudiziale alla Corte di Giustizia sulla validità dell’art. 9a del regolamento del Consiglio n. 282/UE/2011. – L’ultimo rinvio pregiudiziale alla Corte di Giustizia dell’Unione Europea sollevato dal Regno Unito in materia di IVA riguarda la validità dell’art. 9a del regolamento del Consiglio n. 282/UE/2011. La questione sollevata di fronte alla Corte di Giustizia è se la previsione di tale articolo rientri o meno nei limiti della mera applicazione dell’art. 28 della Direttiva IVA. L’autore affronta la questione analizzando il contenuto e il fine dell’art. 9a alla luce della giurisprudenza della Corte di Giustizia sugli atti ultra vires.  

Table of contents: 1. Introduction – 2. Facts of the case – 3. The validity of implementing acts – 3.1. The CJEU’s case law on implementing acts – 4. The legislative framework of Article 28 – 5. The implementing measures of Article 9a IR – 5.1. The nature of the presumption pursutant to Article 9a – 5.2. The purpose of Article 9a – 6. Conclusions

1. In Fenix (Fenix International Ltd v Revenue And Customs [2020] UKFTT 499 (TC) (15 December 2020) the British First Tier Tribunal (“FTT”) made a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”) on the validity of Article 9a of Council Implementing Regulation (EU) No. 282/2011 of 15 March 2011 as amended by Article 1(1)(c) of Council Implementing Regulation (EU) No. 1042/2013 of 7 October 2013, hereafter “Article 9a IR”. Ironic as it may seem, the last preliminary ruling request concerning EU VAT raised by the United Kingdom will require the CJEU to decide on the hierarchy of the sources of European Union law.

2. Fenix operates an online social media platform known as OnlyFans (“the Platform”), whose user base is divided between the “Creators” and the “Fans”. The Creators can populate their profiles on the Platform with their contents (e.g., photographs and videos, as well as stream live videos). The Creators can also send private messages to their Fans. Fans on the other hand can get an access to Creators’ profiles either by making one-off payments or by paying for periodical subscriptions. Fenix’s remuneration for hosting the Platform and handling the payments between Creators and Fans consists of a 20% commission fee on the consideration payable by the Fans to the Creators. Where a Fan pays £100, Fenix retains a commission of £20 and transfers £80 to the Creator. Fenix charged output VAT on the commission retained (i.e., £20). In the case at stake, the UK Revenue Agency (“HMRC”) challenged that Fenix was acting in its own name pursuant to Article 9a IR and assessed Fenix for failing to apply output VAT on the the deemed supplies of services carried out by virtue of Article 28 of the Principal VAT Directive (Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, “PVD”).

3. The question referred by the British FTT is whether the implementing measures adopted by the European Council pursuant to Article 397 PVD and Article 291 of the Treaty on the Functioning of the European Union (“TFEU”) should be considered invalid on the basis that they go beyond the mere implementation of Article 28 PVD. In order to address such a question, one should first make reference to the CJEU’s settled case law on the scope of implementing measures as laid down by Article 291 TFEU.

Some concerns had been raised about the lack of coordination between the PVD and the implementing regulation (Lejeune I. – Cortvriend E.- Accorsi D., European Union – Implementing Measures Relating to EU Place-of-Supply Rules: Are Business Issues Solved and Is Certainty Provided?, in International VAT Monitor, 2011, volume 22, n. 3; Weidmann M., The New EU VAT Rules on the Place of Supply of B2C E-Services, in EC Tax Review, 2015, volume 24, 2) however, it appears that the CJEU has not previously been called to express its view on implementing measures which go further than what should be allowed in the context of the PVD. A overview of the non-VAT related cases where the CJEU has previously addressed this issue (Curtin D. – Weimer M., The Court of Justice of the European Union Supranational Adjudicator and Accountability Forum, in Mc Donnell A. – Kuijper P.J. – Amtenbrink F. – Curtin D. – De Witte B. – Van den Bogaert S. (editedt by), The Law of the European Union, Fifth Edition, 2018, 372) is therefore required, as the principles enshrined in these decisions might be relevant for setting the scene for the judgement in Fenix.

