Provisional text

1 August 2025 (*)

( Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Exemptions on exportation – Article 146(1)(b) – Supply of goods dispatched or transported to a destination outside the European Union – Transport of goods outside the European Union following an agreement between the person acquiring the goods and the supplier providing for their supply in another Member State – Goods which have actually left the territory of the European Union – Proof – Refusal of the exemption on exportation – Principles of fiscal neutrality and proportionality )

In Case C‑602/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw, Poland), made by decision of 12 July 2024, received at the Court on 17 September 2024, in the proceedings

THE COURT (Ninth Chamber),

composed of N. Jääskinen, President of the Chamber, A. Arabadjiev (Rapporteur) and M. Condinanzi, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–the Polish Government, by B. Majczyna, acting as Agent,

–the European Commission, by P. Carlin and M. Rynkowski, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 146(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT Directive’).

2The request has been made in proceedings between W. sp. z o.o. (‘company W’) and the Dyrektor Izby Administracji Skarbowej w W. (Director of the Tax Administration Chamber in W., Poland) concerning a refusal to exempt from value added tax (VAT) exports of goods outside the territory of the European Union carried out in 2017 and 2018.

Legal context

European Union law

3Article 14(1) of the VAT Directive provides as follows:

‘“Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner.’

4Title IX of that directive concerns exemptions. Chapter 1 of Title IX consists solely of Article 131 of that directive, which provides:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

5Chapter 6 of Title IX is entitled ‘Exemptions on exportation’ and contains Articles 146 and 147 of that directive. Article 146(1)(a) and (b) of the directive provides:

‘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’.

Polish law

6The ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. of 2017, item 1221), in the version applicable to the case in the main proceedings (‘the Law on VAT’), provides in 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.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

7Company W declared, in its VAT returns for 2017 and 2018, supplies of apples for which the recipient was A.E. LP, a company established in the United Kingdom and registered for VAT purposes in Latvia (‘A.E.’ or ‘the person acquiring the goods’). Those supplies were declared as intra-Community supplies of goods, which are subject to a rate of 0%.

8According to the waybills in company W’s possession and submitted during the tax proceedings, the goods were to be transported and delivered from Poland to destinations in Lithuania by carriers established in Belarus, Russia and Poland. A.E. was to be responsible for organising transport.

9The Polish tax authorities established that, as the person acquiring the apples, A.E. had exported them directly from Poland to Belarus. According to those authorities and on the basis of the information provided, inter alia, by the Latvian tax authorities, A.E. was an elusive and unreliable entity. The Latvian tax authorities confirmed that A.E. had declared an intra-Community acquisition of goods acquired from company W, as well as exports to third countries. Moreover, the Polish tax authorities do not refer to any fraud or abuse on the part of company W in the chain of supply.

10According to the Polish tax authorities, since the goods were not transferred to the territory of another Member State of the European Union, there were grounds to consider that the supplies concerned were not of an intra-Community nature. Those authorities also took the view that company W had not duly checked where the goods would be delivered and that it had merely formally confirmed their delivery to Lithuania on the basis of the signature of the driver who had carried out the transport of the goods, together with the transport company’s stamp. Those authorities therefore considered that the sale of goods from company W to A.E. constituted a domestic supply liable to VAT at the rate of 5%, and also imposed a penalty at a rate of 30%.

11Company W challenged that decision before the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw, Poland), which is the referring court, claiming that, since the Polish tax authorities had established that the goods had been exported to Belarus by an entity acting in the name and on behalf of the counterparty, it was necessary, under the Law on VAT, to reclassify the transaction as an indirect export, subject to the rate of 0%.

12The Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw) upheld that action and annulled the decision taken by the Polish tax authorities. Noting that A.E. had acquired the right to dispose of the goods as owner from company W and had exported them to Belarus, it considered that, since the substantive legal requirements of the indirect export procedure were satisfied, the principle of fiscal neutrality required the application of the VAT rate of 0%, despite that taxable person’s non-compliance with the formal requirements relating to exportation.

