Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

4 July 2024 (*)

(Reference for a preliminary ruling – Value added tax (VAT) – Directive 2006/112/EC – Taxable transactions – Supply of services for consideration – Management fees collected by a collective management organisation for copyright and related rights for the collection, distribution and payment of remuneration due to rightholders – Remuneration not forming part of a taxable transaction)

In Case C‑179/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), made by decision of 15 November 2022, received at the Court on 21 March 2023, in the proceedings

Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (Credidam)

v

Guvernul României,

Ministerul Finanțelor,

THE COURT (Seventh Chamber),

composed of F. Biltgen, President of the Chamber, A. Prechal (Rapporteur), President of the Second Chamber, acting as Judge of the Seventh Chamber, and M.L. Arastey Sahún, Judge,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (Credidam), by S. Brăileanu, A.-M. Gheorghişan and M. Niculeasa, avocaţi,

–        the Romanian Government, by E. Gane, R.I. Haţieganu and A. Rotăreanu, acting as Agents,

–        the European Commission, by A. Armenia and M. Herold, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 24(1) and Article 25(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2        The request has been made in proceedings between Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (Credidam), on the one hand, and the Guvernul României (Romanian Government) and the Ministerul Finanțelor (Ministry of Finance, Romania), on the other, concerning a legislative amendment imposing value added tax (VAT) on the activity of collective management organisations for copyright and related rights in relation to the collection, distribution and payment of remuneration due to the holders of those rights, where that remuneration does not fall within the scope of the VAT Directive.

 Legal context

 European Union law

 The VAT Directive

3        Article 2(1)(c) of the VAT Directive provides:

‘The following transactions shall be subject to VAT:

…

(c)      the supply of services for consideration within the territory of a Member State by a taxable person acting as such’.

4        Under Article 9(1) of that directive:

‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

5        Under Article 24(1) of that directive:

‘“Supply of services” shall mean any transaction which does not constitute a supply of goods.’

6        Article 25 of the VAT Directive is worded as follows:

‘A supply of services may consist, inter alia, of one of the following transactions:

…

(c)      the performance of services in pursuance of an order made by or in the name of a public authority or in pursuance of the law.’

7        Article 28 of that directive states:

‘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.’

8        Under Article 73 of that directive:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

 Directive 2014/26/EU

9        Article 3 of Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ 2014 L 84, p. 72) provides:

‘For the purposes of this Directive, the following definitions shall apply:

(a)      “collective management organisation” means any organisation which is authorised by law or by way of assignment, licence or any other contractual arrangement to manage copyright or rights related to copyright on behalf of more than one rightholder, for the collective benefit of those rightholders, as its sole or main purpose, and which fulfils one or both of the following criteria:

(i)      it is owned or controlled by its members;

(ii)      it is organised on a not-for-profit basis;

…

(h)      “rights revenue” means income collected by a collective management organisation on behalf of rightholders, whether deriving from an exclusive right, a right to remuneration or a right to compensation;

(i)      “management fees” means the amounts charged, deducted or offset by a collective management organisation from rights revenue or from any income arising from the investment of rights revenue in order to cover the costs of its management of copyright or related rights;

…’

 Romanian law

 The Tax Code

10      Article 268 of Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code; ‘the Tax Code’), entitled ‘Taxable transactions’, provides:

‘1.      Transactions that fulfil the following cumulative conditions shall be taxable in Romania for VAT purposes:

(a)      transactions which, within the meaning of Articles 270 to 272, constitute or are treated as a supply of goods or services, which is subject to VAT, for consideration;

…’

11      Article 271 of the Tax Code, entitled ‘Supply of services’, provides:

‘1.      A supply of services shall mean any transaction which does not constitute a supply of goods as defined in Article 270.

2.      Where a taxable person acting in his or her own name but on behalf of another person takes part in a supply of services, he or she shall be deemed to have received and supplied those services himself or herself.

3.      Supplies of services include transactions such as:

(a)      the letting or making available of goods under a financial leasing contract;

(b)      the assignment of intangible property, whether or not the subject of a document establishing title, inter alia: the transfer and/or assignment of copyright, patents, licenses, trademarks and other similar rights;

(c)      the undertaking not to engage in an economic activity, not to enter into competition with another person or to tolerate an act or situation;

(d)      the performance of services in pursuance of an order made by or in the name of a public authority or in pursuance of the law;

(e)      services performed by intermediaries acting in the name and on behalf of other persons, where they take part in a supply of goods or services.’

