1 This request for a preliminary ruling 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, p. 1), as amended by Council Directive (EU) 2018/1910 of 4 December 2018 (OJ 2018 L 311, p. 3) (‘the VAT Directive’), and of Article 45a of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112 (OJ 2011 L 77, p. 1), as amended by Council Implementing Regulation (EU) 2018/1912 of 4 December 2018 (OJ 2018 L 311, p. 10) (‘Implementing Regulation No 282/2011’).
2 The request has been made in proceedings between FLO VENEER d.o.o. and the Ministarstvo financija Republike Hrvatske, Samostalni sektor za drugostupanjski upravni postupak (Ministry of Finance of the Republic of Croatia, Department for Second-Instance Administrative Procedure) (‘the Ministry of Finance’) concerning the exemption in respect of intra-Community supplies of goods from value added tax (VAT).
3 Under Article 138(1) of the VAT Directive: ‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the [European] 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.’
4 Article 45a of Implementing Regulation No 282/2011 provides: ‘1. For the purpose of applying the exemptions laid down in Article 138 of [the VAT Directive], it shall be presumed that goods have been dispatched or transported from a Member State to a destination outside its territory but within the [European] 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; (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.’
5 Recitals 2 to 5 of Implementing Regulation 2018/1912 are worded as follows: ‘(2) [The VAT Directive] sets out a number of conditions for the exemption of supplies of goods from VAT in the context of certain intra-Community transactions. One of those conditions is that the goods have to be dispatched or transported from one Member State to another. (3) However, the divergent approach amongst Member States in the application of those exemptions for cross-border transactions has created difficulties and legal uncertainty for businesses. This is contrary to the objective of enhancing intra-Community trade and to the abolition of the fiscal borders. It is therefore important to specify and harmonise the conditions under which the exemptions can apply. (4) As cross-border VAT fraud is primarily linked to the exemption for intra-Community supplies, it is necessary to specify certain circumstances in which goods should be considered as having been dispatched or transported from the territory of the Member State of supply. (5) In order to provide a practical solution for businesses and also to provide assurance for tax administrations, two rebuttable presumptions should be introduced in [Implementing Regulation No 282/2011].’
6 FLO VENEER is a trading company established in Croatia which sells oak logs. That company was the subject of a tax inspection during which it was found that FLO VENEER had sent invoices in respect of the supply of oak logs to an acquirer in Slovenia in respect of the period from 1 January to 31 March 2020.
7 In the course of that tax inspection, FLO VENEER submitted written statements from the acquirer, as laid down in Article 45a(1)(b)(i) of Implementing Regulation No 282/2011, together with invoices, certificates of dispatch of the goods and consignment notes (CMR). Those written statements are provided for by the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956, as amended by the Protocol signed in Geneva on 5 July 1978.
8 On 8 October 2020, the Ministarstvo financija, Porezna uprava, Područni ured Sisak (Ministry of Finance, Local Tax Office, Sisak, Croatia) issued a VAT assessment notice, taking the view that FLO VENEER had benefited, in breach of the law, from an exemption from VAT in relation to the supplies of goods at issue. It is apparent from the grounds of that assessment notice that that ministry did not dispute that those goods had actually been transported from Croatia to Slovenia. It considered, however, that the evidence produced by FLO VENEER did not establish that the conditions for exemption from VAT laid down in Article 45a(1)(b) of Implementing Regulation No 282/2011 were satisfied. By decision of the Ministry of Finance of 4 May 2021, the complaint of FLO VENEER lodged against that assessment notice was rejected.
9 FLO VENEER brought an action before the Upravni sud u Zagrebu (Administrative Court, Zagreb, Croatia), which is the referring court. It submits that, by setting out in detail the documentation relating to the exempt supplies as intra-Community supplies, Article 45a of Implementing Regulation No 282/2011 enables taxable persons to demonstrate more easily that the conditions for the exemption of a supply of goods dispatched or transported to a destination outside a Member State but within the European Union are satisfied. In accordance with that provision, the conditions for exemption are presumed to be satisfied where the tax authorities are not able to successfully challenge that presumption. However, where the taxable person is not in possession of the documentation referred to in Article 45a of Implementing Regulation No 282/2011, he or she has to demonstrate, on a case-by-case basis, that all the conditions for exemption are satisfied.
10 The referring court observes that the Court held, in the judgment of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraphs 36, 38, 39 and 42), 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.
11 In that context, it has doubts as to whether the exemption provided for in Article 138 of the VAT Directive may apply even though the conditions capable of giving rise to the presumption laid down in Article 45a of Implementing Regulation No 282/2011 are not satisfied. In addition, it questions whether, in such a case, it is for the tax authority to examine all the evidence for the purpose of establishing the existence of the intra-Community supply.
12 In those circumstances, the Upravni sud u Zagrebu (Administrative Court, Zagreb) decided to stay the proceedings and to refer the following question to the Court of Justice 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 [European Union], 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 [European Union]?’
