Opinion of the Advocate General — ECLI:EU:C:2021:222
Date: 2021-03-18
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 November 2019 
Referring court: 
Naczelny Sąd Administracyjny (Poland) 
Date of the decision to refer: 
17 October 2019 
Applicant: 
G. Sp. z o.o. 
Defendant: 
Dyrektor Izby Administracji Skarbowej w Bydgoszczy 
  
Subject matter of the case in the main proceedings 
Obligation and terms of VAT payment on the intra-Community acquisition of 
diesel fuel 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
Questions referred 
I. Do Article 110 of the Treaty on the Functioning of the European Union 
(consolidated version 2012) (OJ 2012 C 326, p. 1 et seq.) and Article 273 of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (OJ 2006 L 347, p. 1, as amended; ‘Directive 2006/112/EC’) not 
preclude a provision such as Article 103(5a) of the Ustawa z dnia 11 marca 
2004 r. o podatku od towarów i usług (Law of 11 March 2004 on the tax on goods 
and services) (Journal of Laws [Dz. U.] of 2016, item 710, as amended; ‘the VAT 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-855/19 
 
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Law’, which stipulates that, in the case of an intra-Community acquisition of 
motor fuels, the taxable person is obliged, without being called upon to do so by 
the head of the customs office, to calculate and pay the amounts of tax to the 
account of the customs office competent for dealing with the payment of excise 
duty: 
(1) within 5 days of the date on which the goods in question enter the place of 
receipt of excise goods specified in the relevant permit — if the goods are the 
subject of intra-Community acquisition within the meaning of the Ustawa z dnia 
6 grudnia 2008 r. o podatku akcyzowym (Law of 6 December 2008 on excise 
duty) by a registered consignee under the excise duty suspension procedure 
pursuant to the provisions on excise duty; 
(2) within 5 days of the date on which such goods enter a tax warehouse from 
the territory of a Member State other than Poland; 
(3) upon the movement of these goods within the territory of Poland — if the 
goods are moved outside of the excise duty suspension procedure pursuant to the 
provisions on excise duty? 
II. Does Article 69 of Directive 2006/112/EC preclude a provision such as 
Article 103(5a) of the VAT Law, which stipulates that, in the case of the intra-
Community acquisition of motor fuels, the taxable person is obliged, without 
being called upon to do so by the head of a customs office, to calculate and pay 
the amounts of tax to the account of the customs office competent for dealing with 
the payment of excise duty: 
(1) within 5 days of the date on which the goods in question enter the place of 
receipt of excise goods specified in the relevant permit — if the goods are the 
subject of intra-Community acquisition within the meaning of the Law of 
6 December 2008 on excise duty by a registered consignee under the excise duty 
suspension procedure pursuant to the provisions on excise duty; 
(2) within 5 days of the date on which such goods enter a tax warehouse from 
the territory of a Member State other than Poland; 
(3) upon the movement of these goods within the territory of Poland — if the 
goods are moved outside of the excise duty suspension procedure pursuant to the 
provisions on excise duty: 
– where the above amounts are interpreted as not constituting interim VAT 
payments within the meaning of Article 206 of Directive 2006/112/EC? 
III. Does an interim VAT payment within the meaning of Article 206 of 
Directive 2006/112/EC which is not paid on time lose its legal status at the end of 
the tax period for which it is to be paid?  
G. 
 
3 
Applicable provisions of EU law 
Treaty on the Functioning of the European Union: Article 110 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘the VAT Directive’): Articles 69, 206, 250, 258, 273 
Applicable provisions of national law 
Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 11 March 
2004 on the tax on goods and services) (Dziennik Ustaw (Journal of Laws) 
[Dz. U.] of 2016, item 710, as amended, ‘the VAT Law’): 
Article 103(5a) (in the wording in force from 1 August 2016 to 1 March 2017): 
In the case of the intra-Community acquisition of the motor fuels listed in 
Annex 2 to the Law of 6 December 2008 on excise duty, the production or 
marketing of which requires a licence pursuant to the provisions of the Ustawa z 
dnia 10 kwietnia 1997 r. — Prawo energetyczne (Energy Law of 10 April 1997), 
the taxable person shall be obliged, without being called upon to do so by the head 
of a customs office, to calculate and pay the amounts of tax to the account of the 
customs chamber competent for excise duty: 
(1) within 5 days of the date on which the goods in question enter the place of 
receipt of excise goods specified in the relevant permit — if the goods are the 
subject of intra-Community acquisition within the meaning of the Law of 
6 December 2008 on excise duty by a registered consignee under the excise duty 
suspension procedure pursuant to the provisions on excise duty; 
(2) within 5 days of the date on which such goods enter a tax warehouse from 
the territory of a Member State other than Poland; 
(3) upon the movement of these goods within the territory of Poland — if the 
goods are moved outside of the excise duty suspension procedure pursuant to the 
provisions on excise duty. 
Article 20(5): 
In the case of the intra-Community acquisition of goods, the chargeable event 
shall occur on issue of the invoice by the VAT-taxable person, but no later than on 
the 15th day of the month following the month in which the supply of goods that 
are the subject of intra-Community acquisition occurs, subject to paragraphs 8 and 
9 and to Article 20b. The provision of paragraph 1a shall apply mutatis mutandis. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-855/19 
 