 Law No 8/1996

12      Article 144 of Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights), in the version applicable to the dispute in the main proceedings (Monitorul Oficial al României, Part I, No 489 of 14 June 2018; ‘Law No 8/1996’), states:

‘1.      The author or holder of a copyright or related right shall exercise the rights conferred on him or her by this Law individually or collectively, in compliance with the provisions of this Law.

…’

13      Article 145 of Law No 8/1996 provides:

‘1.      Collective management shall be compulsory in order to exercise the following rights:

(a)      the right to remuneration for private copying;

(b)      the right to equitable remuneration for the public lending provided for in Article 18(2);

(c)      right of broadcasting musical works;

(d)      the right to a single equitable remuneration for performers and phonogram producers for the communication to the public and broadcasting of phonograms published for commercial purposes or of reproductions thereof;

(e)      the right of cable retransmission;

(f)      the right of retransmission;

(g)      the right to fair compensation for orphan works.

2.      In respect of the categories of rights referred to in paragraph 1, collective management organisations shall also represent holders of rights who have not commissioned them to do so.’

14      Article 150 of that law provides:

‘1.      Collective management organisations shall be, for the purposes of this Law, legal persons constituted by free association, the sole or main purpose of which is the management of copyright or rights related to copyright, categories of rights, types of works or other protected subject matter, which is entrusted to them by a number of authors or copyright holders for the collective benefit of those rightholders.

2.      … neither copyright nor related rights nor the exercise of such rights may be transferred or assigned to the collective management organisations.

3.      For the purposes of paragraph 1, the collective management of rights, categories of rights, types of works or other protected subject matter shall include the granting of licences, the monitoring of the use of the rights or types of works managed, ensuring compliance with those rights, the collection, distribution and payment of sums due to authors or holders of copyright or related rights from remuneration paid in respect of the use of managed rights or investment of revenues derived from those rights.’

15      Article 169 of that law provides:

‘1.      Collective management shall be exercised according to the following rules:

…

(b)      royalties paid to collective management organisations is not revenue of those organisations, nor can it be treated as such;

…

(d)      the amounts collected by a collective management organisation shall be distributed and paid to its members …

…

(h)      the management fee shall be the percentage withheld from authors or rightholders on royalty income or any revenue from the investment of royalty income to cover all the costs incurred in the operation of the collective management organisation, collection, distribution and payment of remuneration. The fee due by members and rightholders directly linked to the collective management organisation shall be deducted at the time of distribution and shall not exceed 15% of the sums distributed individually …’

 The detailed rules for implementing Law No 227/2015 establishing the Tax Code, approved by Government Decision No 1/2016

16      Paragraph 8(12) and (13) of Title VII of the Normele metodologice de aplicare a Legii nr. 227/2015 privind Codul fiscal, aprobate prin Hotărârea Guvernului nr. 1/2016 (the detailed rules for implementing Law No 227/2015 establishing the Tax Code, approved by Government Decision No 1/2016), of 6 January 2016 (Monitorul Oficial al României, Part I, No 22 of 13 January 2016), as amended by Hotărârea Guvernului nr. 354/2018 pentru modificarea și completarea Normelor metodologice de aplicare a Legii nr. 227/2015 privind Codul fiscal, aprobate prin Hotărârea Guvernului nr. 1/2016 (Government Decision No 354/2018 amending and supplementing the detailed rules for implementing Law No 227/2015 establishing the Tax Code, approved by Government Decision No 1/2016), of 16 May 2018 (Monitorul Oficial al României, Part I, No 442 of 25 May 2018), provides:

‘12.      Under Article 271 of the Tax Code, holders of reproduction rights do not supply services, within the meaning of VAT, to producers and importers of blank media and of recording and reproduction devices from whom organisations collectively managing copyright and related rights collect, on behalf of those rightholders, but in their own name, remuneration from the sale of those devices and media. Article 271(2) of the Tax Code does not apply to the collection of remuneration for private copying, since it does not constitute consideration for a supply of services falling within the scope of VAT. Collective management organisations shall supply services falling within the scope of the tax for the benefit of holders of reproduction rights, the consideration for which is the management commission deducted from the sums collected.

