In the issue 5, 2021 of the International VAT Monitor, I summarize various arguments raised in the Case C-695/20 Fenix International Ltd pending before the Court of Justice of the European Union. Is such e-platform a "disclosed agent" only because the final customer knows the name of the actual supplier who also determines the amount of the subscription fee ? The answer to this question is relevant in order to determine in which relation the VAT on the intermediation service by the e-platform is due and what is the taxable base (the commission obtained by the intermediary or the price paid by the final customer).
Based on the history of the fiction of commission agent (or "undisclosed agent") in the VAT Directives, I suggest that the critical point is that the agent intends to secure his fees and therefore he wants that reciprocal obligations exist between himself and the final customer and not between the final customer and the actual supplier (such as in a disclosed agency structure). Therefore, an "undisclosed agent" will logically authorize the charge to the customer or authorize the delivery of the service or sets the general terms of the supply. Actually, this is the way article 9a of the Council Implementing Regulation (EU) 282/2011 clarifies, but not modifies, the scope of article 28 of the VAT Directive. I suggest that the Implementing Regulation is in line with the old concept of “commission agent”, but also with those of vouchers in the VAT Directive and of “facilitator” in the new e-commerce rules since July 1, 2021.
But wait and see the judgement of the Court …..
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