 

3.1. Prior to the Treaty of Lisbon, the concept of implementing provisions was broadly construed (Chamon M., Institutional Balance and Community Method in the Implementation of EU Legislation Following the Lisbon Treaty, in Common Market Law Review, 2016, 53, 1505), covering both “quasi-legislative” acts, i.e., acts which amend or supplement a legislative act, as well as pure implementing acts, i.e., acts providing measures to ensure the application of a legislative act (Ritleng D., The dividing line between delegated and implementing acts: The Court of Justice sidesteps the difficulty in Commission v. Parliament and Council (Biocides), in Common Market Law Review, 2015, 52, 243). Although the CJEU has already clarified that implementing provisions are illegitimate when they affect “essential elements” of a legislative act (CJEU, Case C-25/70, Köster and Chamon M., 1510), it is only with the Treaty of Lisbon that a clear separation of competences between drawing a provision and its implementation was codified according to Article 291 TFEU. Besides, Article 290 TFEU introduced the concept of delegated acts, through which the legislative body (i.e., the European Council) can devolve to the Commission a circumstantiated power to approve quasi-legislative acts.

The concept of “essential elements”, pivotal in drawing the boundaries of implementing measures and hence their legality, was further defined by the CJEU in a number of subsequent cases (CJEU, Case C-363/14, Czech Republic v. Commission and Case C-363/14, Parliament v. Council), including Schengen Borders Code (CJEU, Case C-355/10, Parliament v. Council). Here the CJEU found that the “essential elements” are those subject to political choices, which in this case the Council had taken in passing the contested measure. Using a similar wording, the CJEU found in Multiannual cod plan (Joined cases C-124 & C-125/13, Parliament and Commission v. Council) that a Council regulation had been adopted on a wrong legal basis as the Council had taken policy choices which “appreciably altered” and “substantially amended” the legislative act.

In assessing the legitimacy of implementing measures, the CJEU was also asked to consider whether the contested measure was supplementing or amending essential elements of a legislative act and whether, it should have been passed by way of the different procedure pursuant to Article 290 TFEU (Chamon M., 1525 and Ritleng D., 245). In Biocides (CJEU, Case C-427/12, Commission v. Parliament and Council; see also CJEU, Case C-88/14, Commission v. Parliament and Council), the CJEU clarified that a delegated act should be used “to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act”. On the other hand, an implementing act only allows the Commission “to provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States.”

However, the CJEU also acknowledged the lawmaker’s discretion in choosing between the provisions according to Article 290 and 291 TFEU. Therefore, its judicial review in this area is limited to cases where there has been a manifest error by the lawmaker in choosing one provision over the other (Chamon M., 1521). In Eures network (CJEU, Case C-65/13, Parliament v. Commission),  the CJEU found that implementing measures should be considered valid as long as they are not contrary to the legislative act they refer to, provided that they comply with the “act’s essential general aims” without amending it or supplementing it. The concept of “essential general aims”, whilst echoing the earlier reference to the more objective concept of the act’s “essential elements”, seems to attribute relevance to the purpose that the legislature meant to achieve through the legislative act.

The conclusion that can be drawn from the above cases is that, whilst they provide guidance as to what the CJEU considers implementation, supplementation and amendment respectively, they also indicate that the CJEU applies a strict test when assessing whether an implementing act goes further its limits. This mainly hinges on the discretion that, according to the CJEU, the TFEU granted to the lawmaker in choosing between Article 290 and 291 TFEU, which results in the CJEU’s judicial scrutiny being limited to cases of manifest errors. It also follows from the case law that as long as the implementing act does not change the framework of the legislative act, there is no amendment nor supplementation. In other words, the implementing act should only give practical effect to the legislative act, compared to a delegated act which can introduce further rules provided that these come within the relevant legislative framework (Chamon M., 1528).

Following from the CJEU’s case law on implementing acts, the author will seek to assess the validity of Article 9a IR by applying three tests: a) The legal framework test – The legal framework of Article 28 PVD should be defined to assess whether Article 9a IR goes beyond its mere implementation; b) The purpose test – Pursuant to Article 291 TFEU, it should be assessed whether the purpose of Article 9a IR is the uniform application of the legislative act it relates to, that is Article 28 PVD; c) The manifest error test – If it is established that Article 9a IR fails to pass the first two tests, it should be assessed whether this can amount to a manifest error by the lawmaker, resulting in the implementing measure being invalid.

