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On 22 January 2026, the Hague Court of Appeal (ECLI:NL:GHDHA:2026:139) issued a decision relevant to businesses supplying goods under suspension of excise duty. In this case, the Dutch Tax Authorities refused to apply the VAT zero rate because a company, which supplied its goods exclusively within a tax warehouse in the Netherlands but was in fact managed from outside the Netherlands, had not appointed a fiscal representative. The resulting additional VAT assessments were annulled by the Court.
The Court held that although the company is undoubtedly a taxable person, the VAT place of establishment is determined by the location where the central management functions are actually carried out. Operational activities in the Netherlands—such as storage, stock inspections and customer contact—do not qualify as central management functions. Because it was not demonstrated that management decisions were taken in the Netherlands, the company was correctly regarded as a foreign taxable person. The Court also concluded that there was no fixed establishment in the Netherlands: the company did not have personnel or resources at its disposal as if they were its own, and the activities carried out in the Netherlands were purely operational. At the same time, the judgment confirms that for a foreign company to qualify as a Dutch taxable person for VAT purposes, it is essential that the actual management is exercised in the Netherlands; without genuine management activities in the Netherlands, neither establishment nor fixed establishment exists.
The Court then assessed whether the absence of a fiscal representative could block the application of the zero rate. It held that the obligation for foreign taxable persons to appoint a fiscal representative results in an unjustified unequal treatment compared to Dutch taxable persons. The requirement imposes costs and administrative burdens that domestic businesses do not face. Because a mutual assistance instrument exists with the country where the actual management is located, the Court found no justification for imposing heavier obligations or additional requirements on foreign taxable persons. Notably, the Court relied on non discrimination case law from the field of direct taxation and extended that reasoning to VAT.
The Court further emphasised that the material conditions for the zero rate were fully met. The goods demonstrably remained under suspension of excise duty and were not released for consumption. In that context, the absence of a fiscal representative is a formal requirement that cannot prevent the application of the zero rate when the material conditions have been convincingly demonstrated.
This judgment may have implications for businesses supplying goods under suspension of excise duty that are treated by the Dutch Tax Authorities as foreign taxable persons. The Court makes clear that the zero rate cannot be refused when the material conditions are satisfied and a mutual assistance instrument is in place. At the same time, the judgment underscores that the VAT place of establishment is determined solely by actual management and not by legal form, Chamber of Commerce registration or operational presence in the Netherlands. It remains uncertain whether the Supreme Court will uphold this reasoning.
The judgment touches on broader principles of equal treatment and mutual assistance within the EU and, if confirmed, could have effects beyond the context of supplies under suspension of excise duty. It will become clear in the coming period whether an appeal in cassation will be lodged and how the Supreme Court will address these issues.