Judgment of the Court of Justice Grand Chamber, 28 February 2023, Fenix International, C‑695/20

• Date: 28 February 2023
• Year: 2023

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undertakings responsible for the conduct that constitutes an infringement found by the Commission,

are not, in themselves, relevant for the purpose of assessing whether it is permissible for the national

court to undertake an estimation of the harm pursuant to Article 17(1) of Directive 2014/104. In the

latter regard, the Court recalls in particular the case-law principle,

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confirmed by Article 11 of

Directive 2014/104, according to which an infringement of competition law entails, in principle, the

joint and several liability of the infringers.

IV. FISCAL PROVISIONS: TRANSACTIONS SUBJECT TO VAT

Judgment of the Court of Justice (Grand Chamber), 28 February 2023, Fenix International,

C‑695/20

Link to the full text of the judgment

Reference for a preliminary ruling – Implementing power of the Council of the European Union – Article

291(2) TFEU – Common system of value added tax (VAT) – Directive 2006/112/EC – Articles 28 and 397 –

Taxable person, acting in his or her own name but on behalf of another person – Provider of services by

electronic means – Implementing Regulation (EU) No 282/2011 – Article 9a – Presumption – Validity

Fenix International Ltd (‘Fenix’), a company registered for value added tax (VAT) purposes in the

United Kingdom, operates on the internet a social media platform known as Only Fans. That platform

is offered to ‘users’ throughout the world, who are divided into ‘creators’ and ‘fans’. Each creator has a

‘profile’ to which he or she uploads and publishes content, such as photos, videos and messages,

which fans can access by making ad hoc payments or by paying a monthly subscription. Fenix sets the

minimum amount payable both for subscriptions and for tips and the general terms and conditions

for use of the platform. In addition, Fenix provides the means of enabling financial transactions to be

carried out. Fenix is responsible for collecting and distributing the payments made by fans through a

payment services supplier. Fenix levies 20% on any sum paid to a creator and applies VAT at a rate of

20% on the sum which it levies in this way, which appears on the invoices which it issues. All payments

appear on the relevant fan’s bank statement as payments made to Fenix.

In VAT assessments for the VAT due for the months of July 2017 to January 2020 and April 2020, taking

the view that Fenix had to be deemed to be acting in its own name,

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HMRC required that Fenix pay

VAT on all of the sum received from a fan and not only on the 20% of that sum which it levied by way

of remuneration.

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Judgment of 29 July 2019, Tibor-Trans (C-451/18, EU:C:2019:635, paragraph 36).

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Under the first subparagraph of Article 9a(1) of 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), as amended by Council

Implementing Regulation (EU) No 1042/2013 of 7 October 2013 (OJ 2013 L 284, p. 1), a taxable person taking part in the supply of

electronically supplied services through a telecommunications network, an interface or a portal such as a marketplace for applications, is to

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’. The second subparagraph of that

provision requires two conditions to be satisfied ‘in order to regard the provider of electronically supplied services as being explicitly

indicated as the supplier of those services by the taxable person’. Lastly, according to the third subparagraph of that provision, ‘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 s upplier of those

services.’