13.      Article 271(2) of the Tax Code shall apply to amounts other than those referred to in paragraph 12, collected by collective management organisations for copyright and related rights, arising from managed rights.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

17      Credidam is a collective management organisation for copyright and related rights carrying on its activity in the form of an association of performers. Its purpose is, in particular, to collect and distribute the remuneration due to performing artists by the users of their artistic services. It collects, on that basis, a management fee which is intended to cover its operating costs and is deducted from that remuneration.

18      On 20 July 2018, Credidam brought an action before the Curtea de Apel București (Court of Appeal, Bucharest, Romania) against the Romanian Government, seeking annulment of Government Decision No 354/2018 amending and supplementing the rules for implementing the Tax Code in so far as it incorporated the provisions of Paragraph 8(12) and (13) of Title VII of the detailed rules for implementing Law No 227/2015 establishing the Tax Code, approved by Government Decision No 1/2016, provisions referred to in paragraph 16 of the present judgment (‘the contested provisions’). Those provisions provide, inter alia, that remuneration for private copying collected by collective management organisations on behalf of rightholders does not fall within the scope of VAT, but the management fees deducted by those bodies from that remuneration are subject to VAT.

19      In support of its claims, Credidam submitted that the contested provisions were contrary to the VAT Directive, as interpreted by the Court of Justice in its judgment of 18 January 2017, SAWP (C‑37/16, EU:C:2017:22), and by the national courts, as regards the identification of the transactions of collective management organisations subject to VAT, in particular by including the management fees deducted by those organisations from the remuneration due to rightholders.

20      By judgment of 21 May 2019, the Curtea de Apel București (Court of Appeal, Bucharest) upheld Credidam’s action and annulled the contested provisions. According to that court, the management fees of management bodies are ancillary to the remuneration of rightholders from which they are deducted, with the result that, where that remuneration does not fall within the scope of the VAT Directive, such as the remuneration for private copying, the same must apply to the management fees related thereto.

21      The Romanian Government and the Ministry of Finance, which intervened in support of the Romanian Government at first instance, brought an appeal before the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), which is the referring court. In support of their appeal, they submit that the contested provisions correctly identified the transactions of the collective management organisations subject to VAT, in particular as regards those management fees.

22      Before that court, the Romanian Government and the Ministry of Finance submit that those provisions, in so far as they provide that collective management organisations are liable to pay VAT and that the management fees which they collect from rightholders represent consideration for a service supplied to those rightholders, comply with EU law and also correspond to the guidelines of the VAT Committee adopted at its 111th meeting of 30 November 2018. They state, in addition, that the Court, in its judgment of 18 January 2017, SAWP (C‑37/16, EU:C:2017:22), did not rule on the question as to whether such fees are subject to VAT.

23      Credidam, for its part, argues that the management fees deducted from remuneration that is not subject to VAT – which remuneration includes, moreover, not only the remuneration for private copying, but also fair remuneration for other categories of copyright and related rights – do not fall within the scope of the VAT Directive either, in so far as those fees are ancillary to such remuneration and therefore follow their tax regime.

24      According to Credidam, in any event, even if those fees were not ancillary, they could not be regarded as consideration for a service, since there is no legal relationship between collective management organisations and the rightholders in which there is reciprocal performance, since the obligation to pay the same fees is imposed by law, which also determines the amount of those fees as a percentage of that remuneration.

25      The referring court observes that, although it is in a position, on the basis of the case-law of the Court of Justice, to rule on the tax scheme to be applied to the remuneration collected by collective management organisations on behalf of rightholders, that is not the case of the scheme applicable to management fees deducted from that remuneration.

26      In that regard, in the first place, the referring court starts from the premiss that collective management organisations are taxable persons within the meaning of the VAT Directive, in that they carry out an economic activity that consists principally in representing the interests of the rightholders whose repertoire they manage, and in acting as intermediaries in the legal relationships between rightholders and end users.

