Documenting Intra-Community Supplies: A Key CJEU Ruling on Zero-Rate VAT

Documenting intra-Community supply of goods for 0% VAT – on 13 November 2025, the Court of Justice of the European Union issued a judgment in case C-639/24 FLO VENEER, which provides significant clarification of the rules for documenting intra-Community supplies of goods (ICS) for the purposes of VAT exemption. This ruling reinforces the Court’s well-established jurisprudential line favoring substantive over formal requirements in VAT exemption determinations, while simultaneously resolving practical uncertainties concerning the interplay between Article 138(1) of the VAT Directive and Article 45a of Implementing Regulation No. 282/2011.

Regulatory Framework: The Presumption Mechanism Under Article 45a

A comprehensive understanding of the FLO VENEER judgment’s significance necessitates an examination of the legal architecture introduced by Implementing Regulation 2018/1912. Article 45a of Implementing Regulation No. 282/2011 establishes a system of rebuttable presumptions designed to facilitate taxpayers’ documentation of intra-Community supplies.

The Presumption Structure

Pursuant to Article 45a(1), goods are presumed to have been dispatched or transported to another Member State under two alternative scenarios.

Scenario A – Transport Organized by the Vendor (Article 45a(1)(a)): The vendor indicates that goods were dispatched by the vendor or by a third party acting on the vendor’s behalf, and possesses at least two consistent pieces of evidence from Catalog “A” (Article 45a(3)(a)), issued by two different independent parties, or alternatively, one piece of evidence from Catalog “A” combined with one from Catalog “B” (Article 45a(3)(b)).

Scenario B – Transport Organized by the Purchaser (Article 45a(1)(b)): The vendor possesses a written statement from the purchaser confirming dispatch or transport by the purchaser (or a third party acting on the purchaser’s behalf), containing specifically enumerated elements (date of issuance, purchaser’s details, quantity and nature of goods, date and place of arrival, identification of the receiving party), delivered by the tenth day of the month following the supply, together with documentary evidence as specified in Scenario A.

Documenting intra-Community supply of goods for 0% VAT 

Catalog “A” (Article 45a(3)(a)) comprises documents directly referencing dispatch or transport: a signed CMR consignment note, bill of lading, air waybill, or invoice from a freight carrier.

Catalog “B” (Article 45a(3)(b)) encompasses supplementary documentation: an insurance policy or banking documents confirming payment for transport, official documents confirming goods’ arrival, or receipt acknowledgment from a warehouse operator in the destination state.

Critically, Article 45a(2) expressly provides that tax authorities may rebut the presumption established under paragraph 1, thereby confirming its rebuttable character.

Factual Background

FLO VENEER d.o.o., a Croatian company engaged in the oak log trade, conducted supplies to a Slovenian purchaser during the first quarter of 2020. During a tax audit, the company submitted documentation comprising written statements from the purchaser (pursuant to Article 45a(1)(b)(i) of the Implementing Regulation), invoices, dispatch certificates, and CMR consignment notes.

Significantly, the Croatian tax authorities did not contest the physical movement of goods from Croatia to Slovenia. They nevertheless denied the VAT exemption on grounds that the submitted documentation failed to satisfy all formal requirements prescribed by Article 45a of Implementing Regulation No. 282/2011, thereby precluding establishment of the dispatch presumption.

The Legal Question Presented

The Administrative Court in Zagreb formulated a preliminary reference addressing a fundamental question: whether failure to satisfy the documentary requirements of Article 45a of the Implementing Regulation automatically precludes application of the exemption under Article 138(1) of the VAT Directive, or whether tax authorities bear an obligation to assess all submitted evidence, notwithstanding its conformity with the presumption framework.

This question carries substantial practical implications. Article 45a, introduced by Implementing Regulation 2018/1912, was intended to facilitate taxpayers’ documentation of ICS through establishment of a rebuttable presumption of dispatch. A concern emerged, however, that this provision—conceived as a simplification measure—might paradoxically function as an additional barrier, suggesting that only specified categories of evidence could be deemed acceptable.

The Tribunal’s Holding

The CJEU unequivocally held that Article 138(1) of the VAT Directive and Article 45a of the Implementing Regulation:

First, preclude denial of VAT exemption solely on grounds that the taxpayer failed to produce the evidence contemplated by Article 45a of the Implementing Regulation.

Second, impose upon national tax authorities an obligation to assess all submitted evidence for purposes of determining whether goods were actually dispatched or transported to another Member State, irrespective of whether such evidence falls within the Article 45a catalog.

The Court’s Reasoning

Textual Interpretation. The Tribunal emphasized that Article 45a of the Implementing Regulation merely identifies circumstances under which a presumption of dispatch arises. This provision does not constitute an exhaustive catalog of evidence necessary to establish an ICS transaction. Similarly, Article 138(1) of the VAT Directive does not condition exemption upon the vendor’s possession of specified categories of evidence.

Teleological Interpretation. Invoking Recitals 3-5 of Implementing Regulation 2018/1912, the Court underscored that the Article 45a presumption was introduced to facilitate the presentation of evidence—serving the interests of both businesses and tax authorities. It was not intended to circumscribe taxpayers’ evidentiary options.

Were a restrictive interpretation adopted, vendors lacking Article 45a documentation would be denied exemption despite having effected a genuine ICS transaction. Such an outcome would undermine the VAT Directive’s fundamental objective of promoting intra-Community commercial exchange.

The Principle of Fiscal Neutrality

The Tribunal invoked well-settled case law establishing that formal requirements cannot vitiate the right to VAT exemption where the substantive prerequisites of a transaction are satisfied (see Euro Tyre, C-21/16). The principle of fiscal neutrality mandates recognition of exemption upon satisfaction of material conditions, notwithstanding non-compliance with certain formal requirements.

