The Contents of Highlights & Insights on European Taxation, Issue 1, 2026

Please find below a selection of articles published this month (January 2026) in Highlights & Insights on European Taxation, plus one freely accessible article.

Highlights & Insights on European Taxation (H&I) is a publication by Wolters Kluwer Nederland BV.

The journal offers extensive information on all recent developments in European Taxation in the area of direct taxation and state aid, VAT, customs and excises, and environmental taxes.

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Year 2026, no. 1     

TABLE OF CONTENTS 

GENERAL TOPICS

– MEPs back harmonised EU framework for innovative companies. 28th regime

(comments by the Editorial Board) (H&I 2026/18)

– Ferrieri and Bonassisa v Italy (40607/19 and 34583/20). Access to bank data in tax audits. Right to respect private life. European Court of Human Rights

(comments by Edwin Thomas) (H&I 2026/16)

DIRECT TAXATION, LEGISLATION

– Commission Notice: Side-by-Side system under EU Pillar 2 Directive

(comments by the Editorial Board) (H&I 2026/14)

DIRECT TAXATION, LEGISLATION

– Banca Mediolanum (C-92/24, C-93/24 and C-94/24). Levy for more than 5% of dividends received by financial intermediaries from foreign subsidiaries under Italian regional tax precluded. Court of Justice

(comments by Alexander Fortuin) (H&I 2026/17)

INDIRECT TAXATION, CASE LAW

– FLO VENEER (C-639/24). VAT exemption cannot be denied solely for missing proof of intra-Community supply. Tax authorities must evaluate all evidence of goods dispatch or transport. Court of Justice

(comments by Pietro Bricchetto) (H&I 2026/25)

– Brose Prievidza (C-234/24). VAT refund cannot be refused solely because goods remain in Member State of supplier, unless part of a single economic supply. Court of Justice

(comments by Svetlin Krastanov) (H&I 2026/24)

– MS KLJUČAROVCI (T-646/24). Triangular transactions valid despite direct delivery. VAT benefits denied in cases of fraud. General Court

(comments by Kevin van Abswoude) (H&I2026/10)

FREE ARTICLE

– FLO VENEER (C-639/24). VAT exemption cannot be denied solely for missing proof of intra-Community supply. Tax authorities must evaluate all evidence of goods dispatch or transport. Court of Justice

(comments by Pietro Bricchetto) (H&I 2026/25)

The judgment of the Court of Justice of the European Union (hereinafter: the ‘CJ’) in FLO VENEER (CJ 13 November 2025, C-639/24 FLO VENEER, ECLI:EU:C:2025:888) 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 (hereinafter: ‘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 (hereinafter: ‘the VAT Implementing Regulation’).

The case focuses on the relationship between the substantive conditions governing the VAT exemption for intra-Community supplies and the evidentiary presumption introduced by Article 45a of the VAT Implementing Regulation as of 2020. The issue raised is relatively straightforward, as reflected in the procedural and structural features of the judgment: it was decided without an Opinion of the Advocate General (hereinafter: the ‘AG’) – thus suggesting that the questions referred raised no new point of law within the meaning of Article 20 of Protocol (No. 3) on the Statute of the Court of Justice of the European Union – by a chamber of three judges, and in a limited number of concise paragraphs. Against that background, the judgment is best read as a confirmation and consolidation of settled principles rather than as a significant development of the Court’s case law.

The dispute arose in Croatia following a tax audit concerning supplies of oak logs made by FLO VENEER d.o.o., a Croatian taxable person, to an acquirer established in Slovenia during the first quarter of 2020. The supplier treated the supplies as exempt intra-Community supplies under Article 138(1) of the VAT Directive. The transport of the goods was organised by the acquirer. During the tax audit, the supplier produced invoices, CMR waybills, and written statements from the acquirer attesting that the goods had been dispatched from Croatia and received in Slovenia.

The Croatian tax authorities nevertheless denied the exemption on the ground that the documentation did not satisfy all the formal requirements laid down in Article 45a(1)(b) of the VAT Implementing Regulation, in particular because certain documents were regarded as formally defective as they lacked elements such as the precise date and place of arrival of the goods in the Member State of destination. Importantly, however, the authorities did not dispute that the goods had in fact been transported from Croatia to Slovenia; the exemption was refused solely because the supplier could not benefit from the presumption set out in Article 45a of the VAT Implementing Regulation. The case thus illustrates, in a particularly clear setting, the limits of formalism in the evidentiary administration of intra-Community exemptions, and the risk that a presumption designed as a facilitation tool may be misconstrued as a condition of entitlement.

In those circumstances, the referring court asked whether Article 138(1) of the VAT Directive, read in conjunction with Article 45a of the VAT Implementing Regulation, must be interpreted as meaning that the exemption must be refused when the supplier fails to meet the evidentiary requirements for the presumption, or whether a Member State's tax authorities are nevertheless required to examine all the evidence produced in order to determine whether the substantive condition relating to intra-Community transport is satisfied.

