Judgment;Summary — ECLI:EU:C:2025:888
Date: 2025-11-13
Language of the case: Croatian
Court formation: Seventh Chamber
Procedure: Reference for a preliminary ruling
Origin: Croatia

Summary C-639/24 - 1 
Case C-639/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
30 September 2024 
Referring court: 
Upravni sud u Zagrebu (Croatia) 
Date of the decision to refer: 
18 September 2024 
Applicant: 
FLO VENEER d.o.o. 
Other party to the proceedings: 
Ministarstvo financija Republike Hrvatske, Samostalni sektor za 
drugostupanjski upravni postupak 
  
Subject matter of the main proceedings 
Examination of the lawfulness of a tax assessment by the Ministarstvo financija, 
Porezna uprava, Područni ured Sisak (Ministry of Finance, Tax Authority, Sisak 
Branch) dated 8 October 2020 and a decision by the Ministarstvo financija 
Republike Hrvatske, Samostalni sektor za drugostupanjski upravni postupak 
(Ministry of Finance of the Republic of Croatia, Independent Sector for Second-
Instance Administrative Procedure) dated 4 May 2021, on the basis of which the 
applicant was denied an exemption from value added tax (VAT) in relation to 
certain intra-Community supplies of goods which it performed in the period 
between 1 January 2020 and 31 March 2020. 
Subject matter and legal basis of the request 
The request for a preliminary ruling on the basis of Article 267 TFEU concerns 
the interpretation of Article 138(1) of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax (OJ 2006 L 347, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-639/24 
 
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p. 1) (‘the VAT Directive’) and Article 45a of Council Implementing Regulation 
(EU) No 282/2011 of 15 March 2011 laying down implementing measures for 
Directive 2006/112/EC on the common system of value added tax (recast) (OJ 
2011 L 77, p. 1) (‘Implementing Regulation No 282/2011’). 
Question referred for a preliminary ruling 
Should Article 138(1) of the VAT Directive, which concerns exemptions from 
VAT on intra-Community supplies of goods, and Article 45a of Implementing 
Regulation No 282/2011, which concerns evidence that goods have been 
dispatched or transported from a Member State to a destination outside its territory 
but within the Community, be interpreted as meaning that a supplier should be 
denied an exemption from VAT if it has failed to provide evidence that the 
conditions outlined in Article 45a of Implementing Regulation No 282/2011 have 
been met, or is the tax authority obliged – in the event that the supplier is not in 
possession of sufficient evidence for the presumption referred to in Article 45a of 
Implementing Regulation No 282/2011 to be made, but is in possession of 
evidence proving the physical movement of the goods from one Member State to 
the other – to examine the evidence presented and determine the facts and 
circumstances that are relevant to the exemption provided for in Article 138 of the 
VAT Directive, namely whether the goods were dispatched or transported from 
the Member State to a destination outside its territory but within the Community? 
Provisions of European Union law relied on 
Article 131 of the VAT Directive, which stipulates that the exemptions from VAT 
provided for in Chapters 2 to 9 of that directive are to apply in accordance with 
the conditions which the Member States are to lay down for the purposes of 
ensuring the correct and straightforward application of those exemptions and of 
preventing any possible evasion, avoidance or abuse. 
Article 138(1) of the VAT Directive reads as follows: 
‘1. Member States shall exempt the supply of goods dispatched or transported to a 
destination outside their respective territory but within the Community, by or on 
behalf of the vendor or the person acquiring the goods, where the following 
conditions are met: 
(a) the goods are supplied to another taxable person, or to a non-taxable legal 
person acting as such in a Member State other than that in which dispatch or 
transport of the goods begins; 
(b) the taxable person or non-taxable legal person for whom the supply is made 
is identified for VAT purposes in a Member State other than that in which the 
dispatch or transport of the goods begins and has indicated this VAT identification 
number to the supplier’. 
