Judgment;Summary — ECLI:EU:C:2025:335
Date: 2025-05-08
Language of the case: Polish
Court formation: Eighth Chamber
Subject matter: Taxation;Free movement of goods;Value added tax;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-405/24 – 1 
Case C-405/24 
Request for a preliminary ruling 
Date lodged: 
11 June 2024 
Referring court: 
Naczelny Sąd Administracyjny (Poland) 
Date of the decision to refer: 
26 March 2024 
Appellant: 
L. s.c. 
Respondent: 
Dyrektor Krajowej Informacji Skarbowej 
  
ORDER 
26 March 2024 
The Naczelny Sąd Administracyjny (Supreme Administrative Court) […] 
[…] 
following the hearing on 12 March 2024 
in the Izba Finansowa (Finance Chamber) 
of the appeal on a point of law brought by L. s.c. […] 
against the judgment of the Wojewódzki Sąd Administracyjny w Warszawie 
(Regional Administrative Court in Warsaw, Poland) 
of 12 December 2019 […] 
in the action brought by L. s.c. […] 
EN 
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against the advance tax ruling issued by the Dyrektor Krajowej Informacji 
Skarbowej (Director of the National Tax Information Service) 
of 22 February 2019 […]  
concerning value added tax 
decides: 
1. to refer the following question to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 of the Treaty on the 
Functioning of the European Union […]:Must the provisions of Article 143 
(b) of Council Directive 2006/112/EC of 28 November 2006 on the common 
system of value added tax […] and Article 1 of Directive 2006/79 of 5 October 
2006 on the exemption from taxes of imports of small consignments of goods 
of a non-commercial character from third countries […] in the context of 
recital (3) of Directive 2006/79 and Article 25 of Council Regulation (EC) 
No 1186/2009 of 16 November 2009 setting up a Community system of reliefs 
from customs duty (OJ 2009 L 324 of 10 December 2009, ‘Regulation 
1186/2009’) be interpreted as being contrary to a regulation such as 
Article 52(1) of the ustawa z dnia 11 marca 2004 r. o podatku od towarów i 
usług […] (Law of 11 March 2004 on Value Added Tax; ‘the Law on VAT’), 
according to which the importation of goods placed in a consignment sent 
from the territory of a third country by an individual and intended for an 
individual residing in the territory of a Member State of the European Union 
other than the territory of the country where the importation takes place is 
not exempt from VAT? 
2. […] 
L. 
 
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GROUNDS 
I. Legal framework. 
II. European Union law 
Article 143(b) of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax […] (‘Directive 2006/112’): 
Member States shall exempt the following transactions: the final importation of 
goods governed by Council Directives 69/169/EEC, 83/181/EEC and 2006/79/EC. 
Article 1 of Council Directive 2006/79 of 5 October 2006 on the exemption from 
taxes of imports of small consignments of goods of a non-commercial character 
from third countries […] ‘Directive 2006/79’): 
1. Goods in small consignments of a non-commercial character sent from a third 
country by private persons to other private persons in a Member State shall be 
exempt on importation from turnover tax and excise duty. 
2. For the purposes of paragraph 1, ‘small consignments of a non-commercial 
character’ shall mean consignments which: 
(a) are of an occasional nature; 
(b) contain only goods intended for the personal or family use of the consignees, 
the nature and quantity of which do not indicate that they are being imported for 
any commercial purpose; 
(c) contain goods with a total value not exceeding EUR 45; 
(d) are sent by the sender to the consignee without payment of any kind. 
Recital (3) of Directive 2006/79: 
To that end the limits within which such exemption is to be applied should, for 
practical reasons, be as far as possible the same as those laid down for the 
Community arrangements for exemption from customs duties in Council 
Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system 
of reliefs from customs duty. 
