AG Opinion: Platforms May Be Liable for VAT on Electronic Services Even Before 2015

The Advocate General (AG) Szpunar has delivered a significant opinion in Case C-101/24, delivered on 10 April 2025, concerning the VAT treatment of electronic services supplied through a marketplace for online applications. The case focuses on the provision of mobile application services by a German developer via an Irish-operated platform and clarifies the interpretation of Articles 28, 44, 45, and 203 of the VAT Directive (2006/112/EC), especially in the context of pre-2015 supply rules.

Although the legal regime discussed is prior to 1 January 2015, the AG notes that many principles apply to the current VAT framework following the reform and the introduction of Implementing Regulation 282/2011.

Case C-101/24: Electronic Services Provided Through a Platform

The case involves a German Company (DE Co.), a mobile app developer based in Germany, which distributed games via an app store operated by an Irish company. While app downloads were free, users could purchase in-app enhancements. These purchases were made within the marketplace platform, which also processed payments.

Originally, DE Co. declared itself the supplier and accounted for VAT in Germany. Later, it revised its filings, asserting that the services were supplied via a commissionaire structure (under Article 28), thus shifting VAT liability to Ireland. This correction was rejected by German tax authorities, triggering judicial proceedings that eventually reached the Court of Justice of the European Union (CJEU).

AG Conclusions: Platform as Deemed Supplier for the Electronic Services

1. Commissionaire Structure to Apply the Deemed Supplier Rule

According to Article 28 of the VAT Directive 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. The AG interprets Article 28 as creating a legal fiction: when an intermediary acts in its own name but on behalf of another, it is deemed to be the supplier. This is applicable even before 1 January 2015.

Considering that the app store:

• Controlled pricing and transaction flow,
• Was the customer-facing party,
• Handled billing and contracts (to end users),
• Imposed its own Terms & Conditions.

The AG holds that app stores function as intermediaries, supplying services in their own name, even if end users are informed that the developer is the underlying provider. This interpretation supports consistent VAT treatment regardless of whether services are free or paid, as long as the store controls access and payment.

Although Article 9a (Implementing Reg. 282/2011) only took effect in 2015, it did not change the meaning of Article 28 but merely clarified it. Hence, app stores should be deemed to receive and supply the electronic service, even pre-2015.

2. Place of Supply for Platform Services

The fictitious supply from developer to platform is B2B and thus follows Article 44 (supplier’s establishment = Ireland), not Article 45 (Germany):

• Since the app store is a taxable person, the internal supply (developer to app store) qualifies as B2B, thus subject to Article 44.
• The external supply (app store to end users) is B2C, taxed where the app store is established. This is the place of supply under pre-2015 rules; currently, the place of supply would be where the final customer is located.

Therefore, in that case, VAT was due in Ireland, instead of Germany.

According to current place of supply rules for B2C electronically supplied services, these are taxable where the final customer is located. Reporting through OSS is an efficient way to handle VAT compliance obligations in multiple EU Member States.

3. Deemed Supplier Rule Applies Regardless of Transaction Documents

The AG also addresses Article 203, which makes anyone who states VAT on an invoice liable for it. However, the AG finds:

• Purchase confirmations issued to non-taxable persons (consumers) do not qualify as “invoices” for Article 203 purposes.
• There is no risk of loss to tax authorities as the end users have no right to deduct VAT.

As a conclusion, the German Company is not liable for German VAT merely because the Irish company identified it as the supplier in order confirmations.

Key Takeaways from AG Opinion

The opinion underscores a long-standing but evolving VAT policy principle: platforms and aggregators—who control the transaction—are best placed to handle VAT. This echoes later rules (post-2015 and post-2021 OSS/MOSS).

It is particularly noteworthy that Szpunar retroactively applies Article 28 logic, supported by the ECJ’s ruling in Fenix International. This reinforces the primacy of substance over form—who controls the transaction matters more than contractual labels. Additionally:

• Platform control may translate into VAT supplier status, even before formal codification.
• Tax authorities must not enforce VAT claims merely based on invoice headings without legal liability.
• Future-proofing digital service models should involve clear contractual and technical structuring aligning with economic reality.

While not binding, the Advocate General’s opinion usually carries considerable weight in the CJEU’s final decision. A judgment affirming these views would clarify VAT treatment across cross-border digital platforms.