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Article 45a of Implementing Regulation No 282/2011 reads as follows: 
‘1. For the purpose of applying the exemptions laid down in Article 138 of 
Directive 2006/112/EC, it shall be presumed that goods have been dispatched or 
transported from a Member State to a destination outside its territory but within 
the Community in either of the following cases: 
(a) the vendor indicates that the goods have been dispatched or transported by 
him or by a third party on his behalf, and either the vendor is in possession of at 
least two items of non-contradictory evidence referred to in point (a) of 
paragraph 3 which were issued by two different parties that are independent of 
each other, of the vendor and of the acquirer, or the vendor is in possession of any 
single item referred to in point (a) of paragraph 3 together with any single item of 
non-contradictory evidence referred to in point (b) of paragraph 3 confirming the 
dispatch or transport which were issued by two different parties that are 
independent of each other, of the vendor and of the acquirer; 
(b) the vendor is in possession of the following: 
(i) a written statement from the acquirer, stating that the goods have been 
dispatched or transported by the acquirer, or by a third party on behalf of the 
acquirer, and identifying the Member State of destination of the goods; that 
written statement shall state: the date of issue; the name and address of the 
acquirer; the quantity and nature of the goods; the date and place of the arrival of 
the goods; in the case of the supply of means of transport, the identification 
number of the means of transport; and the identification of the individual 
accepting the goods on behalf of the acquirer; and 
(ii) at least two items of non-contradictory evidence referred to in point (a) of 
paragraph 3 that were issued by two different parties that are independent of each 
other, of the vendor and of the acquirer, or any single item referred to in point (a) 
of paragraph 3 together with any single item of non-contradictory evidence 
referred to in point (b) of paragraph 3 confirming the dispatch or transport which 
were issued by two different parties that are independent of each other, of the 
vendor and of the acquirer. 
The acquirer shall furnish the vendor with the written statement referred to in 
point (b)(i) by the tenth day of the month following the supply. 
2. A tax authority may rebut a presumption that has been made under 
paragraph 1. 
3. For the purposes of paragraph 1, the following shall be accepted as evidence 
of dispatch or transport: 
(a) documents relating to the dispatch or transport of the goods, such as a signed 
CMR document or note, a bill of lading, an airfreight invoice or an invoice from 
the carrier of the goods; 
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(b) the following documents: 
(i) an insurance policy with regard to the dispatch or transport of the goods, or 
bank documents proving payment for the dispatch or transport of the goods; 
(ii) official documents issued by a public authority, such as a notary, confirming 
the arrival of the goods in the Member State of destination; 
(iii) a receipt issued by a warehouse keeper in the Member State of destination, 
confirming the storage of the goods in that Member State’. 
Provisions of national law relied on 
Article 41(1)(a) of the Zakon o porezu na dodanu vrijednost (Law on Value 
Added Tax) (Narodne novine, Nos 73/13, 99/13, 148/13, 153/13, 143/14, 115/16, 
106/18 and 121/19) (‘the Law on VAT’), which transposed Article 138(1) of the 
VAT Directive into Croatian legislation. 
Opći porezni zakon (General Tax Law) (Narodne novine, Nos 115/16, 106/18 and 
121/19): 
- Article 6(1) and (2), according to which the tax authority is obliged to establish, 
in accordance with the law, all of the rights and obligations arising in connection 
with the tax and legal relationship, and to establish all of the facts and 
circumstances of relevance for issuing a lawful and correct decision, whereby 
circumstances which are advantageous to the taxable person are to be established 
with equal care; 
- Article 77, according to which the tax authority is to use all of the documentary 
evidence necessary to determine the facts and circumstances of relevance for 
taxation; and 
- Article 88, according to which in tax proceedings the burden of proof rests with 
the tax authority as regards the facts and circumstances that cause the tax to 
become chargeable (pursuant to Article 6(2) of the Opći porezni zakon (General 
Tax Law)), and with the taxable person as regards the facts and circumstances that 
cause a lowering or removal of the tax. 
