Judgment;Summary — ECLI:EU:C:2025:627
Date: 2025-08-01
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-602/24 – 1 
Case C-602/24 
Request for a preliminary ruling 
Date received: 
17 September 2024 
Referring court:  
Wojewódzki Sąd Administracyjny w Warszawie (Poland) 
Date of the decision to refer: 
12 July 2024 
Party initiating the proceedings before the referring court: 
W. sp. z o.o. 
Other party to the proceedings: 
Dyrektor Izby Administracji Skarbowej w W. 
  
C-602/24 – 1 
[...] 
ORDER 
of 12 July 2024 
The Wojewódzki Sąd Administracyjny w Warszawie (Regional 
Administrative Court in Warsaw) […] 
[…] 
after considering, at the hearing on 12 July 2024, 
the case brought by W. sp. z o.o. with registered office in S. 
against the decision handed down by the Dyrektor Izby Administracji 
Skarbowej w W. (Director of the Tax Authority in W.) 
on […] November 2022 […] 
EN 
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concerning tax on goods and services for November and December 2017 and 
February, April and June 2018, 
orders: 
I. that the following questions be referred to the Court of Justice of the 
European Union for a preliminary ruling pursuant to Article 267 of the Treaty on 
the Functioning of the European Union […]: 1. Should Article 146(1)(b) of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax […] be interpreted to mean that a supply of goods declared by the 
taxable person (supplier) as an intra-Community supply of goods should be 
regarded as a supply for export in the event that the person acquiring the goods 
has exported them outside the European Union rather than to another Member 
State? 2. For the purpose of applying the exemption referred to in 
Article 146(1)(b) of Directive 2006/112/EC in the situation referred to in the first 
question, is it relevant if the person acquiring the goods has exported them outside 
the European Union in the absence of an agreement with the taxable person 
(supplier) or common arrangements with the latter, and instead on the basis of an 
independent decision and without the knowledge of the taxable person (supplier)? 
3. For the purpose of applying the exemption referred to in Article 146(1)(b) of 
Directive 2006/112/EC in the situation referred to in the first question, is it 
relevant if the export of the goods outside the European Union results from the 
findings of the tax authorities based on customs documents, and the content of the 
transport documents held by the taxable person (supplier) is inconsistent with 
these findings? 
II. […] [stay of proceedings] 
G R O U N D S 
1. Preliminary questions 
[…] 
[…] [admissibility – nature of the court] 
[…] 
[…] [anonymity] 
2. Legal framework 
2.1. European Union law 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (OJ L 347, 11.12.2006, p. 1, as amended; ‘Directive 
2006/112/EC’): 
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- Article 5(1) and (2): ‘For the purposes of applying this Directive, the following 
definitions shall apply: 
(1) “Community” and “territory of the Community” mean the territories of the 
Member States as defined in point (2); 
(2) “Member State” and “territory of a Member State” mean the territory of 
each Member State of the Community to which the Treaty establishing the 
European Community is applicable, in accordance with Article 299 of that Treaty, 
with the exception of any territory referred to in Article 6 of this Directive;’ 
- Article 14(1): ‘“Supply of goods” shall mean the transfer of the right to 
dispose of tangible property as owner.’ 
- Article 138(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, for 
another taxable person, or for a non-taxable legal person acting as such in a 
Member State other than that in which dispatch or transport of the goods began.’ 
- Article 146(1)(a) and (b): ‘Member States shall exempt the following 
transactions: (a) the supply of goods dispatched or transported to a destination 
outside the Community by or on behalf of the vendor; (b) the supply of goods 
dispatched or transported to a destination outside the Community by or on behalf 
of a customer not established within their respective territory, with the exception 
of goods transported by the customer himself for the equipping, fuelling and 
provisioning of pleasure boats and private aircraft or any other means of transport 
for private use;’ 
- Article 273: ‘Member States may impose other obligations which they deem 
necessary to ensure the correct collection of VAT and to prevent evasion, subject 
to the requirement of equal treatment as between domestic transactions and 
transactions carried out between Member States by taxable persons and provided 
that such obligations do not, in trade between Member States, give rise to 
formalities connected with the crossing of frontiers. 