The Court began by recalling that Article 138(1) of the VAT Directive lays down the substantive conditions for the exemption, including the requirement that the goods be dispatched or transported to another Member State. In that regard, paragraph 14 of the judgment, without taking an explicit position on the legal nature of each individual requirement, appears to proceed on the basis of the literal wording of Article 138(1) of the VAT Directive, referring to the supply of goods to a taxable person, or to a non-taxable legal person acting as such, to the identification of the purchaser for VAT purposes in a Member State other than that in which the dispatch or transport of the goods begins and to the communication of its VAT identification number to the supplier.

The Court, however, does not address the question of whether all those elements are to be regarded as substantive rather than merely formal conditions, an issue which did not form part of the questions referred for a preliminary ruling. The classification of some of those requirements – in particular the communication of the VAT identification number – as substantive rather than merely formal remains, therefore, debated in both the Court’s earlier (i.e., pre- "quick fixes") case law on intra-Community supplies and the academic literature (see, ex multis, C. Heber, Substance over form in European VAT Law, in G. Kofler et al. (eds.), CJEU-Recent developments in Value Added Tax 2023, Linde, 2024, 59-68; F. Barth, CJEU Case Law on Exercising Rights Under EU VAT: Is There a Golden Thread in the Distinction Between Substantive and Formal Conditions?, EC Tax Review, Volume 31, Issue 6, 2022, pp. 341-344; D. Gómez Aragón & G. Echevarría Zubeldia, Three New Requirements for Zero Rating Intra-Community Supplies: Barking Up the Wrong Tree, International VAT Monitor, Volume 31, Issue 6, 2020, pp. 307-314; P. Mikula, Case Law Note: consistency of ECJ Case Law: Formal Requirements in VAT matters, Intertax, Volume 47, Issue 1, 2019, pp. 121-124; 2019; S. Nathoeni & W. de Wit, VAT Exemption of Intra-community Supplies of Goods: State of Play after VSTR, EC Tax Review, Volume 22, Issue 2, 2013, pp. 100-105).

In that doctrinal context, the central contribution of FLO VENEER (C-639/24) concerns the legal nature of Article 45a of the VAT Implementing Regulation. As clarified in paragraph 16, that provision merely lays down the circumstances in which a rebuttable presumption of intra-Community transport applies and does not provide an exhaustive list of the evidence capable of establishing the existence of an intra-Community supply. Accordingly, where the conditions for applying the presumption are not satisfied, the tax authorities remain obliged to assess all the evidence submitted by the supplier in order to determine whether the substantive requirement relating to intra-Community transport has nevertheless been met.

The Court further emphasised, in paragraph 18, that Article 45a of the VAT Implementing Regulation is intended to facilitate the application of the exemption and to enhance legal certainty by harmonising evidentiary requirements across Member States. With reference to recitals 3 to 5 of Council Implementing Regulation (EU) 2018/1912 of 4 December 2018 amending the Implementing Regulation as regards certain exemptions for intra-Community transactions (hereinafter: ‘Regulation (EU) 2018/1912’), the Court explained that the presumption was conceived essentially as a simplification of the evidentiary means available to demonstrate the fulfilment of the conditions for the exemption, in the interest of both businesses and tax authorities, without precluding the production of evidence other than that specifically listed therein. This reinforces the reading of Article 45a of the VAT Implementing Regulation as a procedural safe harbour, rather than a substantive redefinition of Article 138 of the VAT Directive.

Accordingly, the Court treated the presumption in Article 45a of the VAT Implementing Regulation as a means of proof only. Where its conditions are satisfied, the supplier benefits from a procedural advantage, as the burden to rebut it shifts to the tax authorities. Conversely, where the supplier cannot rely on the presumption, this does not imply that the goods were not transported to another Member State, nor does it automatically entail the loss of the exemption.

Although the judgment does not expressly refer to them, this approach is consistent with the interpretative guidance set out in the European Commission’s Explanatory Notes on the EU VAT changes in respect of call-off stock arrangements, chain transactions and the exemption for intra-Community supplies of goods (hereinafter: ‘the Explanatory Notes on 2020 Quick Fixes’ or ‘Explanatory Notes’), which, while not legally binding, constitute a recognised aid to interpretation for the purposes of ensuring the uniform application of EU law (see, by analogy, Opinion of AG Kokott 31 January 2013, C-155/12 RR Donnelley, ECLI:EU:C:2013:57, paragraph 48, and the case law cited therein).

First, the Explanatory Notes clarify that Article 45a of the VAT Implementing Regulation cannot be applied a contrario, in the sense that the mere failure to satisfy the presumption does not automatically entail the denial of the exemption under Article 138 of the VAT Directive. In such cases, the supplier merely loses the benefit of the presumption and must instead demonstrate, to the satisfaction of the tax authorities, that the substantive conditions for the exemption – including the intra-Community transport of the goods – are fulfilled, the evidentiary framework remaining the same as it was prior to the entry into force of Article 45a. Second, the Explanatory Notes specify that, where the presumption does not apply, for instance, because one or more of the documents relied upon by the supplier are affected by formal defects, contain incorrect information or are even false – the supplier may still establish entitlement to the exemption by other means (paragraphs 5.2 and 5.3.4 of the Explanatory Notes on 2020 Quick Fixes).