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Brief summary of the facts and the procedure in the main proceedings 
The tax authorities established that, in December 2016, the applicant (G. Sp. 
z o.o., having its seat in B.) made an intra-Community acquisition of 3 190.874 m3 
of diesel fuel with CN code 2710 19 43 and, as a consequence, was liable to pay 
tax on goods and services (VAT) pursuant to Article 103(5a) of the VAT Law 
within five days of each date of those goods entering the territory of Poland, on 20 
transactions in total, amounting to PLN 1 530 766, which the applicant failed to 
do. 
Moreover, although pursuant to Article 99(11a) of the VAT Law, in the case of 
the intra-Community acquisition of goods referred to in Article 103(5a), the 
taxable person is obliged to submit returns to the head of the customs office 
competent for excise duty indicating the amounts of tax due for monthly periods 
by the 5th day of the month following the month in which the obligation to pay 
the tax arose, the applicant failed to submit the VAT-14 return for the period 
covered by the main proceedings. 
Consequently, it was held that the applicant had VAT arrears amounting to 
PLN 1 530 766 for December 2016, which, together with the interest for late 
payment due, should be paid promptly to the bank account of the tax office. 
The company appealed against the decision of the Dyrektor Izby Administracji 
Skarbowej w Bydgoszczy (Director of the Tax Administration Chamber in 
Bydgoszcz) of 6 April 2018 concerning VAT for December 2016 to the 
Wojewódzki Sąd Administracyjny w Bydgoszczy (Regional Administrative Court 
in Bydgoszcz), which dismissed the appeal in its judgment of 10 July 2018.  
The court of first instance agreed with the review body that the applicant should 
have accounted for the tax pursuant to Article 103(5a) of the VAT Law. 
According to that court, it was irrelevant whether the applicant did in fact hold a 
licence or that the purchased oil was neither offered for sale nor used to power 
internal combustion engines (it was intended to be used for the manufacture of 
products other than motor fuels). 
That court also held that the amounts payable under Article 103(5a) of the VAT 
Law were not interim VAT payments, but rather tax amounts owed (‘a separate 
tax arrangement’). It also found no incompatibility between Article 103(5a) of the 
VAT Law, on the one hand, and Article 206 of the VAT Directive and Article 110 
TFEU, on the other. 
The company brought an appeal on a point of law against that judgment before the 
Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), which 
has stayed the proceedings and referred questions to the Court of Justice for a 
preliminary ruling. 
G. 
 