The option under the first paragraph may not be relied upon in order to impose 
additional invoicing obligations over and above those laid down in Chapter 3.’ 
2.2. National law 
Act of 11 March 2004 on Tax on Goods and Services (consolidated text Journal of 
Laws 2017, Item 1221 with later amendments; ‘Act on Tax on Goods and 
Services’), in the version of the legislation that was in force in 2017 and 2018: 
- Article 2(8): ‘For the purposes of the following provisions: (…) “export of 
goods” shall mean a supply of goods dispatched or transported outside the 
territory of the European Union from the national territory: 
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(a) by or on behalf of the supplier; or 
(b) by or on behalf of a person acquiring the goods who is not established within 
the respective territory, with the exception of goods exported by the person 
acquiring the goods himself for the equipping or provisioning of pleasure boats 
and private aircraft or any other means of transport for private use, 
- provided that the export of the goods outside the territory of the European 
Union has been verified by the competent customs authority stipulated in the 
customs regulations (…).’ 
- Article 41(3): ‘The intra-Community supply of goods shall be zero-rated for 
VAT, subject to Article 42.’ 
- Article 41(4): ‘The export of the goods referred to in Article 2(8)(a) shall be 
zero-rated for VAT.’ 
- Article 41(6): ‘The export of the goods referred to in paragraphs 4 and 5 
shall be zero-rated for VAT provided that the taxable person has received the 
document confirming the export of the goods outside the territory of the European 
Union before the expiry of the deadline for filing a tax return for the given tax 
period.’ 
- Article 41(6a): ‘The document referred to in paragraph 6 shall be, in 
particular: 
1) a document in electronic format received via the computerised system used 
for handling export declarations or a print-out of this document verified by the 
competent customs body; 
2) a document in electronic format originating from the computerised system 
used for handling export declarations but received outside of this system, provided 
that its authenticity has been ensured; 
3) a written export declaration in hard-copy format not submitted via the 
computerised system used for handling export declarations or a copy thereof, 
verified by the competent customs body’. 
- Article 41(7): ‘If the condition referred to in paragraph 6 is not fulfilled, the 
taxable person shall not, in the records referred to in Article 109(3), declare the 
supply in the given tax period, but in the following period, applying a zero VAT 
rate, provided that the document referred to in paragraph 6 has been received 
before the expiry of the deadline for filing a tax return for said following period. 
In the event that this document has not been received within the period specified 
in the previous sentence, the applicable rates for the supply of those goods to the 
respective territory shall apply.’ 
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- Article 41(8): ‘Paragraph 7 shall apply in the event that the taxable person 
holds a customs document confirming the export procedure.’ 
- Article 41(9): ‘If the taxable person receives the document confirming the 
export of the goods outside the territory of the European Union at a later date than 
specified in paragraphs 6 and 7, this shall entitle the taxable person to adjust the 
tax due for the tax period during which the taxable person received the document.’ 
- Article 41(11): ‘The provisions of paragraph 4 […] shall apply mutatis 
mutandis to the export of the goods referred to in Article 2(8)(b) if the taxable 
person, before the expiry of the deadline for filing a tax return for the tax period in 
which the supply of goods was made, has received the document referred to in 
paragraph 6 which states the identity of the goods that were supplied and 
exported. Paragraphs 7 and 9 shall apply mutatis mutandis.’ 
3. Facts of the case 
3.1. Proceedings before the tax authorities 
3.1.1. In certain months in 2017 and 2018, W. sp. z o.o. (‘the Company’) recorded 
in its statement of tax on goods and services (value added tax, ‘VAT’) that it had 
supplied apples to A.E. LP with registered office in the United Kingdom, 
registered for VAT purposes in Latvia (‘A.E.’); this supply was shown on invoices 
and declared as an intra-Community supply of goods which was zero-rated for 
VAT. 
