The Ministry of Finance introduced a trade tax and risked a lot

The Ministry of Finance introduced a trade tax and risked a lot


From January 2021, a retail sales tax is applicable in Poland. The Ministry of Finance did not want to wait with collection thereof until the judgment of the Court of Justice of the EU. If the new tax proves to be in conflict with EU law, companies will be able to apply for a refund of the amounts paid with interest. There will also be a possibility to claim compensation for damage suffered.

COMMENTARY by Angelika Dahms, lawyer at GWW 

Our expert points out that the CJEU judgment is to resolve the dispute between Poland and the European Commission in the field of assessing compliance of the new levy with the common market. Commission's doubts related mainly to the granting of a non-acceptable advantage to "under-taxed" small companies, which, in the Commission's opinion, constitutes State aid. The EU Court, declaring invalidity of the Commission's decision, specified in the justification that the granting of a selective advantage, and thus the granting of state aid to companies with lower revenues, did not take place.

However, according to the advocate general of the CJEU, Juliane Kokott, the retail sales tax introduced in Poland does not infringe EU law in the field of state aid. The advocate general suggested that the Court should dismiss the Commission's appeals and uphold the judgments of the EU Court.

- When analyzing the opinion of the Advocate General, we may assume that the CJEU will agree with the opinion issued, emphasizes Angelika Dahms. In her opinion, Poland has not decided to postpone the application of the Act on Retail Sales Tax, probably hoping for the CJEU judgment before the end of 2020. The CJEU's calendar of hearings does not, however, provide for a judgment in this case, at least until 21 January 2021. Thus, there is no certainty that the judgment will be issued before 25 February, which is the tax payment date.

All we can do is to assume that a regulation of the Minister of Finance on abandoning the collection of the new nex be issued in this case. This would allow avoiding a conflict, if any, of Polish regulations with EU law - points out the expert.

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