Article 9 of the Zakon o općem upravnom postupku (Law on General 
Administrative Procedure) (Narodne novine, No 47/09) reads as follows: 
‘(1) An official of a public-law authority shall independently establish the facts 
and circumstances in the proceedings and, on the basis of the facts and 
circumstances thus established, give a decision regarding the administrative 
matter. 
(2) The official shall decide, using his or her discretion and on the basis of a 
conscientious and diligent assessment of each item of evidence separately and all 
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the evidence together, as well as on the basis of the results of the proceedings as a 
whole, which facts and circumstances will be regarded as established.’ 
Opinion of the Porezna uprava, Središnji ured (Tax Authority, Central Branch) 
dated 24 February 2020, concerning evidence for an exemption from VAT on 
intra-Community supplies of goods 
In that opinion, the porezna uprava (tax authority) states, inter alia, that Council 
Implementing Regulation (EU) 2018/1912 of 4 December 2018 amending 
[Implementing Regulation No 282/2011] as regards certain exemptions for intra-
Community transactions [(OJ 2018 L 311, p. 10)], which inserted in Implementing 
Regulation No 282/2011 Article 45a (specifying the evidence required for the 
purpose of gaining an exemption from VAT on intra-Community supplies of 
goods), has applied directly in all Member States since 1 January 2020. 
In addition to noting the documents referred to in Article 45a of Implementing 
Regulation No 282/2011 which the supplier must be in possession of in order to 
exercise the right to an the porezna uprava (tax authority) clarifies that the written 
statement from the acquirer referred to in Article 45a(1)(b)(i) of Implementing 
Regulation No 282/2011 does not need to be in a specific format (electronic or 
hard-copy), but must contain all the elements referred to in the latter provision. It 
also maintains that if the acquirer does not furnish the supplier with a written 
statement by the tenth day of the month following the supply, the latter may rely 
on the presumption that the goods have been dispatched or transported to another 
Member State, provided that the remaining conditions have been met, that is to 
say, that the supplier is in possession of two items of non-contradictory evidence 
as referred to in Article 45a(1)(a) and (b)(ii) of Implementing Regulation 
No 282/2011. 
In the event that the porezna uprava (tax authority) finds that certain items of 
evidence are not plausible, the supplier may prove the validity of the presumption 
that the goods have been dispatched or transported to another Member State and 
that the conditions for the exemption specified in Article 41 of [the Law on VAT] 
have been met using another of the documents referred to in Article 45a of 
Implementing Regulation No 282/2011. The porezna uprava (tax authority) 
emphasises that in order to gain an exemption from VAT on intra-Community 
supplies of goods, it is necessary to meet not only the conditions specified in 
Article 45a of Implementing Regulation No 282/2011, but also the conditions 
specified in Article 41 of [the Law on VAT]. 
It goes on to state that if the supplier or acquirer dispatches or transports goods 
using its own means of transport, the validity of the presumption that the transport 
has been performed cannot be demonstrated using the items of non-contradictory 
evidence referred to in Article 45a(1)(a) and (b)(ii) of Implementing Regulation 
No 282/2011. If the acquirer performs the dispatch or transport of goods to 
another Member State using its own means of transport, the supplier must 
therefore have in its possession, as evidence, an invoice and the other documents 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-639/24 
 
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available, for example the items of evidence referred to in Article 45a of 
Implementing Regulation No 282/2011, proof of payment, an order form, proof of 
shipment and similar, and also a written statement from the acquirer. 