The supply was carried out on EXW terms (as per Incoterms). The transport 
organiser was to be A.E. According to the CMR consignment letters held by the 
Company and presented during the tax proceedings, the goods were to be 
transported and supplied from the place of loading in Poland to the destination in 
Lithuania by hauliers from Belarus, Russia and Poland. 
3.1.2. According to the findings of the tax authorities, the goods sold by the 
Company had not been exported from Poland to Lithuania as an intra-Community 
supply of goods; instead, A.E., as the person acquiring the apples, had exported 
these goods directly from Poland to Belarus, or in other words outside the customs 
area of the Community (European Union). 
The tax authorities made this finding on the basis of the customs declarations 
submitted by the customs clearance agent acting on behalf of and in the name of 
A.E. (IE-599 confirmations). There was full agreement as to the nature of the 
goods, their name, the number of boxes, the net weight, and the modes of 
transport used to move them from the place of loading to the customs office of 
exit, and then to Belarus; it was quite certain that the goods supplied by the 
Company had been exported outside the customs territory of the Union. 
3.1.3. The tax authorities also found that in the opinion of the tax authorities in the 
United Kingdom and Latvia, A.E. was an elusive and unreliable entity. The 
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Latvian tax administration was however able to confirm that A.E. had declared an 
intra-Community purchase of goods from the Company, and also an export to 
third countries (given the failure by A.E. to present documentation, details of this 
export were not available). 
The tax authorities have not confirmed whether, in the case involving the 
Company, tax evasion or abuse occurred at any point in the supply chain. 
3.1.4. In the opinion of the tax authorities, the intra-Community supply of goods 
(zero-rated for VAT) that was declared by the Company had not in fact taken 
place, since the goods were not transported to the territory of another Member 
State of the European Union. The Company had failed to verify properly the 
supply destination of the goods it had sold, contenting itself with the mere 
formality of ‘confirming’ that it had supplied them to Lithuania on the basis of the 
driver’s signature and the transport company’s stamp in the CMR documents. 
3.1.5. The tax authorities found that the sale of goods to A.E. constituted a 
domestic supply to Poland, taxable at the appropriate rate for the supply of such 
goods (5 %). 
The tax authorities also applied a penalty of 30 % to the VAT (calculated on the 
basis of the amounts over-declared by the Company in the individual tax periods 
as an excess of input VAT over output VAT to be reimbursed to its bank account). 
3.2. Proceedings before the administrative courts 
3.2.1. In an action brought against the appeal body’s decision before the Regional 
Administrative Court in Warsaw, the Company challenged the assumption that its 
supply of goods to A.E. had constituted a domestic sale. In the Company’s 
opinion, since the tax authorities had found that these goods were exported to 
Belarus by an entity acting in the name of and on behalf of the counterparty, an 
indirect export had taken place (Article 2(8)(b) of the Act on Tax on Goods and 
Services), which was zero-rated for VAT (Article 41(4) in conjunction with (11) 
of the Act on Tax on Goods and Services). 
3.2.2. In a judgment dated 19 May 2023 […], the Regional Administrative Court 
granted the action by repealing the tax authorities’ decisions at both instances. 
The Regional Administrative Court took the view that the Company was entitled 
to apply a zero VAT rate to the (indirect) export, even though it did not hold and 
had not presented a document confirming the export of the goods outside the EU, 
and the CMR documents that had been presented were intended to provide 
evidence of an intra-Community supply to Lithuania. In the opinion of the 
Regional Administrative Court, the tax authorities had found that the substantive 
requirements for an indirect export had been met by the Company; the 
counterparty had acquired from the Company the right to dispose of the goods as 
their owner, and had exported them to Belarus. Since the substantive requirements 
had been met, the principle of tax neutrality made it necessary to apply a zero 
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VAT rate (exemption with deductibility), even though the taxable person had not 
met certain formal requirements. 
3.2.3. The tax authority lodged a cassation appeal against this judgment. 
3.2.4. In a judgment dated 6 December 2023 […], the Supreme Administrative 
Court set aside the judgment handed down by the Regional Administrative Court 
in Warsaw and referred the matter back to the latter for re-examination. 
