T-643/24

Provisional text JUDGMENT OF THE GENERAL COURT (Chamber giving preliminary rulings) 11 February 2026 (*) ( Reference for a preliminary ruling – Taxation – Common system of value added tax – Taxable transactions – Concept of ‘supply of services for consideration’ – Article 2(1)(c), Article 24(1) and Article 25(a) and (c) of Directive 2006/112/EC – Taxable amount – Concept of ‘consideration’ – Article 73 and point (a) of the first paragraph of Article 78 of Directive 2006/112 – Holders of related rights – Communication of phonograms and audiovisual programmes without a licence – Remuneration paid to the collective management organisation – Surcharge ) In Case T‑643/24, REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), made by decision of 13 September 2024, received at the Court on 22 November 2024, in the proceedings Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (Credidam) v Cristian General Serv SRL, THE GENERAL COURT (Chamber giving preliminary rulings), composed, at the time of the deliberations, of S. Papasavvas, President, M. Sampol Pucurull, G. Steinfatt, D. Petrlík and W. Valasidis (Rapporteur), Judges, Advocate General: J. Martín y Pérez de Nanclares, Registrar: V. Di Bucci, having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 12 December 2024, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union, having regard to the fact that the case concerns the area referred to in point (a) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute, having regard to the written part of the procedure, after considering the observations submitted on behalf of: –        Credidam, by Ş. Gheorghiu, executive director, and by A. Lascu, avocată, –        the Romanian Government, by E. Gane, M. Chicu and L. Ghiță, acting as Agents, –        the European Commission, by M. Herold and E. Stamate, acting as Agents, after hearing the Opinion of the Advocate General at the sitting on 3 December 2025, gives the following Judgment 1        This request for a preliminary ruling concerns the interpretation of Article 2(1)(c), Article 24(1) and Article 25(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1). 2        The request has been made in proceedings between Centrul Român pentru Administrarea Drepturilor Artiștilor Interpreți (Credidam), whose activity is the collective management of copyright and related rights in Romania, and Cristian General Serv SRL, a company incorporated under Romanian law operating a guest house, concerning the application of value added tax (VAT) to all or part of the sum owed by that company to Credidam for making phonograms and audiovisual programmes available to its customers without a licence.  Legal framework  European Union law 3        Article 2(1) of Directive 2006/112 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        Article 24 of Directive 2006/112 provides: ‘(1)      “Supply of services” shall mean any transaction which does not constitute a supply of goods. …’ 5        Article 25 of Directive 2006/112 states: ‘A supply of services may consist, inter alia, in one of the following transactions: (a)      the assignment of intangible property, whether or not the subject of a document establishing title; (b)      the obligation … to tolerate an act or situation; (c)      the performance of services … in pursuance of the law.’ 6        Article 73 of Directive 2006/112 provides: ‘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.’ 7        Under Article 78 of Directive 2006/112: ‘The taxable amount shall include the following factors: (a)      taxes, duties, levies and charges, excluding the VAT itself; …’  National law  The Tax Code 8        Articles 268 and 271 of Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code) of 8 September 2015 (Monitorul Oficial al României, Part I, No 688 of 10 September 2015), in the version applicable to the facts of the main proceedings (‘the Tax Code’), are intended to transpose Articles 2, 24 and 25 of Directive 2006/112 into Romanian law. 9        Under the terms of Article 286 of the Tax Code: ‘… (4)      The tax base does not include the following items: … (b)      sums constituting damages, determined by a final or final and irrevocable court decision, where applicable, penalties and any other sums claimed for total or partial breach of contractual obligations, if they are collected in excess of the negotiated prices and/or rates; …’  The Law on copyright and related rights 10      Article 112 of Legea nr. 8/1996 privind dreptul de autor şi drepturile conexe (Law No 8/1996 on copyright and related rights) of 14 March 1996 (Monitorul Oficial al României, Part I, No 60 of 26 March 1996), in the version applicable to the facts of the main proceedings (‘the Law on copyright and related rights’), provides: ‘(1)      Performers and producers of phonograms are entitled to a single and equitable remuneration for the direct or indirect use of phonograms published for commercial purposes or for their reproduction by broadcasting or by any means of communication to the public. (2)      The amount of that remuneration shall be determined by methodologies, in accordance with the procedure laid down in Articles 163 to 165. (3)      The single remuneration shall be collected under the conditions set out in Article 168. … (5)      For the purposes of this Law, a phonogram shall be considered to be published for commercial purposes when it is made available to the public through a sale or by wired or wireless means that allow anyone to access it at a place and time of their choosing.’ 