Existence of consideration: is payment decisive?

In the Apcoa Parking Danmark case (C 90/20), the CJEU held that it is immaterial whether national law classifies the sums to be paid to the provider of a service as remuneration, compensation, or penalties. The assessment of whether a payment is made in consideration for the provision of services is a matter of EU law.

On the contrary, the legal cause, or rather the legal basis, of the payments is precisely an element that must be taken into consideration in determining the existence of consideration. The same applies to the objective pursued, although, in my opinion, the latter is merely a complementary indicator and cannot be decisive in itself. In assessing these two elements, it is, however, necessary to assess the economic reality of the transactions (MEO, C 295/17).

The purpose of the payments played an important role in the Court's reasoning in the case that gave rise to the Tolsma judgment (C 16/93), from which it emerges that alms donated by passers-by, free of charge, to a musician playing in the street, do not constitute consideration for a service. However, this objective is not decisive in itself, as confirmed by paragraph 17 of that judgment, which emphasizes the absence of a legal relationship between the musician in question and his audience (Financial Bulgaria (C‑744/23).

This find...