 

4. The modern economy is caracterised by the presence of supply chains which involve numerous undertakings, including intermediaries. The PVD distinguishes between two archetypes of intermediaries depending on how they interact with the principals involved in a given transaction.

The principal can confer on the intermediary the power to act in his name and on his behalf. In this scenario, the intermediary can carry out one or more legal transactions on behalf of the principal. From a VAT perspective, the principal makes a supply of goods or services to the third party, while the intermediary makes a supply of intermediary services to the principal.

The intermediary may also act  in his name but on behalf of his principal. Under this contractual arrangement, a commission is payable for which the intermediary undertakes to carry out in his own name one or more legal transactions on behalf of the principal (CJEU, Case C-526/13, Fast Bunkering, para.32). Such intermediaries are generally referred to as “commissioners” or “undisclosed agents”, as in this scenario the customer does not know that the counterparty is acting for the account and risk of someone else. For such cases, Article 28 PVD provides that:

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.”

It follows that Article 28 PVD creates a legal fiction whereby two identical supplies of services are provided consecutively. The principal is regarded as making a supply of services to the commissionaire, while the commissionaire is regarded as making a subsequent supply of the same services to the customer. From a VAT perspective, the two (deemed) supplies are the same and therefore, the commissionaire is considered to buy and sell the same services, rather than providing (intermediary) services to its principal (Nellen F. – van Doesum A. – Cornielje S. – van Kesteren H., Fundamentals of EU VAT Law, Wolters Kluwer, 2020, 130). The rationale behind this VAT regime lies in the fact that, compared to an agent, the commissionaire can only assume contractual obligations towards third parties in his own name. The VAT regime is therefore reflective of the contractual relationships arising between the parties involved in the transaction. The commissionaire is contractually required to supply or entitled to receive services to or from the third party, while the principal is in turn contractually required to supply or entitled to receive the same services to or from the commissionaire (Belli Contarini E., Profili tributari del contratto di mandato senza rappresentanza, in Rivista di Diritto Tributario, 1997, 7-8, I, 518). In this context, there is no contractual relationship between the principal and the third party (Cameli S., L’imposta sul valore aggiunto e le obbligazioni di fare nel contratto di mandato, in Rassegna Tributaria, 2010, 3, 775). As the commissionaire supplies or receives the same services that the principal supplies to or receives from the commissionaire, it is in line with the principle of neutrality for the services to be subject to the same VAT treatment (Cameli S., 776; Castaldi L., Le operazioni imponibili, in Tesauro F. (a cura di), Giurisprudenza sistematica di diritto tributario, Torino, 2001, 63; Italian Ministry of Finance, Resolution 11 February 1998, n. 6 and 27 September 1999, n. 146).

It also stems from the word of Article 28 PVD that for the legal fiction to apply it is essential to assess the intermediary’s capacity. In this regard and based on the CJEU case law, it is firstly necessary to examine the contractual arrangements between the parties, provided that these are aligned with the economic reality (CJEU, Case C-464/10, Henfling; see also Claessens S. – Corbett T., Intermediated Delivery and Third-Party Billing: Implications for the Operation of VAT Systems around the World, in Lang M.- Lejeune I., VAT/GST in a Global Digital Economy, Eucotax, 2015, 73). Where there is a discrepancy between the formal words of the contracts and the economic reality, the latter should prevail for VAT purposes (Henfling; CJEU Case C-163/91, Van Ginkel; Beretta G., European VAT and the Sharing Economy, Eucotax, 2019, 288). It follows from the CJEU’s case law that, although the wording of Article 28 “is couched in general terms, without containing restrictions as to its scope or its extent” (Henfling, para. 36; Sirri M. -Zavatta R., La Corte europea “certifica” l’esenzione per le prestanzioni dei commissionari, in Rivista di giurisprudenza tributaria, 2011, 11, 933), its application remains subject to the review of the contractual arrangements and the economic reality. In other words, the case law of the CJEU does not seem to provide that, recurring certain factors, it should be assumed that Article 28 PVD is in point, regardless of the relevant the contractual arrangements and the economic reality.