Article 25 of Council Regulation (EC) No 1186/2009 of 16 November 2009 
setting up a Community system of reliefs from customs duty […] (‘Regulation 
No 1186/2009’): 
1. Subject to Articles 26 and 27, goods contained in consignments sent from a 
third country by a private individual to another private individual living in the 
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customs territory of the Community shall be admitted free of import duties, 
provided that such importations are not of a commercial nature. 
The relief provided for under this paragraph shall not apply to goods in 
consignments sent from the island of Heligoland. 
2. For the purposes of paragraph 1, imported consignments are ‘not of a 
commercial nature’ if they: 
(a) are of an occasional nature; 
(b) contain goods exclusively for the personal use of the consignee or his 
family, which do not, by their nature or quantity, reflect any commercial intent; 
(c) are sent to the consignee by the consignor free of payment of any kind. 
2. National law 
Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 11 March 
2004 on VAT, Dziennik Ustaw (Journal of Laws; ‘Dz. U’) of 2018, item 2174, as 
amended; ‘the Law on VAT’) 
Article 52(1). The importation, subject to paragraph 2 below, of goods placed in a 
consignment sent from the territory of a third country by an individual and 
intended for an individual residing in the national territory shall be exempt from 
tax if all of the following conditions are met: 
(1) the quantity and type of goods do not indicate their commercial intent; 
(2) the consignee is not required to pay fees to the consignor in connection with 
the receipt of the consignment; 
(3) the consignments are of an occasional nature. 
Article 2(1). All references to national territory shall be construed as references to 
the territory of the Republic of Poland, subject to Article 2a. 
II. Facts  
1. Procedure before the tax authority. 
1.1. L. s.c. [L. civil partnership] […] (‘the partnership’ or ‘the appellant’) applied 
to the Dyrektor Krajowej Informacji Skarbowej (Director of the National Tax 
Information Service; ‘the Director of the NTIS’) for a written advance tax ruling 
regarding VAT. Presenting the facts of the case and the future event in its 
application, the appellant stated that in the course of its business, it engages, inter 
alia, in freight forwarding and customs clearance of consignments from 
individuals residing in the territory of third countries (mainly the United States 
and Canada) intended for individuals residing in Member States of the European 
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Union (mainly Poland, Lithuania and Romania, but also the Czech Republic, 
Slovakia, Bulgaria and others) or in other countries outside the European Union 
(‘the EU’). 
Its application concerned the VAT consequences of releasing for free circulation 
in the territory of Poland consignments that cumulatively meet the following 
conditions: 
- the consignments are sent by individual consignors from third countries 
outside the European Union (for instance, the United States or Canada); 
- the consignments are intended for individual consignees residing in Poland 
or other European Union countries (for instance, Lithuania, Romania, the Czech 
Republic, Slovakia, Bulgaria and others); 
- the quantity and type of goods contained in the consignment do not indicate 
their commercial nature; 
- the consignee is not required to pay fees to the consignor in connection with 
the receipt of the consignment; 
- the consignments are of an occasional nature; 
- the total value of the goods in the consignments does not exceed the 
equivalent of EUR 45, and the goods in the consignments do not exceed the 
quantities and limits referred to in Article 52(2) of the Law on VAT. 
Having regard to the above, the partnership asked the following question: 
Given the presented facts of the case (concerning a future event), will the 
importation into Poland of goods placed in a consignment sent from the territory 
of a third country outside the European Union by an individual and intended for 
an individual in a European Union Member State other than Poland be exempt 
from VAT under Article 52 of the Law on VAT (assuming that the other 
conditions listed in Article 52(1)(1), (2) and (3) and in Article 52(2) and (3) of the 
Law on VAT are met) read in conjunction with Article 143(b) of Council 
Directive 2006/112 and Council Directive 2006/79? 
According to the partnership, the importation into Poland of goods placed in a 
consignment sent from the territory of a third country outside the European Union 
by an individual and intended for an individual in a European Union Member 
State other than Poland will be exempt from VAT under Article 52 of the Law on 
VAT (assuming that the other conditions listed in Article 52(1)(1), (2) and (3) and 
in Article 52(2) and (3) of the Law on VAT are met) read in conjunction with 
Article 143(b) of Council Directive 2006/112 and Council Directive 2006/79. 