11      Article 145 of the Law on copyright and related rights provides: ‘(1)      Collective management is mandatory for the exercise of the following rights: … (d)      the right to a single equitable remuneration granted to performers and producers of phonograms for the communication to the public and broadcasting of phonograms published for commercial purposes or reproductions of such phonograms; … (2)      For the categories of rights referred to in paragraph 1, collective management organisations shall also represent rights holders who have not given them a mandate.’ 12      Article 146 of the Law on copyright and related rights provides: ‘(1)      The following rights may be subject to collective management: … (b)      the right to communicate works to the public, with the exception of musical works and artistic performances in the audiovisual field; … (2)      For the categories of rights referred to in paragraph 1, collective management organisations shall represent only those rights holders who have given them a mandate and shall develop methodologies … or negotiate licence agreements directly with users. …’  Methodology 13      Decizia nr. 120/2016 privind publicarea în Monitorul Oficial al României, Partea I, a Deciziei civile nr. 784A din 26 octombrie 2016 a Curţii de Apel Bucureşti – Secţia a IV-a civilă, pronunţată în Dosarul nr. 2.013/2/2016 (Decision No 120/2016 on the publication in the Romanian Official Journal, Part I, of Civil Decision No 784A of 26 October 2016 of the Bucharest Court of Appeal, Bucharest – Fourth Division for Civil Matters, handed down in Case No 2.013/2/2016) (Monitorul Oficial al României, Part I, No 952 of 25 November 2016) brings into force the methodology adopted by the Oficiul Român pentru Drepturile de Autor (Romanian Copyright Office), referred to, in particular, in Article 112(2) of the Law on copyright and related rights (‘the methodology’). 14      Point 3.12 of the methodology provides that, where protected works are used without prior authorisation, the amount of remuneration owed by the user to performers and producers of phonograms is equal to three times the remuneration that the user would have owed if they had held a licence.  The dispute in the main proceedings and the questions referred for a preliminary ruling 15      The applicant in the main proceedings, Credidam, in its capacity as a collective management organisation for copyright and related rights in Romania, collects and distributes the remuneration due in respect of those rights. It ensures the right of performers and producers of phonograms to ‘equitable remuneration’, within the meaning of Article 145(1)(d) of the Law on copyright and related rights, for the communication to the public and broadcasting of phonograms published for commercial purposes or the reproduction of those phonograms. It also manages the remuneration of rights holders who have given it a mandate for the communication of artistic performances in the audiovisual field, pursuant to Article 146(1)(b) of that law. 16      Credidam considered that Cristian General Serv owed it, for the period from 1 October 2019 to 31 December 2022 (‘the period at issue’), the sum of 4 166.19 Romanian lei (RON) (approximately EUR 845), including VAT, for communicating to the public, in the guest house it operated, phonograms or reproductions thereof and artistic performances in the audiovisual field (‘the protected works in question’), without having been granted a licence for that purpose beforehand. 17      To determine the amount referred to in paragraph 16 above, Credidam, in accordance with the methodology, tripled the remuneration that Cristian General Serv would have been liable to pay if it had had a licence. It considered that VAT should be charged on the total amount of that remuneration. 18      On 25 November 2022, Credidam brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) seeking, on the basis of civil tort liability, an order requiring Cristian General Serv, first, to pay the sum referred to in paragraph 16 above and, secondly, to conclude a contract with it for the granting of licences for the communication to the public of works of the kind referred to in paragraph 15 above. 19      The action brought by Credidam was dismissed by a judgment of 19 April 2023, the Tribunalul București (Regional Court, Bucharest) finding, with regard to the claim for payment, that Cristian General Serv had not carried out any commercial activity during the period at issue, so that, although it had premises for that purpose, it had not communicated the protected works in question. With regard to the request to order the conclusion of a non-exclusive licence, that court considered that the Law on copyright and related rights did not derogate from the principle of freedom of contract and that, in any event, the removal of the space operated by that company in February 2023 prevented the conclusion of a non-exclusive licence such as that requested by Credidam. 20      Credidam appealed against the judgment of 19 April 2023 before the referring court, the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania). It maintains all of its claims and considers, in essence, that it has proved that Cristian General Serv had communicated the protected works in question to the public. 21      The referring court, in examining Credidam’s claims, questions whether the sum claimed by Credidam should, in whole or in part, be subject to VAT. It states that the circumstances of the main proceedings differ from those in the cases that gave rise to the judgments of 18 January 2017, SAWP (C‑37/16, EU:C:2017:22), of 21 January 2021, UCMR – ADA (C‑501/19, EU:C:2021:50), and of 4 July 2024, Credidam (C‑179/23, EU:C:2024:571). 