27      That court is uncertain, however, whether such management transactions carried out vis-à-vis rightholders constitute a supply of services for consideration, within the meaning of that directive, given that the management fees deducted in respect of those transactions are due by law, irrespective of whether the collective management of rights is mandatory or optional and whether or not the rightholders are members of the collective management organisation.

28      That court specifies, in the second place, that, in a situation such as that at issue in the case which gave rise to the judgment of 21 January 2021, UCMR – ADA (C‑501/19, EU:C:2021:50), in which a collective management organisation took part in, within the meaning of Article 28 of the VAT Directive, a supply of services carried out by the rightholder for the benefit of the end user, the collective management organisation must send the end users an invoice including the VAT calculated on the total amount of remuneration collected by that organisation, including the percentage of that remuneration corresponding to the management fee. In such a situation, the management fee is subject to VAT as part of the remuneration collected on behalf of the rightholders.

29      The question arises, however, in the view of the referring court, as to whether the management fee also falls within the scope of the VAT Directive where the remuneration to which it relates is not consideration for a supply of services subject to VAT, such as remuneration for private copying. In such a situation, the referring court does not rule out that the collective management organisation may benefit, in respect of that fee, from the same tax scheme as that applicable to the remuneration itself, by analogy with the solution found in the judgment of 14 July 2011, Henfling and Others (C‑464/10, EU:C:2011:489, paragraph 36), according to which the legal relationship between the principal and the commission agent is exempt from VAT where the supply of services in which the commission agent takes part is itself exempt from VAT.

30      Thus, according to the referring court, it is necessary to determine whether, assuming that the management fee deducted by the collective management organisation constitutes consideration for a transaction which is distinct from the transaction consisting in the collection of the remuneration due to the rightholder, the former transaction is, in relation to the latter transaction, independent or ancillary in nature.

31      In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does the collection, distribution and payment of remuneration by collective management organisations, in return for a fee, constitute a supply of services, within the meaning of Article 24(1) and Article 25(c) of [the VAT Directive], to copyright holders and holders of related rights?

(2)      If the first question is answered in the affirmative, does the work that collective management organisations do for rights holders constitute a supply of services within the meaning of the [VAT Directive] even if the [rightholders], on whose behalf collective management organisations collect remuneration, are not deemed to be providing a service to the users who are required to pay that remuneration?’

 Consideration of the questions referred

32      It is apparent from the explanations provided by the referring court, as summarised in paragraphs 28 and 29 of the present judgment, that its questions concern the tax treatment to be accorded, for the purposes of the VAT Directive, to the management activity carried out by a collective management organisation for copyright and related rights for the benefit of the rightholders concerned, in the event that that activity is unrelated to any taxable transactions carried out by those rightholders.

33      In those circumstances, it must be held that, by its two questions, which it is appropriate to examine together, the referring court wishes to ascertain, in essence, whether Article 2(1)(c), Article 24(1) and Article 25(c) of the VAT Directive must be interpreted as meaning that a collective management organisation for copyright and related rights supplies services, within the meaning of those provisions, where, first, it collects, distributes and pays, by law, to rightholders the remuneration owed to them by certain users defined by law and, secondly, it deducts from that remuneration a management fee which is due to it by those rightholders and which is intended to cover the costs incurred by that activity, in the event that the remuneration thus collected on behalf of those rightholders does not constitute consideration for services supplied, within the meaning of that directive, by those rightholders for the benefit of those users.

34      In accordance with Article 2(1)(c) of the VAT Directive, the supply of services for consideration within the territory of a Member State by a taxable person acting as such is to be subject to VAT. Furthermore, under Article 24(1) of that directive, any transaction which does not constitute a supply of goods is to be considered to be a supply of services. Article 25 of that directive sets out an indicative list of three transactions constituting supplies of services, including in point (c) thereof, consisting in the performance of services in pursuance of an order made by or in the name of a public authority or in pursuance of the law.

35      Since the referring court has taken the view that the collection, distribution and payment transactions at issue in the main proceedings form part of an economic activity carried out by the collective management organisation concerned as a taxable person, within the meaning of Article 9(1) of the VAT Directive, its uncertainties relate to whether, in the first place, the services thus carried out are ‘for consideration’ within the meaning of Article 2(1)(c) of that directive.