The Supreme Administrative Court found reasonable the pleas regarding a failure 
by the Regional Administrative Court to state reasons for its judgment, but also 
expressed a legal view regarding the possibility of reclassifying intra-Community 
supplies of goods as (indirect) exports in the specific circumstances of the case 
under consideration. 
It found that in view of the provisions relating to indirect exports (Article 2(8)(b) 
of the Act on Tax on Goods and Services, in conjunction with the remaining 
provisions regulating the application of a zero VAT rate to exports), the parties 
involved in the ‘supply for export’ transaction must implement it as such and with 
the same approach, or in other words as a single transaction of this type, at the 
point in time when the goods are supplied. For VAT purposes, the term ‘export’ 
only applies to a supply of goods that is intended from the outset, in the 
commercial understanding of the parties to the contract, to take place as a 
transaction involving these goods being dispatched or transported from Poland to 
a destination outside the European Union. An export within the meaning of 
Article 2(8) of the Act on Tax on Goods and Services cannot become a domestic 
supply merely because the person acquiring the goods, on the basis of an 
independent decision of his or her own and while disposing of the goods as their 
owner, and not owing to and as a result of previous trading arrangements with the 
seller, subsequently declares an export outside the territory of the European Union 
of the goods that had already been purchased. 
The Supreme Administrative Court emphasised that in the case under 
consideration, the parties to the transaction assumed that they were carrying out an 
intra-Community supply of goods when concluding said transaction. This is 
apparent from the documents that were drawn up (the invoices issued by the 
Company, the statements made in these invoices and the CMR documents 
presented). In the opinion of the Court of Cassation, it was impossible for the 
vendor (i.e. the seller) to deduce or anticipate, merely from this later decision by 
the person acquiring the goods – a decision taken without consulting the seller – to 
export the goods outside the European Union on the basis of a customs declaration 
submitted in the name of and on behalf of this person, that the domestic supply 
carried out to this person should be reclassified as an (indirect) export, given that 
at the time when the supply was carried out neither of the parties had expressed 
any intention or desire for it to be a ‘supply for export’. 
4. Reasons for referring the questions 
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4.1. The Supreme Administrative Court questions whether, in the circumstances 
of the present case and having regard to Article 146(1)(b) of Directive 
2006/112/EC, a supply of goods declared by the taxable person (supplier) as an 
intra-Community supply of goods can and should be regarded as an export supply 
in a situation where the person acquiring the goods has exported them outside the 
European Union rather than to another Member State? 
It is evident and undisputed between the parties in this case that there was no 
intra-Community supply of goods, since the goods were not exported to another 
EU Member State. Instead, the matter at dispute is the next deductive step; should 
it therefore be found that the supplier (the Company) carried out a domestic 
supply, and did an (indirect) export take place? 
These alternative possibilities for reclassifying the transaction result in different 
tax consequences, namely the application of a 5 % rate (for a domestic supply) or 
a zero rate, i.e. an exemption with deductibility (for an export). 
The question is in fact whether it is possible and necessary to reclassify a taxable 
activity (from an intra-Community supply of goods to an export) based on the 
objective circumstance of an export of these goods outside the customs territory of 
the Union. 
4.2. The Supreme Administrative Court questions whether, for the purpose of 
applying the exemption referred to in Article 146(1)(b) of Directive 2006/112/EC 
(exemption with deductibility or, in the terms used in the Polish Act, a zero VAT 
rate), it is relevant that the person acquiring the goods has exported them outside 
the European Union in the absence of an agreement with the taxable person 
(supplier) or common arrangements with the latter, and instead on the basis of an 
independent decision and without the knowledge of the taxable person (supplier)? 
After all, it is also clear in this case that an export outside the territory of the 
Community (the European Union) took place subsequent to a supply carried out 
by the taxable person, and that all of the documents held by the taxable person, as 
well as the statements made by the Company’s CEO when heard as a party to the 
proceedings, point to that person’s intention to carry out an intra-Community 
supply of goods rather than an (indirect) export. 