13The Polish tax authorities brought an appeal on a point of law against that judgment before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), which set aside that judgment. That court held that the complaints alleging defects in the statement of reasons vitiating the same judgment were well founded and referred the case before it back to the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw) for reconsideration.

14In its judgment, however, the Naczelny Sąd Administracyjny (Supreme Administrative Court) issued a legal opinion concerning, in the light of the circumstances of that case, the possible reclassification of the intra-Community supply as an indirect export.

15The Naczelny Sąd Administracyjny (Supreme Administrative Court) pointed out that the mere decision taken by the person acquiring the goods to export them outside the territory of the European Union on the basis of a customs declaration made in its name and on its behalf – a decision which it had taken following the conclusion of commercial agreements with the supplier of those goods, that is, with company W, and independently of it – was not such as to enable that supplier to deduce or to anticipate a reclassification of the domestic supply as an export transaction, even an indirect one, given that at the time when the supply was carried out, the parties to the transaction had neither the intention nor the wish for it to be a ‘supply for export’.

16In those circumstances the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Should Article 146(1)(b) of [the VAT Directive] 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 [the VAT Directive] 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 [the VAT Directive] 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 [waybills] held by the taxable person (supplier) is inconsistent with these findings?’

Consideration of the questions referred

17By its three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 146(1)(b) of the VAT Directive must be interpreted as meaning that the exemption provided for in that provision covers a supply of goods initially declared by the supplier as an intra-Community supply which, without the supplier’s knowledge, was made outside the territory of the European Union by the person acquiring the goods, where the export at issue has been established by the tax authorities on the basis of the customs documents.

18It must be recalled, in the first place, that in accordance with Article 146(1)(a) and (b) of the VAT Directive, the Member States are to exempt the supply of goods dispatched or transported to a destination outside the European Union by or on behalf of the vendor or by or on behalf of a customer. That provision should be read in conjunction with Article 14(1) of the directive, in accordance with which ‘supply of goods’ is to mean the transfer of the right to dispose of tangible property as owner (see, to that effect, judgments of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 19, and of 17 December 2020, BAKATI PLUS, C‑656/19, EU:C:2020:1045, paragraph 55).

19The exemption of supplies of goods dispatched or transported outside the European Union is intended to ensure that the supplies of goods concerned are taxed at the place of destination of those goods, namely the place where the exported products will be consumed (see, to that effect, judgment of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 19 and the case-law cited).

20As the Court has already observed on several occasions, it follows from the provisions referred to in paragraph 18 above, and particularly from the word ‘dispatched’ in Article 146(1)(a) and (b) of the VAT Directive, that 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, the supplier establishes that those goods have been dispatched or transported outside the European Union, and, as a result of that dispatch or that transport, the goods have physically left the territory of the European Union (see, to that effect, judgments of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 21, and of 17 December 2020, BAKATI PLUS, C‑656/19, EU:C:2020:1045, paragraph 56).

21The Court has also already held that the concept of ‘supply of goods’ is objective in nature and that it applies without regard to the purpose or results of the transactions concerned and without its being necessary for the tax authorities to carry out inquiries to determine the intention of the taxable person in question or for them to take account of the intention of an operator other than that taxable person involved in the same chain of supply (judgment of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 22).

22Accordingly, transactions such as those at issue in the main proceedings constitute supplies of goods within the meaning of Article 146(1)(a) and (b) of the VAT Directive if they meet the objective criteria upon which that concept is based, set out in paragraph 20 above.

23It is apparent from the documents before the Court that the first criterion for establishing the existence of an export of goods is satisfied in the present case, in so far as it is common ground that the supplier transferred to the person acquiring the goods the right to dispose of the apples at issue in the main proceedings as owner.

24As regards the second criterion, according to which the supplier is to establish that those goods have been dispatched or transported outside the European Union, it is apparent from the request for a preliminary ruling that the supplier at issue in the main proceedings submitted, during the tax proceedings, documents showing that the goods were to be transported and delivered, from the place of loading in Poland, to destinations in Lithuania. However, the Polish tax authorities established that the supply of the apples had been made not in that Member State but outside the territory of the European Union.