Succinct presentation of the facts and procedure in the main proceedings 
1 During the period between 1 January 2020 and 31 March 2020, the applicant, who 
is a supplier from the Republic of Croatia, supplied oak logs to an acquirer in 
Slovenia, and issued invoices totalling 1 562 616.64 kuna (HRK) 
(EUR 209 930.20) to the acquirer in connection with the supply. During a tax 
inspection, the tax authority of first instance found, in a tax assessment dated 
8 October 2020, that the conditions for granting an exemption from VAT had not 
been met, and that the applicant was obliged to pay VAT on the aforementioned 
sum; the VAT amounted to HRK 390 654.16. The applicant, as the supplier, had 
not transported the goods, and the goods had not been transported by a third party 
on its behalf. 
2 During the tax inspection the applicant presented to the tax authority not only the 
invoices, but also documents containing proof that the goods had been shipped, 
waybills (‘CMR notes’) and statements signed by the applicant and the acquirer 
concerning the dispatch of the goods. The tax authority found that the applicant 
had not supplied documents confirming that the goods had been shipped; 
however, in view of the fact that such documents, signed by the applicant and the 
customer, were included in the files submitted to the referring court, it can be 
concluded that they must have been presented by the applicant during the tax 
inspection. The CMR notes that were presented contain the signatures and stamps 
of the applicant (consignor), recipient and haulier, but do not, according to the tax 
authority’s findings, specify the place and date of acceptance of the goods. The 
CMR notes which were enclosed with the application by the applicant but which 
are not included in the files submitted to the referring court indicate a place of 
supply (Videm, Dobrepolje, Slovenia) but not a date of supply. As regards the 
statements concerning the dispatch of the goods, the tax authority found that those 
statements did not indicate the date and place of arrival of the goods in Slovenia, 
but instead merely contained a declaration by the acquirer that it would dispatch 
the goods from Croatia to Slovenia. The purchaser furthermore indicated in the 
statements that the goods would be dispatched in heavy goods vehicles, and 
provided the registration numbers of those vehicles together with the invoice 
numbers. During the inspection, the applicant presented copies of the statements 
that had previously been supplied, supplemented by details regarding the place 
(Videm, Dobrepolje) and date of arrival of the goods; that date was identical to the 
date on which the invoice had been issued and the date of the statement. The 
statements in question therefore contain the following: the date of issue, the name 
and address of the acquirer, a reference to an invoice containing details of the 
quantity and nature of the goods, the date and place of the arrival of the goods, 
and the identification number of the means of transport. 
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3 The applicant brought a complaint against the decision by the tax authority of first 
instance, which was annulled in a decision by the Ministarstvo financija 
Republike Hrvatske, Samostalni sektor za drugostupanjski upravni postupak 
(Ministry of Finance of the Republic of Croatia, Independent Sector for Second-
Instance Administrative Procedure) dated 4 May 2021. 
The essential arguments of the parties in the main proceedings 
4 The applicant claims that the wording of Article 45a of Implementing Regulation 
No 282/2011 clearly reveals the legislature’s intention – by specifying in detail the 
documentation that the supplier must be in possession of in order to gain an 
exemption from VAT on supplies of goods to another Member State – to 
harmonise and standardise the tax treatment of such supplies and to make it easier 
to prove that the conditions for the exemption have been met, rather than to depart 
from the principle of fiscal neutrality. It asserts that such an interpretation is 
consistent with the remaining principles upon which the EU tax system is based 
and with the principles governing the burden of proof in that connection. It claims 
that if, in the case of a given supply, the taxable person is in possession of the 
documentation specified in Article 45a of Implementing Regulation No 282/2011, 
there is a legal presumption that that supply is exempt from VAT, and that the tax 
authorities may, under certain conditions, rebut that presumption and refuse to 
grant the taxable person the right to an exemption from VAT. The applicant 
emphasises that in such instances, the taxable person loses the right to an 
exemption despite being in possession of the documentation specified in 
Article 45a of Implementing Regulation No 282/2011. The possibility that the tax 
authorities might refuse to recognise the right to an exemption even though the 