36      In that regard, it follows from settled case-law that the possibility of classifying a supply of services as a transaction for consideration requires only that there be a direct link between that supply and the consideration actually received by the taxable person. Such a direct link is established if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the actual consideration for the service supplied to the recipient (judgment of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraph 36).

37      In the present case, according to the information provided by the referring court, first, the collective management organisation concerned namely, Credidam carries out, inter alia, management services under the compulsory collective management scheme provided for in Article 145 of Law No 8/1996, including those services relating to the ‘right to remuneration for private copying’, referred to in Article 145(1)(a), which are comparable to the services at issue in the case that gave rise to the judgment of 18 January 2017, SAWP (C‑37/16, EU:C:2017:22), for the benefit of the rightholders that that collective management organisation represents. Those collective management services include, in particular, under Article 150(3) of that law, ‘the collection, distribution and payment of sums due to authors or holders of copyright or related rights’ by virtue of their rights.

38      Secondly, in accordance with Article 169(1)(h) of that law, rightholders are liable to pay to the collective management organisation a management fee fixed at a maximum of 15% of the sums collected, which is intended to ‘cover all the costs incurred in the operation of the collective management organisation, collection, distribution and payment of remuneration’ and which is deducted when the sums due are distributed.

39      It thus appears, subject to the verifications to be carried out by the referring court, that under the aforementioned provisions of national law, a legal relationship is established between the collective management organisation concerned and the rightholders which it represents, in the context of which there is reciprocal performance and which thus establishes a direct link between the collective management services provided by that organisation and the monetary consideration paid by those rightholders, which consists in the payment of the management fee. That fee is due only in so far as those collective management services are performed and constitute actual consideration for those services.

40      That assessment cannot be called into question by the fact that the provision of the collective management services concerned and the payment of the management fee due in that respect are regulated by statute (see, to that effect, judgment of 21 January 2021, UCMR –ADA, C‑501/19, EU:C:2021:50, paragraphs 36 and 37). First, as has been pointed out in the preceding paragraph of the present judgment, it is, in the present case, precisely that legislative framework which establishes a direct link between the provision of those services and the payment of the management fee. Secondly, Article 25(c) of the VAT Directive expressly provides that a supply of services may consist of, inter alia, the performance of a service in pursuance of the law.

41      The fact that the collective management organisation concerned is a non-profit association is irrelevant, in that context, since the management fee is intended only to cover the expenses of that association. Under Article 9(1) of the VAT Directive, a taxable person means any person who, independently, carries out any economic activity, whatever the purpose or results of that activity (see, to that effect, judgment 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraphs 39 and 40).

42      In those circumstances, collective management transactions such as those at issue in the main proceedings must be classified as supplies of services for consideration within the meaning of Article 2(1)(c) of the VAT Directive, read in conjunction with Article 24(1) and Article 25(c) of that directive.

43      In the second place, the referring court states that collective management operations may also occur in the context of supplies of services by the rightholders themselves and must therefore be regarded as involvement on the part of the collective management organisation in those services, a situation to which Article 28 of the VAT Directive applies.

44      According to that court, the application of Article 28 of the VAT Directive, as interpreted by the Court in its judgment of 14 July 2011, Henfling and Others (C‑464/10, EU:C:2011:489, paragraph 36), would result in the management fee being subject to VAT as part of the remuneration collected on behalf of rightholders and would follow the tax scheme applicable to that remuneration. The referring court asks in that context whether such a solution would not also be valid, by analogy, where, as in the present case, the remuneration from which the management fee is deducted does not constitute consideration for a supply of services falling within the scope of the VAT Directive and is therefore not taxed.

45      In that regard, it should be borne in mind that, according to settled case-law, consideration of economic and commercial realities is a fundamental criterion for the application of the common system of VAT (judgment of 12 November 2020, ITH Comercial Timişoara, C‑734/19, EU:C:2020:919, paragraph 48).

46      It is true that Article 28 of the VAT Directive provides that, where a taxable person acting in his or her own name but on behalf of another takes part in a supply of services, he or she is deemed to have received and supplied those services himself or herself.