The Court reiterated that only two circumstances justify denial of exemption despite satisfaction of material prerequisites: the taxpayer’s intentional participation in tax fraud, or violation of a formal requirement that precludes presentation of convincing evidence of material compliance.

Polish Interpretative Practice: Convergence with the CJEU’s Approach

An analysis of Polish interpretative practice demonstrates that the position articulated by the CJEU in FLO VENEER is fully consistent with the approach established within the Polish legal order from the moment Article 45a of the Implementing Regulation entered into force.

Ministry of Finance Tax Guidance

In tax guidance issued December 17, 2020, concerning ICS documentation, the Ministry of Finance expressly indicated that “failure by the taxpayer to satisfy the presumption conditions introduced in Article 45a(1) of Regulation 282/2011 does not simultaneously signify denial of the possibility to apply the 0% rate with respect to an executed ICS transaction.” In such circumstances, the taxpayer “will be required to demonstrate, in accordance with applicable VAT Act provisions (Article 42(3)-(5) and (11)), that the condition for application of the 0% rate—namely, that goods were delivered to the purchaser in another Member State—has been satisfied”.

Supreme Administrative Court Resolution I FPS 1/10

The seven-judge resolution of the Supreme Administrative Court dated October 11, 2010 (file No. I FPS 1/10) retains foundational significance. The Court held that “for application of the 0% rate in an intra-Community supply of goods, it suffices that the taxpayer possess only certain evidence referenced in Article 42(3) of the Act, supplemented by documents indicated in Article 42(11) of the Act or other evidence in documentary form referenced in Article 180 § 1 of the Tax Ordinance Act, provided they collectively confirm the fact of dispatch and delivery of goods.”

The Supreme Administrative Court emphasized that evidence under Articles 42(3) and (4) of the VAT Act constitutes “not absolutely mandatory evidence, but merely relatively obligatory evidence”.

Current Interpretative Practice

Individual tax rulings issued by the Director of the National Tax Information continue to confirm a flexible approach to ICS documentation. In an interpretation dated July 4, 2025 (file No. 0111-KDIB3-3.4012.222.2025.2.JSU), the authority deemed sufficient various documentary variants, including email correspondence with the counterparty containing a statement acknowledging receipt of supplies, confirmations from the carrier’s internet-based tracking system, invoices for transport with payment confirmation, and even mere confirmation of payment receipt for goods.

Similarly, in an interpretation dated September 10, 2025 (file No. 0114-KDIP1-2.4012.411.2025.2.GK), the Director confirmed the availability of the 0% rate based upon a document set comprising an invoice, delivery document signed by the driver, and collective summary of deliveries prepared by the transport company.

Documenting intra-Community supply of goods for 0% VAT  – open-Ended Evidentiary Catalog

Polish tax provisions expressly indicate that documenting intra-Community supply of goods for 0% VAT, the document catalog in Article 42(11) of the VAT Act is illustrative (“in particular”), signifying that taxpayers may confirm execution of an ICS transaction through alternative documentation. Article 180 § 1 of the Tax Ordinance Act provides that “all evidence that may contribute to clarification of the matter and is not contrary to law shall be admitted”.

Practical Implications for Polish Taxpayers

Confirmation of Established Interpretative Doctrine. The CJEU’s judgment in FLO VENEER constitutes authoritative confirmation at the European level of a position that has functioned within Polish practice for some time. Taxpayers gain an additional, powerful argument in potential disputes with tax authorities that might adopt formalistic approaches to documentary requirements.

Evidentiary Hierarchy

The following hierarchy of documentary security emerges from the CJEU judgment and Polish practice:

Highest Tier – Satisfaction of Article 45a requirements: activates the dispatch presumption, shifting the burden of proof to the tax authority.

Intermediate Tier – Documents enumerated in Article 42(3) of the VAT Act (transport documents, cargo specifications): constitute the fundamental evidentiary catalog.

Supplementary Tier – Documents from Article 42(11) of the VAT Act and other evidence: may independently or in conjunction with primary documents establish an ICS transaction.

Practical Recommendations

Taxpayers should:

1. Endeavor to satisfy Article 45a requirements as the optimal solution.
2. Compile alternative evidence in the event full Article 45a documentation cannot be obtained—including commercial correspondence, confirmations from shipment tracking systems, evidence of payment for transport and goods.
3. Ensure transaction traceability—each piece of evidence should enable unambiguous linkage to a specific supply.
4. Document the entire process—from order placement, through goods release and transport, to delivery confirmation and payment.

Conclusions

The judgment in Case C-639/24, FLO VENEER, affirms a fundamental principle of European Union law: procedural and evidentiary provisions serve to establish material truth rather than to erect formal barriers. Article 45a of Implementing Regulation No. 282/2011 constitutes a facilitative, not restrictive, instrument—it establishes a presumption favorable to the taxpayer but does not exclude alternative evidentiary means.

Polish interpretative practice arguably anticipated the CJEU’s resolution, having adopted from the outset a flexible approach to ICS documentation. The FLO VENEER judgment nevertheless represents a significant reinforcement of this line, conferring upon it the authority of the highest court within the European judicial hierarchy.

The implications for tax practice are manifest: tax authorities bear an obligation to comprehensively assess all evidentiary material, rather than mechanically verifying whether the taxpayer possesses documents from a closed list. The material character of the ICS exemption—namely, actual movement of goods between Member States—remains both the necessary and sufficient condition, the demonstration of which is not confined to specified evidentiary categories.

Robert Nogacki

Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.

The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.

Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.

He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.

Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.

Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.

He believes that the best legal advice is the kind that means the client never has to appear in court.