22      In those circumstances, the Curtea de Apel Bucureşti (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1)      On a proper construction of Article 2(1)(c), Article 24(1), and Article 25(a) of Directive [2006/112], do holders of related rights carry out a supply of services for consideration where the user carries out a communication to the public of protected works in the absence of a licence to that effect? (2)      Does the answer to the first question depend on whether, under national law, the holder of such a related right is not able to object to the uses, being entitled only to the single equitable remuneration, or does it depend on the method of calculation used in determining the amounts due?’  Admissibility of the request for a preliminary ruling 23      As the European Commission pointed out in its observations, the referring court does not specify in its request for a preliminary ruling whether it considers it to be established that the protected works in question have been communicated to the public. 24      In that regard, it should be noted that questions relating to the interpretation of EU law raised by the national court in the regulatory and factual context which it defines under its own responsibility, and the accuracy of which it is not for the General Court to verify, are presumed to be relevant. The General Court may reject a request made by a national court only if it is manifest that the interpretation of EU law sought bears no relation to the actual facts of the main proceedings or their purpose, where the problem is hypothetical, or if the General Court does not have before it the factual and legal information necessary to give a useful answer to the questions referred to it (see, by analogy, judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 20 and the case-law cited). 25      In the present case, it is clear from point 2 of the request for a preliminary ruling, the content of which is set out in paragraph 19 above, that the court of first instance, the Tribunalul București (Regional Court, Bucharest), found that Cristian General Serv had not carried out any commercial activity during the period at issue, which raises the question of the very existence of the services in respect of which the referring court is questioning the Court of Justice. 26      However, it should be noted that the referring court does not, for that matter, express any doubts as to the existence of that supply of services in the request for a preliminary ruling. 27      Therefore, while drawing the referring court’s attention to the fact that it alone has jurisdiction to rule on the accuracy and legal classification of the facts of the main proceedings, it must be held that, since that court states that it does not have sufficient information, in the light of the case-law cited in paragraph 21 above, to decide the dispute before it, and given the presumption of relevance enjoyed by questions referred for a preliminary ruling, it is not apparent that the interpretation of Directive 2006/112 sought by that court bears no relation to the actual facts or the subject matter of the dispute in the main proceedings, or that the problem raised by that court is hypothetical (see, by analogy, judgment of 12 September 2024, NARE-BG, C‑429/23, EU:C:2024:742, paragraph 42). 28      It follows that the questions referred are admissible.  The substance 29      It follows from the request for a preliminary ruling, first, that the remuneration of holders of related rights under Romanian law is determined by the law and the methodology specifying it and, secondly, that the referring court is questioning the issue, in the event of a supply of services for consideration, of whether, in circumstances such as those in the main proceedings, VAT should be levied only on the remuneration payable by a user with a licence or on three times that remuneration, due to the unlicensed communication of the protected works. 30      Consequently, in order to provide a useful answer to the referring court, Article 25(c) of Directive 2006/112, relating to the supply of services under the law, and Article 73 and point (a) of the first paragraph of Article 78 of that directive, relating to the VAT tax base, must also be interpreted. 31      It must therefore be considered that, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2(1)(c), Article 24(1), Article 25(a) and (c), Article 73 and point (a) of the first paragraph of Article 78 of Directive 2006/112 must be interpreted as meaning that: –        holders of related rights supply services for consideration when their protected works are communicated to the public by a user who does not have a licence for that purpose, notwithstanding the fact that, first, they cannot oppose such communication and, secondly, their remuneration results from national law and the regulatory provisions to which that law refers; –        VAT applies to the total remuneration due to holders of related rights for that supply of services, including the portion of that remuneration that exceeds the remuneration that that user would have been liable for if they had held a licence. 32      In the first place, as regards the question whether a service such as that at issue in the main proceedings falls within the definition of a supply of services for consideration, it should be noted that a supply of services is carried out for consideration, within the meaning of Article 2(1)(c) of Directive 2006/112, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is a reciprocal performance, the remuneration received by the provider of the service constituting the actual consideration for an identifiable service supplied to the recipient. That is the case if there is a direct link between the service supplied and the consideration received (see judgment of 24 February 2022, Suzlon Wind Energy Portugal, C‑605/20, EU:C:2022:116, paragraph 62 and the case-law cited). 