1.2. In the advance tax ruling of 22 March 2019, the Director of the NTIS stated 
that the partnership’s position was incorrect. The Director of the NTIS found that 
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in the case at issue, the importation into Poland of goods placed in a consignment 
sent from the territory of a third country by an individual and intended for an 
individual in a European Union Member State other than Poland would not be 
exempt from VAT. 
III. Proceedings before the administrative courts 
1. By its judgment of 12 June 2019 […], the Regional Administrative Court in 
Warsaw dismissed the partnership’s action against the advance tax ruling of the 
Director of the NTIS of 22 February 2019. 
In the grounds of the judgment, the court of first instance first cited the content of 
the national and EU regulations applicable to the case. The court pointed out that 
in Article 143(b) of Directive 2006/112, the EU legislature, referring to the tax 
exemption for the importation of goods, indicated a Member State, and not the 
[Union], as the territory of all its Member States. 
That court stressed that in the definition of ‘Member State’ adopted in Article 5(2) 
of Directive 2006/112, the phrase ‘the territory of each Member State’ does not 
mean the territory of the [Union], but each Member State individually. 
Accordingly, it follows from national and EU regulations that consignments to 
individuals residing in the Member State in question rather than within the 
[Union] are exempt from tax. 
According to the court of first instance, the EU legislature, had it intended to 
introduce an exemption for consignments to individuals residing in any of the 
Member States of the [Union], would have used the term [‘Union’] rather than 
‘Member State’ in Article 143(b) of Directive 2006/112. This is confirmed by the 
fact that value added tax is a territorial tax, which is reflected not only in the 
definition of the ‘territory of a Member State’, but also in the provisions on the 
place of supply in connection with the supply of goods. As a result, the court of 
first instance held that the territorial scope of application of Directive 2006/ 
corresponds to each Member State’s territory with respect to that Member State’s 
value added tax legislation. Accordingly, the interpretation adopted by the 
appellant of both Article 52 of the Law on VAT and Article 143(b) of Directive 
2006/112 is broad and goes beyond the legal norm enshrined in the 
abovementioned provisions. 
Consequently, according to the court, in the context of the place of taxation with 
regard to the importation of goods under the above provisions, the legislature, by 
indicating in Article 52 of the Law on VAT that the individual for whom the 
goods are intended must reside in the territory of Poland, does not restrict the 
scope of the exemption in question, since it follows from both Article 143(b) of 
Directive 2006/112 and Article 52 of the Law on VAT that the importation must 
concern an individual in the Member State of importation of the goods. Therefore, 
if the importation of goods takes place and is recognised in the territory of Poland, 
the individual for whom the goods are imported must reside in Poland. 
L. 