In defining the legal framework of Article 28 PVD, reference should also be made to the case law concerning Article 14(2)(c) PVD aimed at governing the supply of goods with the intervention of a commissionaire. Article 14(2)(c) PVD and Article 28 PVD have the same ratio legis (Nellen F. – van Doesum A. – Cornielje S. – van Kesteren H., 144), as Article 14(2)(c) PVD provides for the supply of goods what Article 28 PVD provides for the supply of services. Under Article 14(2)(c), “the transfer of goods pursuant to a contract under which commission is payable” is treated as a supply of goods. It follows that for VAT purposes the intermediary acting in its own name but on behalf of the principal is treated as buying the goods and making an onward supplies of these to the customers. However, in applying the principle of economic reality, the CJEU found in FBK (CJEU, Case C-526/13, Fast Bunkering) that although the intermediary was prima facie acting as a commissionaire, the principal had to be regarded as making the supply of goods directly to the final customer and the interemediary skipped for VAT purposes (Nellen F. – van Doesum A. – Cornielje S. – van Kesteren H., 131). In FBK, two transactions were concluded from a contractual perspective: the sale by FBK of fuel for seagoing vessels to the commissionaires, and the sale by the commissionaires to the vessel operators. In accordance with the Free On Board (i.e., FOB) clause, for both transactions the ownership of the goods was transferred at the time of the actual loading of the fuel by FBK to the vessel operators (Peirolo M., La non imponibilità IVA delle operazioni di bunkeraggio, in Corriere Tributario, 2015, 39, 3995).

The CJEU found that the ownership of the fuel was only formally transferred to the commissionaries, who “have at no time been in a position to dispose of the quantities supplied, since the power to dispose of the fuel belonged to the operators of the vessels as soon as FBK had loaded it” (CJEU, Case C-526/13, para.50). Based on the concept of “supply of goods” as laid down by Article 14 PVD, the CJEU disregarded the contractual classifications of the transactions between the parties and found that for VAT purposes the supply was made by FBK directly to the vessel operators (CJEU, Case C-526/13, para.51; van Doesum A. – Nellen F., Economic Reality in EU VAT, in EC Tax Review, 2020, 5, 220; Peirolo M., 3995). Whilst the decisions reached in this case was highly dependent on the specific facts, it shows that the application of the legal fiction provided in this case by Article 14(2)(c) PVD remains subject to the review of the contractual arrangements and the economic reality of the transaction.

Having defined the legislative framework of Article 28 PVD, it is now possible to scrutinise how the implementing provision pursuant to Article 9a IR seeks to give practical effect to Article 28 PVD and whether it aims at ensuring its uniform application throughout the European Union.

5. Article 9a IR provides that where electronic services are supplied by way of a telecommunications network, an interface, or a portal, such as a marketplace for application, the “taxable person taking part in the supply shall be presumed to be acting in his own name but on behalf of the provider of those services”. The scope of Article 9a IR does not cover telecommunications and broadcasting services, nor any other type of goods or services delivered through intermediaries. The presumption provided by Article 9a IR is theoretically rebuttable (i.e., iuris tantum) and it has been noted that if it were not so, it would have been exposed to challenge of legality for going beyond the wording of Article 28 PVD (Claessens S. – Corbett T., 77).

The presumption can be rebutted where (i) the original services provider is explicitly indicated as the supplier by a taxable person taking part in the supply and (ii) this is reflected in the contractual arrangements between the parties. Article 9a IR also provides that the presumption cannot be rebutted where (a) the intermediary authorises the charge for the electronic services to the final customer or (b) the delivery of the services or (c) sets the general terms and conditions of the supply of the electronic services. It is sufficient for one of the three conditions to be met for the presumption pursuant to Article 9a IR to apply, regardless of the word of the contractual arrangements or the economic reality of the transaction (Claessens S. – Corbett T., 71). The wording of Article 9a IR already seems to suggest that, rather than being purely rebuttable, the presumption thereof should at least be classified as hybrid in nature.