The Court of Cassation therefore correctly found that there was no unity of action 
by the parties to the transaction in this case; no mutual agreement had been 
reached between the supplier and the purchaser regarding the export of goods 
outside the territory of the Community (the European Union). On the contrary, 
although the person acquiring the goods (A.E.) had carried out the export, this had 
been done without the knowledge of the supplier (the Company) and, by that very 
fact, without reaching an agreement with the supplier (the Company). 
4.3. It is therefore essential to clarify whether the above circumstance (the lack 
of a consensus between the supplier and the person acquiring the goods regarding 
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the export that was carried out) is relevant to the proper classification of a taxable 
activity under the common system of value added tax. 
In the opinion of the Supreme Administrative Court, this question cannot be 
answered on the basis of the Court’s case-law to date. 
In the case pending before the domestic court, there is no doubt that the Company 
did not wish to carry out a domestic supply, and declared it as an intra-
Community supply of goods in accordance with its own belief regarding the 
nature of the completed transactions. It is also certain that the goods were not 
consumed within the territory of the Union. However, the exemption provided for 
in Article 146(1) of Directive 2006/112/EC is intended to ensure that supplies of 
goods are taxed at the place of destination of these goods, that is to say, the place 
where the exported goods are consumed (see judgment of 28 March 2019, Milan 
Vins, C-275/18, ECLI:EU:C:2019:265, paragraph 23; judgment of 8 November 
2018, Cartrans Spedition, C-495/17, EU:C:2018:887, paragraph 34). 
4.4. Supposing that this requirement were not imposed by EU law, however, it 
would not be evident what distinguishes on the one hand a situation in which two 
activities are performed in turn, namely a domestic supply and an export of goods 
by the person acquiring the goods, and on the other hand a situation in which an 
indirect export takes place, unless reference is to be had to whether the export of 
goods outside the territory of the Community (the European Union) was the 
subject of a mutual agreement between the parties to the transaction. 
The Supreme Administrative Court questions whether these two situations should 
be distinguished and, if so, what the distinguishing criterion should be (where the 
line should be drawn between them)? 
4.5. The Company itself (the supplier) declared the transactions as an intra-
Community supply of goods, and recorded them as such in its tax returns and the 
documents it presented during the tax proceedings (CMR consignment notes). 
This means that the Company presented documents that did not reflect the actual 
course of commercial transactions; as a result, it failed to present documents that 
did reflect the actual course of these transactions. 
In particular, this means that the Company did not fulfil the requirement arising 
under Polish domestic law as a condition precedent for application of the zero 
VAT rate (Article 41(11) in conjunction with (6)-(9) of the Act on Tax on Goods 
and Services), since it did not hold any customs documents confirming the export. 
These documents (IE-599 confirmations) were only collected by the tax 
authorities during the tax proceedings. 
4.6. According to the Court’s settled case-law, there are only two situations in 
which the failure to meet a formal requirement for the exercising of an individual 
right may result in the loss of entitlement to this right: when it prevents the 
production of conclusive evidence that the substantive requirements have been 
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satisfied, or when the taxable person has acted in bad faith by participating in tax 
evasion or an abuse of rights (see, among others, judgment of 28 March 2019, 
Milan Vins, C-275/18, ECLI:EU:C:2019:265, paragraphs 32-35; judgment of 
8 November 2018, Cartrans Spedition, C-495/17, EU:C:2018:887, paragraphs 40-
42; judgment of 17 October 2019, Unitel, C-653/18, ECLI:EU:C:2019:876, 
paragraphs 28-33). 
