In its judgment of 13 November 2025, Case C-639/24, the CJEU addressed the evidentiary requirements applicable to intra-Community supplies.
I. Factual Background
The Croatian company FLO VENEER d.o.o. (hereinafter, the claimant) trades in oak logs. Between 1 January 2020 and 31 March 2020, it supplied oak logs to a purchaser in Slovenia and treated these supplies as intra-Community supplies exempt from VAT (Article 138(1) of the VAT Directive).
In the course of a tax audit, the Croatian tax administration found that the goods had in fact been transported from Croatia to Slovenia. As evidence, the claimant submitted various documents (written statements from the purchaser under Article 45a(1)(b)(i) of Implementing Regulation (EU) No 282/2011, hereinafter “the Regulation,” together with invoices, dispatch notes, and CMR consignment notes). Nevertheless, the tax administration refused the exemption on the ground that the specific formal requirements of Article 45a of the Regulation had not been fully satisfied. The documents submitted, it held, were not sufficient to establish the presumption of an intra-Community supply provided for under that provision. The claimant’s objection was unsuccessful, and it brought an action before the Administrative Court of Zagreb. That court stayed the proceedings and referred the matter to the CJEU for a preliminary ruling.
In essence, the referring court sought to determine whether the exemption for intra-Community supplies may be refused solely on the ground that a taxable person is unable to produce all of the formal evidence required under Article 45a of the Regulation, or whether the tax authorities must, even in such cases, examine all other available evidence in order to establish whether an intra-Community supply (that is, a movement of goods from one member state to another) actually took place.
II. The decision
The CJEU made clear that Article 45a of the Regulation governs only those cases in which a presumption applies as to the movement of the goods, and that the provision does not constitute an exhaustive rule of evidence. Where the conditions set out there are not met, the tax authorities must assess all other evidence submitted and decide, on that basis, whether the exemption is to be granted.
In doing so, substantive requirements take precedence over formal ones, since Article 138(1) of the VAT Directive does not make the exemption conditional on possession of particular formal documents. What matters is whether the substantive requirements for an intra-Community supply are, in fact, satisfied.
Under settled case law, formal requirements may not defeat entitlement to an exemption where the substantive requirements are met. In the CJEU’s view, refusal on the sole ground of formal defects is permissible only where the taxable person is involved in tax evasion, or where the breach of formal obligations prevents the tax authority from reliably establishing whether the substantive requirements are satisfied.
As a result, the tax authorities must take into account all available documentation (for example, invoices, CMR consignment notes, payment evidence, and storage records) and determine, on the basis of an overall assessment, whether an intra-Community supply can be established from them. In the CJEU’s view, refusal cannot be based solely on the absence of the documents referred to in Article 45a of the Regulation.
III. Implications for practice
The CJEU’s decision establishes that Article 45a is not to be understood as an exhaustive list of evidence, but as an evidentiary facilitation. Companies may also prove entitlement to the exemption by other suitable evidence where the presumption under Article 45a of the Regulation does not apply. The tax authorities may not automatically refuse the exemption by reference to formal deficiencies, in particular where an intra-Community supply can be established on the basis of the evidence as a whole.
In the CJEU’s view, this does not apply only in cases where the taxable person commits, or participates in, fraud, or where the formal defect makes the substantive examination factually impossible. In such cases, the exemption may be refused. That the exemption may be refused in the case of fraud, or participation in fraud, is, incidentally, nothing new, since this has been the CJEU’s consistent position for many years.
What is significant for practice is that, even where the requirements of Article 45a of the Regulation are not met, the exemption is not automatically lost, always provided that the physical movement of the goods actually took place. Nevertheless, businesses should, wherever possible, still try to meet the evidentiary requirements set out there, in order to avoid unnecessary disputes with the tax authorities. In Germany, Article 45a of the Regulation is implemented, in essence, through Section 17a of the VAT Implementation Ordinance (UStDV), also known as the “confirmation of arrival.” In addition, however, Section 17b UStDV also allows proof of arrival to be provided by means of other documentation.
Companies should ensure that the required evidence is available in precise form, but should also consider, as a precautionary measure, securing other forms of evidence relating to the movement of goods, so that these can be produced in the event of doubt during tax audits. Experience shows that numerous documents and data relating to any given transaction already exist in any case. Preserving them, as a precaution, for future tax audits is easier at the time the transaction is recorded than having to reconstruct them years later in the course of an audit. Where transactions are unquestionably free of any evidentiary issues, precautionary storage is, of course, unnecessary, but in a genuine dispute, having the evidence can be better than needing it.
By Heiko Panke