5.1. A question arises as to whether, despite the formally rebuttable nature of the presumption laid down by Article 9a IR, it is in practice impossible for platforms involved in supply chains of electronically supplied services not to fall in the scope of such a provision.

As a starting point, it should be noted that presumptions like the one laid down by Article 9a IR are policy instruments in the hands of the legilastor. Compared to other taxes, the mechanism of VAT is handled by taxable persons involved in supply chains, who collect tax on behalf of the treasury. Therefore, the compliance with the applicable VAT legislation often depends on the taxable person having access to the correct information. Whilst presumptions are effective instruments to counter horizontal tax information asymmetries (i.e., asymmetries between taxable persons as opposed to asymmetries between tax authorities and taxable persons), they should not be used extensively as they may alter the substantive norms of taxation. This can potentially be the case of Article 9a IR, as it reshapes the entire supply chain in lieu of the substantive VAT rules otherwise applicable (Nellen F., Information Asymmetries in EU VAT, Eucotax, 2017, 110-111). This undesirable outcome is mitigated where the taxable person is practically able to rebut the presumption.

As outlined above, the first condition for the presumption provided by Article 9a IR to be rebutted is that “the original services provider is explicitly indicated as the supplier by a taxable person taking part in the supply”. According to “Explanatory notes on the EU VAT changes to the place of supply of telecommunications broadcasting and electronic services that enter into force in 2015 (Council Implementing Regulation (EU) No 1042/2013)” (European Commission, 3 April 2014), hereafter referred to as the “Explanatory Notes”, this entails that (i) the service provider (i.e., the Creator in the case of Fenix) is identified on the VAT invoice issued by the intermediary platform as the supplier of the services as well as (ii) on the bill of receipt issued to the final customer (i.e., the Fan). Further, the relevant contractual arrangements must reflect the relationships between the parties. Whilst these requirements introduce an administrative burden for the intermediary platform, they do not appear unduly burdensome for the purposes of rebutting the presumption pursuant to Article 9a IR.

However, one may take in to account the exclusions introduced by the last part of paragraph 1 of Article 9a IR, which provides that the presumption cannot be rebutted if (a) the intermediary authorises the charge for the electronic services to the final customer or (b) the delivery of the services or (c) sets the general terms and conditions of the supply of the electronic services. According to the Explanatory Notes, the “authorisation of the charge to the customer” refers to the situation where the intermediary is the one able to authorise the customer’s bank account to be debited as payment for the service. The Explanatory Notes explicitly state that the first two exclusions are likely to apply to intermediary platforms. Lastly, the presumption becomes irrebuttable also where the intermediary sets out the terms and conditions the final customer has to agree to in order to purchase the services through the platform (European Commission, 34).

As indicated by the Commission, the three activities which render the presumption irrebuttable are likely to be performed by intermediary platforms. The main reason why suppliers rely on intermediary platforms is not simply because of the act of the intermediation, but arguably because of the infrastructure offered by such platforms. The average supplier relying on the platform would generally lack the resources to manage operations such as the authorisation of payments or the setting of the terms and conditions. Therefore, the supplier outsources said operations to an external provider, that is the platform. A supplier able to manage such operations autonomously would likely not be inclined to pay a fee to a third-party supplier, let alone requiring support in delivering its services.

On this basis, it appears that the business model of intermediary platforms de facto prevents them from rebutting the presumption provided by Article 9a IR. By excluding certain undertakings – i.e., platforms operating in the supply chain of electronically supplies services – from being regarded as true agents from a VAT perspective, irrespective of the contractual arrangements and the economic reality, it appears that Article 9a IR introduces a fiscal policy decision in relation to the collection and remittance of the VAT for a specific segment of the economy. Whilst this is in principle a decision that the lawmaker is entitled to introduce, the question is whether it is in line with the purpose of an implementing act pursuant to Article 290 TFEU.