33      In that regard, it should first be noted, as the Advocate General pointed out in points 38 and 48 of his Opinion, that the concept of ‘legal relationship … pursuant to which there is a reciprocal performance’ must be given a broad interpretation. Thus, it follows from the case-law that the mere use of a regulated service, such as parking in a paid car park (judgment of 20 January 2022, Apcoa Parking Danmark, C‑90/20, EU:C:2022:37) or consuming electricity at one’s place of residence (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348), may give rise to a legal relationship between the person holding the rights enabling the supply of that service and the person who has used it (see, to that effect, judgments of 20 January 2022, Apcoa Parking Danmark, C‑90/20, EU:C:2022:37, paragraphs 28 and 29, and of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraphs 30 to 32). 34      Next, it should be noted, with regard to the concept of ‘remuneration’, that, according to the case-law cited in paragraph 33 above, the total absence of payment of the sums due does not constitute an obstacle to the finding of reciprocity of rights and obligations resulting from the economic transaction in question (see, to that effect, judgments of 20 January 2022, Apcoa Parking Danmark, C‑90/20, EU:C:2022:37, paragraphs 39 to 43, and of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraphs 30 and 32). 35      Finally, with regard to the concept of a ‘direct link’, as the referring court itself has pointed out, the Court of Justice has already had occasion to rule that the fact that remuneration is collected by a collective management organisation for copyright and related rights did not preclude the existence of a direct link within the meaning of the case-law cited in paragraph 32 above, provided that that organisation acted on behalf of the holders of such rights, and the fact that the collective management of remuneration resulted from a legal obligation did not preclude the existence of such a link either (see, to that effect, judgment of 21 January 2021, UCMR – ADA, C‑501/19, EU:C:2021:50, paragraph 37). It has also been led to specify that it was precisely the legislative framework that established a direct link between the supply of services and the obligation to pay the consideration, bearing in mind that it follows expressly from Article 25(c) of Directive 2006/112 that a supply of services may consist, in particular, in the performance of a service under the terms of the law (see, to that effect, judgment of 4 July 2024, Credidam, C‑179/23, EU:C:2024:571, paragraph 40). 36      As the Advocate General pointed out in point 31 of his Opinion, the fact that, in the present case, the communication of protected works took place without Credidam having first granted a licence for such communication led the referring court to question whether the case-law resulting from the judgment of 21 January 2021, UCMR – ADA (C‑501/19, EU:C:2021:50), could be applied to the facts in the main proceedings. 37      In that regard, it should be emphasised that the principle of fiscal neutrality precludes, in relation to the collection of VAT, a generalised distinction between unlawful and lawful transactions, since the VAT system is designed to charge the final consumer of goods or services when those goods or services have been supplied in the context of transactions that are taxable under Directive 2006/112 (see judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 28 and the case-law cited). 38      In the present case, it appears from the request for a preliminary ruling that Cristian General Serv is accused of having communicated to the public protected works without prior authorisation or a licence having been granted to it. 39      The communication of the protected works in question gives rise to a single and equitable remuneration for the performers and producers of phonograms who took part in those works for the direct or indirect use of the latter, without those performers and producers of phonograms being able to oppose such use. 40      The terms and conditions of the single and equitable remuneration, resulting in particular from point 3.12 of the methodology, cause that remuneration to vary from single to triple depending on whether or not the communication of the protected works was authorised by Credidam, which represents the holders of related rights ex lege, pursuant to Articles 145 and 146 of the Law on copyright and related rights (see paragraphs 11 and 12 above). Consequently, even if the communication of the protected works in question took place without a licence, the fact remains that the failure of the collective management organisation for copyright and related rights to grant a licence did not prevent the legal and regulatory framework governing the communication to the public of such works without a licence from applying, which it is for the referring court to verify. 41      The fact that the user of the protected works has not paid the sums he or she should have paid does not preclude, in the light of the case-law cited in paragraph 34 above, that those sums are to be regarded as the consideration of the service provided by a collective management organisation for copyright and related rights on behalf of the holders of related rights, which it is for the referring court to verify. 