That interpretative position has also been reflected in the administrative practice of several Member States. In Italy, for instance, the tax authorities (Agenzia delle Entrate) expressly acknowledged that, where the presumption under Article 45a of the VAT Implementing Regulation does not apply, national evidentiary practice concerning proof of intra-Community transport may continue to be applied, subject to a case-by-case assessment by the tax authorities (see, inter alia, Agenzia delle Entrate, Circular No 12 of 12 May 2020, paragraph 3 and Tax Ruling No 305 of 3 September 2020).

The Court then grounds its reasoning in its settled case law on fiscal neutrality, recalling that the exemption must be granted where the substantive conditions are satisfied, even if certain formal requirements are not met. Failure to meet formal requirements may justify refusal of the exemption only where the taxable person has participated in VAT fraud or where non-compliance prevents the production of conclusive evidence that the substantive conditions have been fulfilled. In circumstances such as those underlying the reference – where there is no indication of fraud and the actual movement of the goods is not contested – denial of the exemption solely on the basis of documentary formal defects would effectively make the exemption contingent on compliance with formal requirements alone, contrary to the VAT Directive and the Court’s case law (including, inter alia, CJ 9 February 2017, C-21/16 Euro Tyre, ECLI:EU:C:2017:106, paragraphs 23, 32, 35 and 36; CJ 6 September 2012, C-273/11 Mecsek-Gabona, ECLI:EU:C:2012:547, paragraphs 60 and 61; CJ 27 September 2007, C-146/05 Albert Collée, ECLI:EU:C:2007:549, paragraphs 29 to 32; CJ 27 September 2007, C-409/04 Teleos, ECLI:EU:C:2026:45, paragraphs 39 and 40).

Although not expressly referred to, Article 131 of the VAT Directive provides the underlying framework to the Court’s reasoning. That provision allows Member States to lay down conditions for the application of exemptions, provided that such conditions ensure correct and straightforward application and prevent fraud, avoidance, and abuse. At the same time, it limits national procedural autonomy by requiring compliance with general principles of EU law, including, in particular, legal certainty, proportionality and fiscal neutrality (see, ex multis, CJ 9 February 2017, C-21/16 Euro Tyre, ECLI:EU:C:2017:106, paragraphs 33 and 34;CJ 6 September 2012, C-273/11 Mecsek-Gabona, ECLI:EU:C:2012:547, paragraph 36; CJ 7 December 2010, C-285/09 R, ECLI:EU:C:2010:742, paragraphs 43 and 45; CJ 18 November 2010, C-84/09 X, ECLI:EU:C:2010:693, paragraph 35; CJ 27 September 2007, C-146/05 Albert Collée, ECLI:EU:C:2007:549, paragraph 24; CJ 27 September 2007, C-184/05 Twoh International, ECLI:EU:C:2007:550, paragraph 25). In this sense, FLO VENEER (C-639/24) serves as a reminder that Article 131 of the VAT Directive does not authorise Member States to reintroduce, through procedural rigidity, obstacles to cross-border trade that the internal market seeks to remove.

The judgment therefore concludes that Article 138(1) of the VAT Directive, read in conjunction with Article 45a of the VAT Implementing Regulation, must be interpreted as meaning that, where the supplier cannot rely on the presumption provided for in Article 45a, the tax authorities are nevertheless required to assess all the evidence produced by the taxable person – on whom the burden of proof rests, in line with settled case law – (see, ex multis, CJ 20 June 2018, C-108/17 Enteco Baltic, ECLI:EU:C:2018:473, paragraph 103; CJ 16 December 2010, C-430/09 Euro Tyre Holding, ECLI:EU:C:2010:786, paragraph 29 and 38; CJ 7 December 2010, C-285/09 R, paragraph 46; CJ 27 September 2007, C-184/05 Twoh International, ECLI:EU:C:2007:550, paragraph 26) – and to determine, on the basis of that evidence, whether the goods had in fact been dispatched or transported to another Member State.

Despite its clarifying effect, the judgment leaves certain questions unanswered. In particular, it does not define the minimum evidentiary threshold for cases where the presumption does not apply, nor does it indicate how conflicting or partially inconsistent evidence should be weighed. These uncertainties appear inherent in any system based on the free assessment of evidence and are likely to persist unless addressed through further case law or coordinated administrative guidance at the EU level.

In conclusion, FLO VENEER (C-639/24) confirms that Article 45a of the VAT Implementing Regulation is a mechanism of evidentiary facilitation, not a condition of entitlement. By reaffirming the primacy of substantive conditions over formal requirements, the Court safeguards fiscal neutrality and prevents the VAT exemption for intra-Community supplies from being undermined by excessive formalism. For practitioners, the judgment underscores the importance of robust documentation, while offering reassurance that minor formal defects are not, in themselves, decisive.

Pietro Bricchetto