13 By its question, the referring court asks, in essence, whether Article 138(1) of the VAT Directive and Article 45a of Implementing Regulation No 282/2011 must be interpreted as precluding, first, an exemption from VAT under Article 138(1) of the VAT Directive being refused on the sole ground that evidence of the existence of an intra-Community supply as provided for in Article 45a of Implementing Regulation No 282/2011 has not been provided and, secondly, the refusal of the national tax authorities to assess any evidence produced for the purpose of determining that the goods were dispatched or transported from a Member State to a destination outside its territory but within the European Union, other than in the cases of presumption provided for in Article 45a(1) of Implementing Regulation No 282/2011.
14 Article 138(1) of the VAT Directive provides, in essence, that Member States are to exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the European Union, by or on behalf of the vendor or the person acquiring the goods, where certain conditions are met. It is necessary that those 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. It is also necessary that the taxable person or non-taxable legal person for whom the supply is made is registered for VAT purposes in a Member State other than that in which the dispatch or transport of the goods begins and has indicated that VAT identification number to the supplier.
15 Article 45a of Implementing Regulation No 282/2011 lays down, for the purpose of applying the exemptions in Article 138 of the VAT Directive, rules relating to the intra-Community supply of goods. In particular, Article 45a of that implementing regulation provides that, in essence, it is to be presumed that goods have been dispatched or transported from a Member State to a destination outside its territory but within the European Union in the cases provided for in paragraph 1(a) or (b) thereof. Accordingly, it is necessary, in essence, that the vendor of those goods be in possession of documents satisfying the specific requirements which are referred to in those provisions. However, under Article 45a(2) of that implementing regulation, a tax authority may rebut that presumption.
16 As regards the literal interpretation of Article 45a of Implementing Regulation No 282/2011, it must be noted that that article lists the cases in which there is a presumption that the goods were dispatched or transported from a Member State to a destination outside its territory but within the European Union, for the purposes of the VAT exemption provided for in Article 138(1) of the VAT Directive. It is apparent from the wording of Article 45a of that implementing regulation that that article lays down the cases in which a presumption applies but does not set out an exhaustive list of the evidence necessary for establishing the existence of an intra-Community supply. Consequently, where the conditions for the application of the presumption are not satisfied, the tax authorities are required to assess any evidence provided by the vendor of the goods for the purpose of determining whether the vendor has succeeded in demonstrating that those goods were the subject of an intra-Community supply.
17 Similarly, Article 138(1) of the VAT Directive does not make the grant of the exemptions provided for by that article conditional upon the vendor being in possession of specific evidence.
18 That interpretation is supported by the objectives pursued by Article 45a of Implementing Regulation No 282/2011 and the VAT Directive. As regards recitals 3 to 5 of Implementing Regulation 2018/1912, which inserted Article 45a into Implementing Regulation No 282/2011, those recitals bear out that the presumption at issue was envisaged, in essence, for the purpose of facilitating the production of evidence in respect of the application of the exemption relating to intra-Community supplies, in the interest of businesses and tax authorities, without excluding the possibility of producing evidence other than the evidence referred to by that presumption.
19 It should be noted that the taking into account, by the tax authorities, of evidence other than that provided for in Article 45a of Implementing Regulation No 282/2011 does not preclude the objectives of Implementing Regulation 2018/1912 which consist in promoting intra-Community trade and preventing fraud. By contrast, if the vendors of the goods could not rely on all evidence, those vendors not in possession of the evidence referred to in Article 45a of Implementing Regulation No 282/2011 would be deprived of the exemption at issue on account of the failure to comply with a formal requirement, even though the intra-Community supply of goods actually took place. Accordingly, the objective of promoting intra-Community trade would be undermined.
20 It should also be noted that, according to the case-law of the Court, Article 138(1) of the VAT Directive requires Member States to exempt from VAT supplies of goods which satisfy the conditions listed in that article. In addition, according to the same case-law, formal requirements cannot undermine the vendor’s entitlement to exemption from VAT where the substantive conditions for an intra-Community supply are satisfied. Similarly, the principle of fiscal neutrality requires that an exemption from VAT be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (see, to that effect, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraphs 23, 32, 35 and 36). In that context, it should be stated that 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. In the first place, the principle of fiscal neutrality cannot be invoked for the purposes of an exemption from VAT by a taxable person who has intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT. In the second place, 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 (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraphs 38, 39 and 42).
21 It is also apparent from the case-law that, with a view to the exemption from VAT, the tax authorities must take proper account of all the information in their possession for the purposes of examining whether those documents may, where necessary, substantiate the likelihood of the actual intra-Community supply (judgment of 29 February 2024, B2 Energy, C‑676/22, EU:C:2024:186, paragraph 36).
22 In the light of all the foregoing considerations, the answer to the question raised is that Article 138(1) of the VAT Directive and Article 45a of Implementing Regulation No 282/2011 must be interpreted as, first, precluding an exemption from VAT under Article 138(1) of the VAT Directive being refused on the sole ground that evidence of the existence of an intra-Community supply as provided for in Article 45a of Implementing Regulation No 282/2011 has not been provided and, secondly, requiring the national tax authorities to assess any evidence produced for the purpose of determining that the goods were dispatched or transported from a Member State to a destination outside its territory but within the European Union, other than in the cases of presumption provided for in Article 45a(1) of Implementing Regulation No 282/2011.
23 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.