Reminder of the rules on intra-Community deliveries
Intra-Community deliveries are defined as deliveries of goods dispatched or transported by the supplier, by the purchaser or on their behalf, from one European Union (EU) Member State to another EU Member State, to a taxable person or a non-taxable legal person acting as such.
Except in special cases, intra-Community movements of goods without transfer of ownership (stock transfers) carried out by a taxable person for the purposes of their business are treated as intra-Community deliveries in the country of departure of the transport for VAT purposes.
In accordance with Article 138 of the VAT Directive, intra-Community supplies are exempt from French VAT if the following cumulative conditions are met :
the purchaser is a taxable person who has a valid intra-Community VAT number in the VIES1 database in an EU Member State other than the Member State of departure of the transport;
the supplier is able to provide proof of intra-Community transport in accordance with the rules laid down by the regulations (see below);
the seller has validly reported the transaction in their VAT summary statement (“EU Sales List”) filed in the Member State of departure of the transport
If one of the above conditions is not met, the tax authorities in the country of departure may question the VAT exemption on the sale and impose penalties and interest on the seller.
Focus on the second condition relating to proof of transport
Article 45a of Regulation 282/2011 provides for two rebuttable presumptions (which the administration may refute) to prove the intra-Community transport of goods.
The first presumption concerns transport carried out by or on behalf of the seller, i.e. when the seller bears the risk of accidental loss of the goods during intra-Community transport (Incoterms DAP, CPT, CIP).
The second presumption concerns transport carried out by or on behalf of the purchaser, i.e. when the purchaser bears the risk of accidental loss of the goods during transport (Incoterms EXW, FCA).
Paragraph 3 of the aforementioned article states that “For the purposes of paragraph 1, the following shall be accepted as proof of shipment or transport” :
| « Liste A » : Article 45 bis paragraphe 3.a) | « Liste B » : Article 45 bis paragraphe 3.b) |
|---|---|
|
|
| Lorsque c’est le fournisseur qui organise le transport il doit être en mesure d’apporter : | Lorsque c’est l’acquéreur qui organise le transport, le fournisseur doit être en mesure d’apporter : |
|---|---|
|
|
*Conformément au point 1. b) i) de l’article 45 bis du règlement d’exécution n°282/2011, l’attestation doit être écrite de l’acquéreur et attester que les biens ont été expédiés ou transportés par lui, ou par un tiers pour son compte. Elle doit mentionner :
- la date d’émission ;
- le nom et l’adresse de l’acquéreur ;
- la quantité et la nature des biens ;
- la date et le lieu d’arrivée des biens ;
- et l’identification de la personne qui accepte les biens au nom de l’acquéreur.
If the seller is unable to provide these two or three pieces of evidence, they will not benefit from the presumption, but they still have the option of proving transport by any means.
Proof of intra-Community transport by any means
It is important to note that Article 45a only establishes a rebuttable presumption of VAT exemption on intra-Community supplies. If the supplier is unable to provide such evidence, it still has the option of proving intra-Community transport by any means.
This was reiterated by the CJEU in a recent judgment of November 13, 2025 (C-639/24, FLO VENEER).
Case C-639/24 (FLO VENEER) concerns the interpretation of Article 138 of the VAT Directive and Article 45a of Implementing Regulation 282/2011, relating to the exemption of intra-Community supplies and the evidence requirements for establishing the transport of goods to another Member State. The Croatian court has referred a key question to the CJEU :
Can the exemption be refused solely on the grounds that the supplier does not have the documents referred to in Article 45a, or must the tax authorities nevertheless examine all the available facts to determine whether the material conditions for exemption—in particular, the reality of intra-Community transport—are met ?
This ruling is consistent with previous case law (Euro Tyre, C-21/16, EU:C:2017:106, paragraphs 36, 38, 39, and 42), which aims to clearly distinguish between substantive and formal conditions.
It highlights the practical difficulties encountered by businesses when certain transport documents are incomplete or do not strictly comply with the requirements of the regulation, even though the intra-Community transaction has actually taken place.
In this judgment, the CJEU points out that there are only two cases in which failure to comply with a formal requirement may result in the loss of the right to VAT exemption :
On the one hand, where the taxable person has intentionally participated in tax fraud that has jeopardized the functioning of the common VAT system;
On the other hand, when the violation of a formal requirement has prevented the provision of conclusive evidence that the substantive requirements have been met.
Thus, the tax authorities of the Member States must assess any evidence produced by the seller to determine intra-Community transport (and therefore VAT exemption), except in the cases of presumption provided for in Article 45a(1) of Implementing Regulation No. 282/2011.
It should also be noted that judgment C-146/05 Collée, handed down by the CJEU on September 27, 2007, concerns an intra-Community supply of goods for which VAT exemption was refused due to a delay in producing proof of transport. The Court ruled that the automatic refusal of exemption on the basis of a simple delay in providing documentation is contrary to EU law, since the transaction did in fact take place and no real risk of loss of tax revenue has been demonstrated. The judgment confirms that the substantive conditions for exemption—the reality of transport to another Member State—take precedence over formalities, while leaving open the possibility of refusing exemption where the lack of evidence actually compromises the correct collection of VAT.