47      Accordingly, that provision creates the legal fiction of two identical supplies of services provided consecutively. Under that fiction, the operator, who takes part in the supply of services and who constitutes the commission agent, is considered to have, first, received the services in question from the operator on behalf of whom it acts, who constitutes the principal, before providing, secondly, those services to the client himself or herself (judgment of 4 May 2017, Commission v Luxembourg, C‑274/15, EU:C:2017:333, paragraph 86 and the case-law cited).

48      However, as the referring court states and as the Romanian Government and the European Commission have also pointed out, Article 28 of the VAT Directive is not applicable in a situation such as that at issue in the main proceedings, since the rightholders do not supply any services in which the collective management organisation takes part.

49      In the present case, in view of the economic and commercial reality of the activity concerned, there are, for the purposes of the application of the VAT Directive, only the services supplied directly to the rightholders by the management organisation concerned, which consist in the collection, distribution and payment of the remuneration at issue in the main proceedings and for which the management fee constitutes actual consideration.

50      The fact that those supplies involve the collection, from users and on behalf of those rightholders, of remuneration arising from a legal relationship between those parties, which does not give rise, as such, to taxable transactions and, in particular, to supplies of services, within the meaning of the VAT Directive – such as that conferring on those rightholders, as regards those users, the right to remuneration for private copying – and that they are thus ‘ancillary’ to the performance of transactions not subject to VAT, cannot alter the fact that those services, carried out by the collective management organisation, are taxable for VAT purposes.

51      In that context, it should be observed that although the VAT Directive gives a very wide scope to VAT, only activities of an economic nature are covered by that tax. In that regard, the Court has stated that an activity may be regarded as an economic activity, within the meaning of the second subparagraph of Article 9(1) of the VAT Directive, only where the activity corresponds to one of the chargeable events defined in Article 2(1) of that directive (judgment of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraphs 31 and 32 and the case-law cited), including supplies of services for consideration.

52      It follows that non-taxable transactions such as those referred to in paragraph 50 of the present judgment cannot be classified as an ‘economic activity’ for the purposes of the VAT Directive and therefore do not fall within its scope (see, to that effect, judgment 18 January 2017, SAWP, C‑37/16, EU:C:2017:22, paragraph 32).

53      In those circumstances, since such transactions are not addressed in the VAT Directive, they cannot be taken into account, either by analogy with Article 28 of that directive or otherwise, in order to call into question the taxable nature of another transaction which, it is common ground, constitutes a supply of services for consideration, within the meaning of that directive, in the absence of any basis laid down for that purpose in that directive.

54      Similarly, in the light of what has been observed in paragraph 49 of the present judgment, there is also no need to take those transactions into account in the light of the Court’s case-law, stemming in particular from paragraphs 40 to 42 of the judgment of 4 March 2021, Frenetikexito (C‑581/19, EU:C:2021:167), concerning the possibility of analysing, if necessary, an economic transaction as comprising a principal supply of services and one or more supplies of ancillary services.

55      It follows from all the foregoing that Article 2(1)(c), Article 24(1) and Article 25(c) of the VAT Directive must be interpreted as meaning that a collective management organisation for copyright and related rights supplies services, within the meaning of those provisions, where, first, it collects, distributes and pays, by law, to rightholders the remuneration owed to them by certain users defined by law and, secondly, it deducts from that remuneration a management fee which is due to it by those rightholders and which is intended to cover the costs incurred by that activity, in the event that the remuneration thus collected on behalf of those rightholders does not constitute consideration for services supplied, within the meaning of that directive, by those rightholders for the benefit of those users.

 Costs

56      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

Article 2(1)(c), Article 24(1) and Article 25(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that a collective management organisation for copyright and related rights supplies services, within the meaning of those provisions, where, first, it collects, distributes and pays, by law, to rightholders the remuneration owed to them by certain users defined by law and, secondly, it deducts from that remuneration a management fee which is due to it by those rightholders and which is intended to cover the costs incurred by that activity, in the event that the remuneration thus collected on behalf of those rightholders does not constitute consideration for services supplied, within the meaning of that directive, by those rightholders for the benefit of those users.

[Signatures]

*      Language of the case: Romanian.

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