VAT does not apply to everything – court sets limits on taxation of compensation for electricity production restrictions
On 26 June 2025, the Provincial Administrative Court in Poznań issued an important judgment, ref. no. I SA/Po 188/25, in which we represented our client from the energy sector, a producer of electricity from renewable energy sources (RES). The ruling concerns the revocation of an individual interpretation issued by the Director of the National Tax Information Office. It thus determines that compensation for the implementation of an order to restrict or suspend electricity production does not constitute a service provided for consideration within the meaning of the VAT Act.
Basis for compensation
The basis for the claim for compensation was the provisions of the Energy Law. According to these provisions, the transmission system operator (TSO) or distribution system operator (DSO) may, in certain situations, issue an order to:
- disconnect wind or solar power generation units from the grid,
- restrict the power generated by such units,
- disconnect electricity storage facilities,
- change the power drawn or fed into storage facilities.
The purpose of such measures is to balance energy supply and demand and ensure the safe operation of the electricity grid.
Such an instruction – in accordance with the regulations – entitles the operator to compensation. If the system operator orders the redispatching of generation units (i.e. a change in their operation) outside the market rules, it must pay financial compensation. This compensation is paid to the operator of the generation, energy storage or demand response unit concerned by the instruction.
Exception: compensation is not payable to producers who have signed a connection agreement without a guarantee of reliable energy supply.
Amount of compensation
Under the regulations, financial compensation must be at least equal to the higher of the following amounts or a combination thereof, if the application of only the higher amount would result in unjustifiably low or unjustifiably high compensation:
- a) the amount of additional operating costs incurred as a result of redispatching, such as additional fuel costs in the case of redispatching leading to an increase in capacity or the costs of providing backup heat in the case of redispatching leading to a reduction in the capacity of energy generation units using high-efficiency cogeneration;
- b) the net revenues from the sale of electricity on the day-ahead market that the energy generation, energy storage or demand response unit would have generated if the redispatching order had not been issued; where energy generation, energy storage or demand response units have been granted financial support on the basis of the amount of electricity generated or consumed, the financial support that would have been received if the redispatching order had not been issued shall be considered part of the net revenues.
Argumentation of the GWW team
The court agreed with our argument that the actions resulting from the orders are not contractual in nature, but are a unilateral decision of the TSO, to which the company must comply. The issuance of orders is crucial for maintaining the operational safety of the national power system and balancing electricity supply with demand. The lack of such balance disrupts the operation of the national and European power system, resulting in a risk to its operational safety and the possibility of a local, national or regional system failure. Importantly, the amount of compensation is not known at the time of non-market reallocation. What is more, in order to receive it, the company must take certain steps, i.e. submit an application, grant powers of attorney, and even then, receiving compensation is not certain.
The court clearly stated that:
- ‘Not every payment of money constitutes consideration within the meaning of VAT’ – this is a fundamental thesis that can also be invoked outside the energy sector, in cases concerning state intervention, subsidies, redistribution and other quasi-public mechanisms;
- No supply – no VAT;
- In its justification of the ruling, the Provincial Administrative Court broke down the tax authorities’ argument into three key pillars:
- no contractual relationship between the parties – the instruction to reallocate is unilateral and results from legal provisions, not from a civil law contract,
- no specific beneficiary of the service – stopping energy production does not directly benefit a specific entity, but serves the public interest (energy grid stability),
- the nature of the compensation as damages rather than remuneration – payment is not guaranteed, depends on the fulfilment of a number of formal conditions and is not equivalent in nature.
Effects of the judgment and benefits for businesses
In summary, the court – contrary to the Director of the National Tax Information Service – found that in the case in question, the conditions for recognising the restriction or suspension of energy production as a service subject to VAT were not met.
It is worth noting that this is an unprecedented ruling that may significantly affect the taxation of similar compensation in the energy sector, particularly in the context of the growing importance of renewable sources and the role of the state in managing energy security.The content of the ruling may influence the interpretation of tax regulations in situations where the service is mandatory, results from public law decisions and does not have a clearly defined beneficiary.
The ruling in our client’s case is particularly significant for renewable energy producers, especially photovoltaics, where production restrictions may be more frequent during peak supply periods. The practice of compensation payments by PSE S.A. is becoming increasingly common in such cases.
But its potential scope does not end there. It can be interpreted more broadly as an expression of a tendency towards:
- a narrow interpretation of ‘provision of services’ for VAT purposes,
- protection of entities performing obligations under public law,
- distinction between remuneration and public law compensation.
- an innovative approach to the assessment of ‘provision’ for VAT purposes,
- a clear separation of market mechanisms from systemic and public activities,
- an attempt to protect entrepreneurs implementing the operator’s decisions in the public interest.
The interpretation of the Director of the National Tax Information Service, based on Article 8(1)(2) of the VAT Act, had previously been the typical approach of the tax authority, assuming that any omission in exchange for money constitutes a supply of services. The Provincial Administrative Court clearly showed the limits of this approach. It relied on the case law of the CJEU (cases C-215/94 Mohr and C-384/95 Landboden), emphasising the absence of a consumer and an equivalent as conditions precluding VAT taxation. The judgment in question sets an important benchmark in the discussion on the limits of taxation of services in the context of regulated markets and state intervention. It is not only a judgment on VAT, but also on the relationship between the state, the market and the entrepreneur.
The WSA judgment may become a precedent and an argumentative tool in subsequent proceedings concerning not only the energy sector, but also other areas subject to state regulation and intervention. It shows that VAT is not a tax on everything that involves the movement of money and that the limits of what can be considered a service must be determined with respect for the actual nature of the service provided.