taxable person is in possession of the documentation specified in Article 45a of 
Implementing Regulation No 282/2011 also indicates that the intention was not to 
depart from the principle of fiscal neutrality, but to facilitate the exercise of the 
right to an exemption, and to determine where the burden of proof should rest. In 
this respect, the list of documents in Article 45a of Implementing Regulation 
No 282/2011 is not exhaustive, but is instead intended to make it easier for taxable 
persons to furnish evidence that they have met the conditions for an exemption 
from VAT on supplies; a taxable person in possession of such documentation does 
not need to prove that the conditions have been met, as it is presumed that they 
have been met unless the tax authorities rebut that presumption. However, if the 
taxable person is not in possession of the documentation specified in Article 45a 
of Implementing Regulation No 282/2011, it cannot rely on that presumption, and 
must in each individual case furnish evidence that all of the conditions laid down 
for an exemption from VAT have been met. In such a situation, however, the 
burden of proof rests with the taxable person. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court wishes to point out that Article 45a of Implementing 
Regulation No 282/2011 specifies the evidence required to apply for an exemption 
from VAT on intra-Community supplies of goods on the basis of Article 138 of 
the VAT Directive. In each of the cases referred to in Article 45a(1)(a) or (b) of 
Implementing Regulation No 282/2011, it is presumed that the goods have been 
dispatched or transported from the Member State to a destination outside its 
territory but within the Community. This means that the basic condition is deemed 
to have been met in those cases, but the other conditions referred to in Article 138 
of [the VAT Directive] must also be met in order to be able to apply the 
exemption from VAT. Pursuant to Article 45a(2) of Implementing Regulation 
No 282/2011, the tax authority may rebut that presumption. 
6 In view of the fact that the goods were not dispatched or transported by the 
applicant itself or by a third party acting on its behalf, Article 45a(1)(b) of 
Implementing Regulation No 282/2011 applies to the applicant’s situation. In 
order for the presumption described in that provision to be valid, the applicant 
must be in possession of the following: a written statement from the acquirer, as 
referred to in Article 45a(1)(b)(i) of Implementing Regulation No 282/2011, and 
two items of evidence as referred to in Article 45a(3)(a) of that implementing 
regulation, or one item of evidence as referred to in Article 45a(3)(a) and one item 
of evidence as referred to in Article 45a(3)(b) thereof. 
7 The referring court wishes to point out that the report produced on the basis of the 
tax inspection does not conclude the proceedings relating to that tax inspection, 
but merely serves as an interim procedural act informing the taxable person about 
the facts established by the tax authority of first instance and the possibility of 
submitting observations; it should thus be noted that during the tax inspection, the 
applicant presented the tax authority with a written statement from the acquirer 
(statement concerning the dispatch of the goods) as referred to in 
Article 45a(1)(b)(i) of Implementing Regulation No 282/2011. It follows from the 
foregoing that the applicant is in possession of a written statement from the 
acquirer as referred to in Article 45a(1)(b)(i) of Implementing Regulation 
No 282/2011 and one item of evidence as described in Article 45a(3)(a) of 
Implementing Regulation No 282/2011 (the – signed – CMR notes, which, 
contrary to the findings of the porezna uprava (tax authority), specify the place of 
supply and contain details which all correspond to the details shown on the 
invoices, documents confirming the shipping of the goods, and statements, but 
which are vitiated by a formal defect, as they do not specify the date of supply), 
but is not in possession of any of the items of evidence referred to in 
Article 45a(3)(b) of Implementing Regulation No 282/2011, from which it is 
apparent that the conditions for the presumption referred to in Article 45a(1)(b) of 
that implementing regulation have not been met. 
8 It is apparent from the grounds of the decision by the tax authorities that those 
authorities are in no doubt as to the fact that the goods really were transported 
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from Croatia to Slovenia; instead, they believe that the evidence presented is 
vitiated by the formal defects referred to above (the CMR notes do not specify the 
date of supply) and that, based on that failure to meet the conditions for the 
presumption referred to in Article 45a of Implementing Regulation No 282/2011, 
the applicant is not entitled to an exemption. 