25The Polish tax authorities deduce therefrom that the intra-Community supply subject to a VAT rate of 0%, initially envisaged, had not in fact been made. Accordingly, those authorities took the view that the supplier had not duly checked where the goods, which it had sold, would be delivered and that it had merely formally confirmed their delivery in Lithuania on the basis of the signature of the driver who carried out the transport of the goods, together with the transport company’s stamp.

26However, it must be held that such circumstances are not relevant for the purposes of classifying the transaction at issue in the main proceedings as an export transaction within the meaning of Article 146(1)(a) and (b) of the VAT Directive.

27First, as has been pointed out in paragraph 23 of the present judgment, the right to dispose of the goods as owner had previously been transferred by the supplier to the person acquiring the goods, the latter then being supposed to deliver those goods in accordance with the terms of the agreement between them. In those circumstances, the supplier cannot be criticised for confirming the delivery on the basis of the signature of the driver who transported the goods concerned, together with the transport company’s stamp appearing on the waybills.

28Second, as has been recalled in paragraph 21 of the present judgment, the concept of ‘supply of goods’ is objective in nature and applies without regard to the purpose or results of the transactions concerned. Accordingly, the objective conditions for the application of the exemption provided for in Article 146(1)(a) and (b) of the VAT Directive must be met. The fact that the parties initially agreed on an intra-Community supply which ultimately did not take place and that the supply outside the territory of the European Union was made without the supplier’s knowledge constitute subjective factors which are therefore, in principle, irrelevant.

29In the present case, it is common ground that the supply of the apples at issue in the main proceedings outside the territory of the European Union was established. The fact that the proof of that supply was obtained by the Polish tax authorities and not by the supplier is not relevant for the purposes of classifying the transaction at issue in the main proceedings as an export transaction, for the purposes of Article 146(1)(a) and (b) of the VAT Directive.

30In such circumstances, the second criterion referred to in paragraph 20 of the present judgment must be regarded as having been satisfied.

31As regards the third criterion, which requires that, following a dispatch or transport, the goods must have physically left the territory of the European Union, it is common ground that the apples at issue in the main proceedings were transported outside the European Union by or on behalf of the person acquiring the goods.

32It should be noted that, since it is also common ground that there was no consumption of those apples in the territory of the European Union, it cannot be held that the supplier made a supply in the national territory.

33The exemption provided for in Article 146(1) of the VAT Directive is intended to ensure that the supplies of goods concerned are taxed at the place of destination of those goods, namely the place where the exported products will be consumed (judgment of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 23 and the case-law cited).

34Accordingly, when the substantive requirements have been satisfied, the principle of fiscal neutrality requires the VAT exemption to be granted even if certain formal requirements have been omitted by the taxable persons (judgment of 17 December 2020, BAKATI PLUS, C‑656/19, EU:C:2020:1045, paragraph 72 and the case-law cited).

35It follows from the foregoing that the classification of a transaction as a ‘supply of goods’ within the meaning of Article 146(1)(a) and (b) of the VAT Directive cannot be refused on the ground that the dispatch or transport outside the European Union was carried out without the supplier’s knowledge and was established by the tax authorities and not by the supplier itself.

36The Polish Government contends that the condition, laid down in the Law on VAT, that the supplier who is a taxable person must receive a document confirming the export of the goods outside the European Union was dictated, inter alia, by the need to prevent tax evasion. Since export transactions benefit from preferential VAT arrangements, that is to say, they are exempt from VAT while retaining the right to deduct input tax and therefore benefit from a VAT rate of 0% under that law, there is a significant risk that operators will seek to exploit that advantage for transactions in which the goods have not in fact been exported outside the European Union.

