CJEU confirms that VAT exemption for intra-Community supplies can be substantiated by documentation not mentioned in the Implementing Regulation

On 13 November 2025, the Court of Justice of the European Union (“CJEU”) released its ruling in the case of FLO VENEER (C-639/24). The central issue in the case was whether the VAT exemption for intra-Community supplies, as defined under the VAT Directive, can be substantiated by documentation that is not included in the list set out in the Implementing Regulation accompanying the Directive. The details of the case are examined in the following Client Alert by Senior Associate János Pásztor and Associates Bence Kálmán and Bálint Apáthy.

Case background

FLO VENEER d.o.o., a Croatian company selling oak logs, was audited after issuing invoices between 1 January and 31 March 2020 to a Slovenian purchaser. The company submitted written statements from the acquirer as required under Article 45a of Implementing Regulation 282/2011, in the audit, along with invoices, proof of dispatch and CMR consignment notes.

Nevertheless, the Croatian authorities concluded that FLO VENEER was not entitled to VAT exemption, despite acknowledging that the goods were transported from Croatia to Slovenia.

FLO VENEER challenged the decision before the Administrative Court in Zagreb, arguing that Article 45a establishes a clear framework for proving intra-EU supplies by creating a presumption of exemption when the required documents are provided, unless rebutted by tax authorities. Where such documents are missing, businesses must prove compliance on a case-by-case basis.

The Zagreb Administrative Court referred the case to the CJEU for a preliminary ruling.

Referred question

The referring court essentially asked whether Article 138(1) of the VAT Directive and Article 45a of Implementing Regulation 282/2011 should be interpreted as prohibiting two practices: (i) denying VAT exemption solely because the supplier did not provide the specific documents listed in Article 45a and (ii) refusing to assess other evidence submitted by the supplier to establish that the goods were dispatched or transported from one Member State to another within the EU.

The ruling of the CJEU

Article 138(1) of the VAT Directive provides that Member States must, subject to certain conditions, exempt goods dispatched or transported from their territory to another Member State within the EU from VAT. These conditions include that the goods be supplied to a person acting as a taxable person or a non-taxable legal entity in a Member State other than the one of dispatch and that the purchaser has a valid VAT identification number in that other Member State and has communicated it to the supplier.

Article 45a of Implementing Regulation 282/2011 sets out rules for applying the exemptions under Article 138. It introduces a rebuttable presumption that goods have been dispatched or transported from one Member State to another when the supplier holds specific documents listed in paragraph 1(a) or (b). However, this presumption is not exhaustive: the provision does not limit the types of evidence that may be used to establish an intra-Community supply. Consequently, where the presumption does not apply, tax authorities are required to assess all evidence provided by the supplier to determine whether the substantive conditions for exemption are met.

This interpretation is consistent with the objectives of the VAT Directive and the Implementing Regulation. The presumption under Article 45a was introduced to simplify proof for businesses and tax authorities, not to exclude other forms of evidence. Denying exemption solely because the supplier does not hold the documents listed in Article 45a would undermine the principle of fiscal neutrality and the aim of facilitating intra-EU trade.

The CJEU has confirmed that formal requirements cannot override substantive conditions for exemption, except in two cases: (i) where the taxable person intentionally participates in tax fraud or (ii) where failure to comply with formal requirements makes it impossible to establish that the substantive conditions are met (see Euro Tyre, C‑21/16). Recent case law (B2 Energy, C‑676/22) further emphasises that tax authorities must consider all available evidence to verify whether an intra-Community supply has actually occurred.

Key takeaways of the ruling

VAT exemption cannot be denied solely for lack of Article 45a documents

The CJEU held that the absence of the specific documents listed in Article 45a of Implementing Regulation 282/2011 does not automatically justify refusal of VAT exemption for intra-Community supplies.

Article 45a creates a presumption, not an exclusive proof requirement

The listed documents (e.g. CMR, written statements) establish a rebuttable presumption of transport, but other evidence can also demonstrate that goods were dispatched to another Member State.

Tax authorities must assess all available evidence

Where the presumption does not apply, authorities are obliged to evaluate any evidence provided by the supplier to determine whether the substantive conditions under Article 138(1) of the VAT Directive are met.

Formal requirements cannot override substantive conditions

The principle of fiscal neutrality requires that exemption be granted if the material conditions are satisfied, even if certain formalities are missing –except in cases of fraud or where non-compliance makes verification impossible.