 
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2. In its appeal on a point of law, the partnership, appealing against the above 
judgment in its entirety, alleged that the court had infringed the following 
provisions: 
(1) Article 52(1) of the Law on VAT, read in conjunction with Article 143(b) of 
Directive 2006/112, and recital (3) of the preamble and Article 1(1) of Council 
Directive 2006/79, through its misinterpretation; 
(2) Article 91(3) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of 
the Republic of Poland), read in conjunction with the third sentence of Article 288 
of the Treaty on the Functioning of the European Union (TFEU), read in 
conjunction with Article 52(1) of the Law on VAT, Article 143(b) of Directive 
2006/112, and recital (3) and Article 1(1) of Directive 2006/79, through an 
incorrect assessment as to the application of provisions of substantive law and, 
consequently, a failure to apply them; 
(3) Article 143(b) of Directive 2006/112, read in conjunction with Article 1(1) 
of Directive 2006/79 and recital (3) of Directive 2006/79, through an incorrect 
assessment as to the application of provisions of substantive law consisting in a 
failure to apply them to the case at issue, whereas they should have been applied; 
(4) Article 143(b) of Directive 2006/112, read in conjunction with Article 1(1) 
of Directive 2006/79, through its misinterpretation, in that the court of first 
instance held that the Director of the NTIS was correct to interpret the phrase 
‘private persons in a Member State’ to mean private persons in a particular 
Member State, that is to say, the Member State where the importation (recognition 
of the importation of goods) takes place, whereas that phrase should be interpreted 
to mean private persons in any EU Member State; 
(5) Article 1(1) of Directive 2006/79, read in conjunction with Article 143(b) of 
Directive 2006/112 and Article 25(1) of Council Regulation (EC) No 1186/2009, 
through its misinterpretation, consisting in the recognition and acceptance of the 
position presented in the advance tax ruling that the phrase ‘private persons in a 
Member State’ should be interpreted to mean private persons in the Member State 
where the importation takes place, that is to say, where the importation of goods is 
recognised, whereas that phrase should be interpreted to mean private persons in 
any EU Member State; 
(6) the third sentence of Article 288 TFEU, read in conjunction with 
Article 52(1) of the Law on VAT, Article 143(b) of Directive 2006/112, recital (3) 
and Article 1(1) of Directive 2006/79, and Article 25(1) of Regulation 
No 1186/2009 through its misinterpretation, consisting in the finding that the 
provisions of Directive 2006/79 were correctly transposed into the Polish legal 
order, which means that the Polish legislature fulfilled the purpose of the directive 
as to the result to be achieved, whereas the phrase ‘intended for an individual 
residing in the national territory’ in the first sentence of Article 52(1) of the Law 
on VAT defines the scope of exemption from VAT for the importation of goods in 
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a manner incompatible with the purpose stipulated in recital (3) of Directive 
2006/79: ‘… the limits within which such exemption is to be applied should […] 
be as far as possible the same as those laid down for the Community arrangements 
for exemption from customs duties […]’; 
(7) Article 52(1) of the Law on VAT, read in conjunction with Article 18 TFUE 
and Article 21(2) of the Charter of Fundamental Rights of the European Union 
(OJ 2012 C 326 of 26 October 2012, ‘the Charter’) through its misinterpretation, 
consisting in the finding that the first sentence of Article 52(1) of the Law on 
VAT is not contrary to the principle of non-discrimination enshrined in Article 18 
TFEU and Article 21(2) of the Charter, whereas the adopted interpretation of the 
first sentence of Article 52(1) of the Law on VAT results in a violation of the 
prohibition of discrimination and unequal treatment of EU citizens; 
(8) Article 146(1), read in conjunction with Article 145(1)(1)(a) and Article 151 
of the ustawa Prawo o postępowaniu przed sądami administracyjnymi (Law on 
Proceedings before Administrative Courts; ‘the LPAC’), by failing to set aside the 
advance tax ruling. 
In connection with the above, the partnership requested that the judgment under 
appeal be set aside in its entirety and that the case be referred back to the court of 
first instance […]. 
[…] 
In response to the appeal on a point of law, the Director of the NTIS requested 
that the appeal be dismissed and that costs be awarded in accordance with the 
prescribed rates. 
IV. Reasoning in the request for a preliminary ruling referred by the national 
court (Supreme Administrative Court). 
1. By referring the question for a preliminary ruling, the Supreme 
Administrative Court seeks an answer from the Court of Justice as to whether the 
position of the authority issuing the advance tax ruling is correct, namely that the 
importation of goods placed in a consignment sent from the territory of a third 
country by an individual and intended for an individual residing in the territory of 
a European Union Member State other than the territory of the country of 
importation is not exempt from VAT. 
2. Two different positions have been presented in the case at issue. 
In its judgment of 2 July 2009 in Case C-7/08 […], the Court of Justice held that 
Article 27 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a 
Community system of reliefs from customs duty, as amended by Regulation 
(EEC) No 3357/91 of 7 November 1991, does not preclude grouped consignments 
of goods, with a combined intrinsic value which exceeds the value threshold laid 
down in Article 27, but which are individually of negligible value, from being 
L. 