5.2. As an implementing measure pursuant to Article 291 TFEU and Article 397 PVD, Article 9a IR should aim at providing the uniform application of the legislative act it refers to, thus Article 28 PVD. However, according to the Commission, the purpose of Article 9a IR is to “provide legal certainty” and ensure the “collection of the tax” by defining who should be responsible for the collection of VAT in complex and stretched supply chains of electronic supplies (Value Added Tax Committee, New Legislation – Matters Concerning the Implementation of Recently Adopted EU VAT Provisions, Working Paper No 885). Furthermore, the Commission noted that a broad application of Article 9A IR is desirable “in the interest of simplicity”, which also found the general consensus in the Council (Value Added Tax Committee, 3).

It therefore appears that, in drawing Article 9a IR, the Commission aimed at defining a system of collection of VAT which, in the context of platforms intervening in supply chains of electronic services, deviates from the default position whereby the primary supplier of the services (i.e., the principal) is responsible for such an essential exercise. Defining who is liable for the collection and remittance of the VAT is ultimately a policy decision lying with the lawmaker, who can decide that such an obligation should be borne by a party other than the supplier. This is notably the case of cross-border B2B supply of services, where the liability for the collection and remittance of the VAT is shifted on the customer. A third alternative is the “intermediary collection model”, which has been commented by the OECD (OECD, The Role of Digital Platforms in the Collection of VAT/GST on Online Sales, OECD Publishing, 2019). Here the responsibility for the collection and remittance of the VAT lies with the intermediary between the supplier and customer (Beretta G., 275). Although VAT as a consumption tax it is ultimately borne by the final consumers, it is commonly acknowledged that one of its most appreciable features is that the liability for its material collection lies only with the taxable persons. As a result, the audit of the tax authorities can focus exclusively on fewer actors in the supply chain. Under the “intermediary collection model” the collection of the VAT is even more streamlined as it is centralised in the platform itself, rather than lying with the taxable persons using on the platform (Beretta G., 275 and Duy Nguyen, Comments on the Discussion of Article 9a of Implementing regulation 1042/2013, in Lang M. – Lejeune I., 80). Also, centralising the collection of VAT arguably results in an even broader tax base. This is on the basis that due to the size of their business, in the overwhelming majority of cases suppliers providing their services through online platforms would normally operate below the applicable VAT registration threshold.

6. In light of the above, it appears that Article 9a IR does not comply with the legislative framework test as defined in section 3 of this article. This conclusion is grounded on the basis that, although the wording Article 28 PVD “is couched in general terms, without containing restrictions as to its scope or its extent”, this should not be interpreted as meaning that, recurring certain factors, the legal fiction deriving from such a provision applies. As per all the provisions deriving from the PVD, the contractual arrangements and the economic reality of the transaction remain at all times the starting point in assessing whether Article 28 PVD is in point. The findings set out in section 5.1 above indicate that the last paragraph of Article 9a IR renders the presumption thereof practically irrebuttable for intermediary platforms. It follows that Article 9a IR treats certain intermediaries as commissioners, irrespective of the contractual arrangements and the economic reality of the transaction. As such, Article 9a IR seems to assume substative nature and to amend Article 28 PVD, rather than merely implementing such a provision and ensuring its uniform application throughout the EU. It also appears that Article 9a IR fails to meet the purpose test as defined in section 3 above. The purpose of the implementing provision seems to “provide legal certainty”, ensure “collection of the tax” and achieve “simplicity”, rather than achieving the uniform application of Article 28 PVD throughout the European Union. Article 9a IR arguably achieves such objectives, although by having a radical impact on how VAT applies to supply chains of electronically supplied services. Also, whilst such objectives obviously maintain a legitimate standing from a fiscal policy perspective, they should be pursued through the appropriate legal instruments. If the lawmaker wished to achieve “simplicity”, “legal certainty” and to amend the system of collection and remittance of VAT, it should not have pursued that goal by means of an implementing measure pursuant to Article 291 TFEU. In this regard, it is interesting to note the reform of Article 14 PVD whereby, with effect from 1 January 2021, intermediary platforms facilitating distances sales of goods imported from third territories or third countries in consignments of an intrinsic value not exceeding EUR 150 will be deemed as the supplier of those goods to the customer. Similarly to Article 9a IR, such rules aim at achieving fiscal policy objectives, that is shifting the liability for the collection and remittance of VAT on intermediary platforms, thus ensuring the effective and efficient collection of the tax (Beretta G., 285). However, compared to Article 9a IR, such radical reform has been introduced by way of an amendment to the word of the PVD (Council Directive (EU) 2017/2455, 5 December 2017 amending Directive 2006/11/EC and Directive 2009/132/EC as regards Certain Valued Added Tax Obligations for Supplies of Services and Distance Sales of Goods, OJ L 348/7, 29 December 2017).