In the Court’s opinion, it is irrelevant whether the evidence used to deduce that the 
substantive requirements were met was presented by the taxable person or 
collected by the tax authorities (see the judgment of 28 March 2019, Milan Vins, 
C-275/18, ECLI:EU:C:2019:265; judgment of 8 November 2018, Cartrans 
Spedition, C-495/17, EU:C:2018:887, paragraph 52, and also, by way of analogy, 
the judgment of 29 February 2024, B2 Energy, C-676/22, ECLI:EU:C:2024:186, 
paragraph 38). Thought could be given to the extent to which the tax authorities 
are obliged of their own motion (on an ex officio basis) to investigate whether 
these requirements have been fulfilled and seek out the corresponding evidence; in 
the case underpinning the reference for a preliminary ruling, the tax authorities did 
in fact carry out evidence-gathering activities, which proved fruitful, since it 
turned out that the goods had undoubtedly been exported outside the territory of 
the Community (the European Union). 
4.7. The tax authorities are not claiming that any tax evasion or abuse was 
committed in the case at hand. The Court has found that the fact that goods were 
exported to the territory of a third country is not as such sufficient to rule out 
completely the existence of evasion committed to the detriment of the common 
system of VAT (see judgment of 17 October 2019, Unitel, C-653/18, 
ECLI:EU:C:2019:876, paragraph 37). In this case, however, it has not been 
demonstrated that such evasion occurred. 
4.8. The relevance of the supplier’s ignorance regarding the export of the goods 
outside the European Union, and the lack of any appropriate arrangements 
between the parties to the transaction in this connection, still remains uncertain in 
this context, however. It might be possible to identify such arrangements between 
the parties to the export transaction as a substantive requirement for finding that 
an export has taken place (in addition and separate to the condition that the export 
has actually taken place). 
The tax authorities and administrative courts would only be able to carry out such 
deliberations – regarding the possible reclassification of an intra-Community 
supply of goods into an export – after learning that a transaction was ineligible as 
an intra-Community supply of goods, and then finding that the substantive 
requirement for its recognition as an export was not covered by a mutual 
agreement between the parties to export the goods outside the customs territory of 
the Union. 
4.9. It seems to follow from the judgment dated 17 December 2020, BAKATI 
PLUS, C-656/19, ECLI:EU:C:2020:1045, that it is not the intention of the parties 
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to the transaction and their own appraisal of its nature (which may prove to be 
incorrect) that are decisive conditions for application of the exemption under 
Article 146(1)(b) of Directive 2006/112/EC, but instead the transfer from the 
supplier to the person acquiring the goods of the right to dispose of the goods as 
an owner, and the objective fact of exporting the goods outside the territory of the 
European Union. As the Court pointed out, ‘[such] transactions (…) constitute 
supplies of goods within the meaning of Article 146(1)(b) of Directive 
[2006/112/EC] if they meet the objective criteria upon which that concept is based 
(…)’ (paragraph 62). As regards the objective criteria, however, the export of 
goods is effected and the exemption of the supply of goods for export becomes 
applicable when the right to dispose of the goods as owner has been transferred to 
the person acquiring the goods and the supplier establishes that those goods have 
been dispatched or transported outside the European Union and that, as a result of 
that dispatch or that transport, they have physically left the territory of the 
European Union (see judgment of 17 December 2020, BAKATI PLUS, C-656/19, 
ECLI:EU:C:2020:1045, paragraph 56; see also judgment of 28 February 2018, 
Pieńkowski, C-307/16, EU:C:2018:124, paragraph 25; judgment of 19 December 
2013, BDV Hungary Trading, C-563/12, EU:C:2013:854, paragraph 24). 
When thus defining the substantive requirements for recognising a supply as a 
supply for export, the Court does not refer to a requirement for the supplier to 
reach an agreement with the purchaser concerning the export outside the territory 
of the European Union (or even for the supplier to be aware of such an export). 
4.10. The final question relates to what is more important in the circumstances of 
the dispute pending before the domestic court (or in other words what determines 
the nature of the transaction): the objective fact that goods (which had previously 
been supplied) were exported outside the territory of the European Union 
(meaning that the goods were not and will not be consumed within said territory, 
either in Poland or in another Member State), or the intention of the parties, 
reflected in the documents they drew up, including the tax returns submitted by 
the supplier (the Company). 
[…]