 
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admitted free of import duties, provided that each parcel of the grouped 
consignment is addressed individually to a consignee within the European 
[Union]. In that respect, the fact that the contractual partner of those consignees is 
itself established in the European [Union] is not relevant where the goods are 
dispatched directly from a third country to those consignees. 
Therefore, the fact that the parcels at issue in the main proceedings, of an 
individual value not exceeding EUR 22, are presented to customs as a group for 
the purpose of their dispatch in the [European Union] does not preclude their 
being granted relief, since, as soon as they leave the third country of dispatch, the 
consignee of each of those parcels is identified (paragraph 38 of the judgment). 
Secondly, it must be recalled that, according to the third recital of Regulation 
No 2287/83, in order to avoid any abuse of the customs relief and the distortions 
of competition resulting therefrom, the consignments of goods should not be 
eligible for relief from import duties if, prior to their entry for free circulation, 
they were placed under another customs procedure. Consequently, the relief only 
applies to consignments dispatched directly from a third country to a natural or 
legal person in the [Union] (paragraph 42 of the judgment). 
However, the mere fact that ECI is established in the [Union] does not make it 
possible, in itself, to find that the consignments of goods at issue in the main 
proceedings were placed under another customs procedure prior to their entry for 
free circulation in the Community. In any event, and without prejudice to the 
national court’s investigations to that effect, it is not apparent from the documents 
before the Court that that was the case with regard to those consignments 
(paragraph 43 of the judgment). 
It follows from all those considerations that Article 27 of Regulation No 918/83 as 
amended must be interpreted as meaning that it does not preclude grouped 
consignments of goods, with a combined intrinsic value which exceeds the value 
threshold laid down in that Article 27, but which are individually of negligible 
value, from being admitted free of import duties, provided that each parcel of the 
grouped consignment is addressed individually to a consignee within the 
Community. In that respect, the fact that the contractual partner of those 
consignees is itself established in the Community is not relevant where the goods 
are dispatched directly from a third country to those consignees (paragraph 49 of 
the judgment). 
The interpretation in conformity with EU law given by the Court of Justice allows 
goods imported from a third country into the territory of the European Union to be 
exempt from value added tax irrespective of whether the consignment first arrived 
in one Member State and then was forwarded to an individual consignee in 
another Member State. 
In national case-law, it is emphasised that the exemption provided for in 
Article 52(1) of the Law on VAT for the importation of goods placed in a grouped 
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consignment sent from the territory of a third country to the territory of the 
Republic of Poland by an individual and intended for an individual – if the 
quantity and type of goods do not indicate their commercial intent, the consignee 
is not obliged to pay fees to the consignor in connection with the receipt of the 
consignment and the consignments are of an occasional nature – covers goods 
placed in a consignment intended for an individual residing in the territory of the 
Republic of Poland. 
However, the above exemption does not cover the importation of goods placed in 
a grouped consignment sent from the territory of a third country to the territory of 
the Republic of Poland which are intended for an individual residing in the 
territory of the [Union] outside the territory of the Republic of Poland (judgment 
of the Supreme Administrative Court of 13 April 2023 […]). 
In the grounds of the judgment, it is indicated that it cannot reasonably be argued 
that ‘the provisions of Directive 2006/79 do not differentiate between the place of 
residence (domicile) of the final consignee of the dispatched goods’ since, as has 
been clarified above, the place of importation of the goods is a Member State. 
Both the tax liability arising from the importation of goods and the related tax 
exemption provided for imports of small consignments of goods of a non-
commercial character from a private person from a third country to another private 
person in a Member State are linked to the place of residence (domicile) of the 
final consignee of the dispatched goods in a Member State. 
That arrangement does not interfere with the value added tax system in another 
EU Member State, since it does not provide for an exemption from value added 
tax. 
[…]