9 The referring court wishes to refer to the case-law of the Court of Justice resulting 
from the judgment of 9 February 2017, Euro Tyre (C-21/16, EU:C:2017:106), in 
which the Court found that the principle of fiscal neutrality requires that an 
exemption from VAT be allowed if the substantive conditions are satisfied, even 
if the taxable person has failed to comply with some of the formal requirements 
(paragraph 36 and the case-law cited), and that, according to the Court’s case-law, 
there are only two situations in which the failure to meet a formal requirement 
may result in the loss of entitlement to an exemption from VAT (paragraph 38 and 
the case-law cited): (1) the situation of a taxable person who has intentionally 
participated in tax evasion which has jeopardised the operation of the common 
system of VAT, which means that that taxable person cannot invoke the principle 
of fiscal neutrality for the purposes of an exemption from VAT (paragraph 39 and 
the case-law cited), and (2) the situation in which non-compliance with a formal 
requirement may lead to the refusal of an exemption from VAT if that non-
compliance would effectively prevent the production of conclusive evidence that 
the substantive requirements have been satisfied (paragraph 42 and the case-law 
cited). The referring court wishes to state that there is nothing in the case files to 
suggest that either of those two situations applies to the present case. However, in 
view of the fact that Article 45a – which specifies the evidence which can be used 
as a basis for establishing that goods have been dispatched or transported from the 
territory of the Member State of supply – has in the meantime been inserted in 
Implementing Regulation No 282/2011, the referring court wishes to ask whether 
the exemption from VAT specified in Article 138 of the VAT Directive applies if 
the conditions for the existence of the presumption referred to in Article 45a of 
Implementing Regulation No 282/2011 have not been met. In other words, can the 
tax authorities refuse to grant the right to an exemption from VAT on the grounds 
that the vendor is not in possession of the evidence of the validity of that 
presumption referred to in Article 45a of Implementing Regulation No 282/2011, 
even if the taxable person has presented evidence that the goods were dispatched 
or transported from the Member State to a destination outside its territory but 
within the Community? 
10 The referring court wishes to emphasise that it does not follow from Article 45a of 
Implementing Regulation No 282/2011 that the taxable person must be in 
possession of evidence of the validity of the presumption referred to in that 
provision in order to prove that the goods have been dispatched or transported 
from the Member State to a destination outside its territory but within the 
Community, and that the fact that the taxable person is not in possession of that 
evidence does not mean that the goods have not been dispatched or transported 
from the Member State to a destination outside its territory but within the 
Community. 
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11 In the referring court’s view, if the conditions for the presumption referred to in 
Article 45a of Implementing Regulation No 282/2011 have not been met, and if 
the national legal system does not lay down any rules for proving that goods have 
been dispatched or transported for the purpose of exercising the right to an 
exemption from VAT, the tax authority is obliged to assess, conscientiously and 
diligently, each item of evidence separately and all the evidence together and, on 
the basis of the results of the proceedings as a whole, establish the facts that are of 
relevance to taxation, that is to say, whether the goods were dispatched or 
transported from the Member State to a destination outside its territory but within 
the Community. The tax authorities cannot claim that the goods were not 
dispatched or transported from the Member State to a destination outside its 
territory but within the Community on the grounds that the evidence presented is 
vitiated by formal defects. This would render the right to an exemption from VAT 
contingent on whether formal requirements have been met, with no consideration 
given to whether the substantive requirements had in fact been satisfied. It can be 
concluded from this that if the conditions for the presumption referred to in 
Article 45a(1)(a) or (b) of Implementing Regulation No 282/2011 are not met, this 
does not automatically mean that the exemption from VAT does not apply. In this 
instance, the supplier can prove that the conditions for an exemption from VAT as 
outlined in Article 138 of the VAT Directive have been met.