42      The fact that the sums owed by the user of the protected works are claimed by a collective management organisation for copyright and related rights, and not by the holders of related rights themselves, does not preclude, as is apparent from paragraph 35 above, the existence of a direct link between the service provided and the consideration received. 43      In the light of the foregoing, it appears, which it is for the referring court to verify, that a supply of services such as that identified by that court satisfies the criteria established in the case-law set out in paragraph 32 above. 44      In the second place, as regards the question whether VAT should be levied only on the remuneration which would have been payable to the collective management organisation for copyright and related rights, on behalf of the holders of related rights, if the user of the protected works had had a licence, or whether it should be levied on three times that remuneration, the following considerations should be noted. 45      It follows from settled case-law that the taxable amount for the supply of services for consideration is the consideration actually received by the taxable person for that purpose. That consideration constitutes the subjective value, namely the value actually received, and not an estimated value based on objective criteria. Furthermore, that consideration must be capable of being expressed in monetary terms (see judgment of 7 March 2013, Efir, C‑19/12, not published, EU:C:2013:148, paragraph 41 and the case-law cited). 46      Furthermore, it follows from point (a) of the first paragraph of Article 78 of Directive 2006/112 that VAT itself is not included in the taxable amount, the corollary of which is that VAT is always automatically included in the agreed price (judgment of 21 March 2024, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate), C‑606/22, EU:C:2024:255, paragraph 27). 47      That concept of ‘agreed price’, namely the ‘consideration’ for the supply of services, is interpreted by the EU Courts as including surcharges or additional costs, where those result from the application of the legal framework to the relationship between the service provider and the person who benefited from those services, even if illegally or irregularly, in other words, when those surcharges or additional costs illustrate the direct link between the supply of services and the consideration for them. The Court of Justice thus ruled that the costs of checking for illegal parking, which were payable by motorists who had used a parking space, were subject to VAT, notwithstanding the fact that such costs were classified as penalties under national law (judgment of 20 January 2022, Apcoa Parking Danmark, C‑90/20, EU:C:2022:37, paragraphs 30 to 34 and 46). It has also held that compensation representing the undue advantage obtained by a consumer of electricity obtained illegally is subject to VAT (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 32). 48      In the present case, subject to verification by the referring court, it is clear from point 3.12 of the methodology, which is specifically referred to in the Law on copyright and related rights, that the increase in the remuneration payable by users of protected works who do not have a licence is the direct consequence of the unlicensed communication of those works, that is to say, the supply of services such as those at issue in the main proceedings. 49      Consequently, the price to be taken into consideration and subject to VAT in circumstances such as those in the main proceedings is the price determined by law in the case of unlicensed communication of works such as the protected works in question, that is to say, three times the price that the user would have been required to pay in the case of licensed communication to the public. 50      In light of the foregoing considerations, the answer to the questions referred is that Article 2(1)(c), Article 24(1), Article 25(a) and (c), Article 73 and point (a) of the first paragraph of Article 78 of Directive 2006/112 must be interpreted as meaning that: –        holders of related rights supply services for consideration when their protected works are communicated to the public by a user who does not have a licence for that purpose, notwithstanding the fact that, first, they cannot oppose such communication and, secondly, their remuneration results from national law and the regulatory provisions to which that law refers; –        VAT applies to the total remuneration due to holders of related rights for that supply of services, including the portion of that remuneration that exceeds the remuneration that that user would have been liable for if they had held a licence.  Costs 51      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 GENERAL COURT (Chamber giving preliminary rulings) hereby rules: Article 2(1)(c), Article 24(1), Article 25(a) and (c), Article 73 and point (a) of the first paragraph of Article 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that: –        holders of related rights supply services for consideration when their protected works are communicated to the public by a user who does not have a licence for that purpose, notwithstanding the fact that, first, they cannot oppose such communication and, secondly, their remuneration results from national law as well as the regulatory provisions to which that law refers; –        value added tax applies to the total remuneration due to holders of related rights for that supply of services, including the portion of that remuneration that exceeds the remuneration that that user would have been liable for if they had held a licence. Papasavvas Sampol Pucurull Steinfatt Petrlík         Valasidis Delivered in open court in Luxembourg on 11 February 2026. [Signatures] *      Language of the case: Romanian.