In light of the above, the author argues that both the legislative framework test and the purpose test are not met by Article 9a IR. The wording of the amendments introduced by Article 9a IR, which have been described by the FTT judge Anne Scott as introducing a “sea change” to Article 28 PVD (see para.144 of Fenix), in conjunction with the fiscal policy purpose of Article 9a IR, seem to suggest that in passing this formally implementing measure the lawmaker has incurred in a manifest error, which could lead the CJEU to conclude that the provision is invalid.

ESSENTIAL BIBLIOGRAPHY

Belli Contarini E., Profili tributari del contratto di mandato senza rappresentanza, in Rivista di Diritto Tributario, 1997, 7-8, I, 517

Beretta G., European VAT and the Sharing Economy, Eucotax, 2019

Cameli S., L’imposta sul valore aggiunto e le obbligazioni di fare nel contratto di mandato, in Rassegna Tributaria, 2010, 3, 771

Castaldi L., Le operazioni imponibili, in Tesauro F. (a cura di), Giurisprudenza sistematica di diritto tributario, Torino, 2001

Chamon M., Institutional Balance and Community Method in the Implementation of EU Legislation Following the Lisbon Treaty, in Common Market Law Review, 2016, 53

Claessens S. – Corbett T., Intermediated Delivery and Third-Party Billing: Implications for the Operation of VAT Systems around the World, in Lang M. – Lejeune I., VAT/GST in a Global Digital Economy, Eucotax, 2015

Curtin D. – Weimer M., The Court of Justice of the European Union Supranational Adjudicator and Accountability Forum, in Mc Donnell A. – Kuijper P.J. – Amtenbrink F. – Curtin D. – De Witte B. – Van den Bogaert S. (editedt by), The Law of the European Union, Fifth Edition, 2018

Duy Nguyen, Comments on the Discussion of Article 9a of Implementing regulation 1042/2013, in Lang M. – Lejeune I., VAT/GST in a Global Digital Economy, Eucotax, 2015

European Commission, Explanatory notes on the EU VAT changes to the place of supply of telecommunications broadcasting and electronic services that enter into force in 2015 (Council Implementing Regulation (EU) No 1042/2013), 3 April 2014

Lejeune I. – Cortvriend E. -Accorsi D., European Union – Implementing Measures Relating to EU Place-of-Supply Rules: Are Business Issues Solved and Is Certainty Provided?, in International VAT Monitor, 2011, volume 22, n. 3

Nellen F., Information Asymmetries in EU VAT, Eucotax, 2017

Nellen F. – van Doesum A. – Cornielje S. – van Kesteren H., Fundamentals of EU VAT Law, Second Edition, 2020

Peirolo M., La non imponibilità IVA delle operazioni di bunkeraggio, in Corriere Tributario, 2015, 39, 3995

OECD, The Role of Digital Platforms in the Collection of VAT/GST on Online Sales, OECD Publishing, 2019

Ritleng D., The dividing line between delegated and implementing acts: The Court of Justice sidesteps the difficulty in Commission v. Parliament and Council (Biocides), in Common Market Law Review, 2015, 52

Sirri M. – Zavatta R., La Corte europea “certifica” l’esenzione per le prestanzioni dei commissionari, in Rivista di giurisprudenza tributaria, 2011, 11, 931

Value Added Tax Committee, New Legislation – Matters Concerning the Implementation of Recently Adopted EU VAT Provisions, Working Paper No 885

van Doesum A. – Nellen F., Economic Reality in EU VAT, in EC Tax Review, 2020, 5, 213

Weidmann M., The New EU VAT Rules on the Place of Supply of B2C E-Services, in EC Tax Review, 2015, volume 24, 2

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