37Admittedly, it is for the Member States to lay down, in accordance with Article 131 of the VAT Directive, the conditions under which they will exempt transactions on exportation for the purposes of ensuring the correct and straightforward application of the exemptions provided for in that directive and of preventing any possible evasion, avoidance or abuse. When they exercise their powers, Member States must nonetheless respect the general principles of law which form part of the legal order of the European Union, including, in particular, the principle of proportionality (judgment of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 26).

38As regards that principle, it must be recalled that a national measure goes beyond what is necessary to ensure the correct collection of the tax if, in essence, it makes the right of exemption from VAT subject to compliance with formal obligations, without any account being taken of the substantive requirements and, in particular, without any consideration being given as to whether those requirements have been satisfied. Transactions must be taxed by taking into account their objective characteristics (judgment of 17 December 2020, BAKATI PLUS, C‑656/19, EU:C:2020:1045, paragraph 71 and the case-law cited).

39As the European Commission submits, although the Member States impose formal requirements pursuant to Article 131 of the VAT Directive, those conditions must not, however, alter the scope of the exemptions provided for by that directive. It would not be proportionate to refuse to apply the exemption to an export on the sole ground that the taxable person does not have the correct export documents if, as in the present case, the tax authorities are certain that the goods have been exported. Such a refusal would go beyond what is necessary to ensure the correct collection of the tax, since the VAT exemption would be subject to excessive formal requirements, without any examination as to whether the substantive exemption criteria are actually satisfied.

40According 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 (judgment of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 29 and the case-law cited).

41First, a breach of a formal requirement may lead to the refusal of an exemption from VAT if the effect of the breach is to prevent the production of conclusive evidence that the substantive requirements have been satisfied (judgment of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 30 and the case-law cited).

42However, that is clearly not the case in the main proceedings, in which, as has been pointed out in paragraphs 23 to 31 of the present judgment, all the substantive conditions for the exemption provided for in Article 146(1)(b) of the VAT Directive are satisfied.

43Second, the principle of fiscal neutrality cannot be relied on 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. According to the Court’s case-law, it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of him or her to satisfy him or herself that the transaction which he or she is carrying out does not result in his or her participation in tax evasion. If it were concluded that the taxable person concerned knew or ought to have known that the transaction he or she carried out was part of a fraud committed by the person acquiring the goods and that he or she has not taken every step which could reasonably be asked of him or her to prevent that fraud from being committed, he or she would have to be refused the exemption (judgment of 17 October 2019, Unitel, C‑653/18, EU:C:2019:876, paragraph 33 and the case-law cited).

44However, in the present case, the referring court stated that the tax authorities had not referred to any fraud or abuse on the part of the supplier in the supply chain. In addition, there is no evidence of fraudulent conduct from the file before the Court.

45Moreover, the Court has already held that, in circumstances where the conditions for the export exemption laid down in Article 146(1)(b) of the VAT Directive, in particular, the requirement that the goods concerned leave the customs territory of the European Union, are satisfied, no liability to pay VAT arises in respect of such a supply and, in those circumstances, there no longer exists, in principle, any risk of tax evasion or loss of tax which could justify the transaction concerned being taxed (judgment of 17 December 2020, BAKATI PLUS, C‑656/19, EU:C:2020:1045, paragraph 82 and the case-law cited).

46In the light of the foregoing, the answer to the questions referred is that Article 146(1)(b) of the VAT Directive must be interpreted as meaning that the exemption provided for in that provision covers a supply of goods initially declared by the supplier as an intra-Community supply which, without the supplier’s knowledge, was made outside the territory of the European Union by the person acquiring the goods, where the export at issue has been established by the tax authorities on the basis of the customs documents.

Costs

47Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

On those grounds, the Court (Ninth Chamber) hereby rules:

Article 146(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that the exemption provided for in that provision covers a supply of goods initially declared by the supplier as an intra-Community supply which, without the supplier’s knowledge, was made outside the territory of the European Union by the person acquiring the goods, where the export at issue has been established by the tax authorities on the basis of the customs documents.

[Signatures]

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Language of the case: Polish.