L'articolo commenta la sentenza Skatteverket v. David Hedqvist che affronta il trattamento IVA di transazioni bitcoin. L’indagine consente di concludere che, sebbene condivisibile nella sua conclusione finale, la decisione della Corte di Giustizia Europea non considera la giurisprudenza e la dottrina correnti, risultando carente stricti juris di motivazione nei suoi punti essenziali e problematica nel suo ridurre la quaestio in discussione ad un puro problema linguistico.
Bitcoin and virtual currencies. Reflections in the wake of the cjeu's bitcoin vat judgement This paper discusses the CJEU’s case in Skatteverket v. David Hedqvist, dealing with the VAT treatment of bitcoin transactions. The research reaches the conclusion that, although the CJEU’s final decision is sound, it does not consider the current case law and literature on this point, resulting stricti jurislacking of a legal reasoning in its essential parts and also quite problematic, since it reduces the discussion to a mere linguistic issue.
1. Introduction
Digital payments, electronic payments, and mobile payments are becoming an important part of our lives. Bitcoin is an alternative virtual currency released as open-source software in 2009 by Satoshi Nakamoto which has recently gained a rather central position in the market of digital payments. Bitcoin is an altogether different breed of currency: it is not emitted by a recognized government and it does not rely on trust but rather on the inherent robustness and resilience to tampering of a decentralized peer-to-peer network [1]. As it uses cryptography to secure transactions and to control that creation of additional units is legitimate, Bitcoin is also the first decentralized cryptocurrency [2].
In 2012, the European Commission assessed the landscape for new types of payments in their green paper «Towards an integrated European market for card, Internet and mobile payments», recognizing how payments through the Internet are growing, identifying opportunities and obstacles, and introducing a vision of a fully integrated payments market [3], following in the tracks of the Commission’s own support of the Digital Single Market as one of the seven pillars of their Digital Agenda for Europe, with a stated goal of moving 50% of European customers to online transactions by 2015 [4].
This is no surprise, as payments have been identified as one of the main obstacles to e-commerce, given the diversity of payment methods within individual EU Member states, as well as the lack of a coherent and comprehensive regulatory framework [5]. The document also stresses how innovation and differentiation are key [6].
In 2013 the European Commission proposed a new Directive on payment services in the internal market [7], again maintaining that digital or electronic payments are a way to foster innovation that aligns with the Europe 2020 initiative and the Digital Agenda [8], and that could potentially lower costs by leveraging the Internet [9].
A discussion of Bitcoin neatly falls within this framing based on digital innovation, facilitation of cross-border payments through the Internet, and the consolidation of a European space for e-services: as a matter of fact, the VAT Committee itself suggested in February 2015 [10] that Bitcoin could be classified as an e-service [11]. Nevertheless, the EU legislator has remained until now largely silent in respect to alternative payment systems and because of this actual regulation of Bitcoin rests in a legal vacuum.
It is in this context that the ECJ C-264/14 Skatteverket v. David Hedqvist Case [12] has to be situated, with the final judgement clearly documenting the perplexities and the disorientation surrounding not only the VAT profile of Bitcoin, but its very nature from a legal perspective. It is in this case that the ECJ first attempts to define Bitcoin as a [continua..]