5 
Grounds for the order for reference 
The first question 
1 On 1 August 2016, the Ustawa z dnia 7 lipca 2016 r. o zmianie ustawy o podatku 
od towarów i usług oraz niektórych innych ustaw (Law of 7 July 2016 amending 
the VAT Law and certain other laws) (Journal of Laws [Dz. U.] of 2016, item 
1052, as amended) entered into force. This introduced the ‘fuel package’, that is, a 
set of amendments intended to make the collection of VAT on intra-Community 
acquisitions of motor fuels more effective and thus prevent VAT fraud related to 
cross-border trade in such fuels. 
2 The new provisions added in Article 103(5a)-(5d) of the VAT Law introduced an 
important change since, under the provisions in force until 31 July 2016, intra-
Community acquisition of motor fuels did not require VAT to be paid at the time 
of acquisition (within a set period from the fuel entering the territory of Poland) 
because, as a rule, an active VAT taxable person accounted for the acquisition — 
with regard to input and output VAT — in a VAT-7 return submitted by the 25th 
day of the month following each subsequent tax period (month or quarter). The 
VAT-7 return included the output VAT related to the intra-Community acquisition 
of fuels as well as input VAT in the same amount as the output VAT (provided 
that the acquisition involved a taxable sale). 
3 In its appeal on a point of law, the applicant has claimed that the new provision of 
Article 103(5a) of the VAT Law is incompatible with Article 110 TFEU in that it 
establishes a tax that discriminates against goods from other EU Member States. 
4 Under Article 110 TFEU, no Member State may impose, directly or indirectly, on 
the products of other Member States any internal taxation of any kind in excess of 
that imposed directly or indirectly on similar domestic products. Furthermore, no 
Member State may impose on the products of other Member States any internal 
taxation of such a nature as to afford indirect protection to other products. 
5 In its appeal on a point of law, the applicant has pointed out that the Court of 
Justice, in its case-law, has interpreted that provision at least twice in the context 
of establishing earlier payment dates for taxes on goods imported from other 
Member States of the European Union. Firstly, in its judgment of 27 February 
1980, Commission v Ireland, 55/79, EU:C:1980:56, the Court held that, where 
domestic traders who trade in particular types of goods enjoy longer VAT 
payment terms than traders who purchase similar goods originating in other 
Member States, this amounts to discriminatory treatment of those goods. 
6 Secondly, in its judgment of 17 June 1998, Grundig Italiana, C-68/96, 
EU:C:1998:299, the Court held that Article 95 of the Treaty (now Article 110 
TFEU) must be considered to have been infringed where, for imported goods, the 
obligation to pay the charge arises at the time of importation through customs, 
whereas, for domestic goods, it arises only when the domestic producer lodges the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-855/19 
 
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return with the tax authorities during the month following the quarter in which the 
goods have been placed on the market, the event giving rise to the charge 
occurring when the product intended for consumption is placed on the domestic 
market (paragraph 25). As a consequence, the Court found that Article 95 of the 
Treaty is to be interpreted as precluding a Member State from introducing and 
levying a consumption tax in so far as the taxable amount and the procedure for 
collecting the tax are different for domestic products and for products imported 
from other Member States. 
7 Thus, in those judgments, the Court held that Article 95 of the Treaty (now 
Article 110 TFEU) must be interpreted as precluding national legislation which 
provides for a payment period with respect to tax on goods from other Member 
States which is shorter than that on similar domestic goods, which should be 
binding on national courts. 
8 The Court held that an accelerated payment period for goods from other Member 
States discriminates against those goods, which is logical, since deferred tax 
payment confers an economic advantage on the trader and, if the payment period 
for goods from other Member States is accelerated, this amounts to a financial 
disadvantage for the trader. 
9 The applicant has claimed that this is the case with Article 103(5a) of the VAT 
Law, since that provision lays down accelerated terms for the payment of VAT on 
motor fuels from other Member States. It should be noted that the right to deduct 
tax in this regard arises pursuant to Article 86(2)(4)(c), in conjunction with 
Article 86(10) and Article 86(10b)(2); of the VAT Law — for the period in which 
the chargeable event arose in relation to the goods and services purchased by the 
taxable person (Article 20(5) of the VAT Law), provided that the taxable person: 
(a) receives an invoice documenting the supply of goods, which is an intra-
Community acquisition of goods for the taxable person in question, within three 
months of the end of the month in which the chargeable event arose in relation to 
the goods acquired; 
(b) includes the amount of output tax on the intra-Community acquisition of 
goods in the tax return in which the taxable person is required to account for that 
tax, not later than three months from the end of the month in which the chargeable 
event arose in relation to the goods acquired. 
10 The discrepancy between tax payment periods under Article 103(5a) of the VAT 
Law and the point at which the taxable person becomes entitled to deduct the tax 
on intra-Community acquisition of fuels results clearly in the need for the buyer to 
engage more of its own funds to perform the accelerated VAT settlement. By 
contrast, traders who trade in similar domestic goods pay tax by the 25th day of 
the month following the month in which the supply takes place. 
11 Under Article 273 of the VAT Directive, Member States may impose other 
obligations which they deem necessary to ensure the correct collection of VAT 
G. 
 
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and to prevent evasion, subject to the requirement of equal treatment as between 
domestic transactions and transactions carried out between Member States by 
taxable persons and provided that such obligations do not, in trade between 
Member States, give rise to formalities connected with the crossing of frontiers. 
12 Although Article 258 of the VAT Directive provides that Member States are to lay 
down detailed rules for the submission of VAT returns in respect of intra-
Community acquisitions of new means of transport, as referred to in 
Article 2(1)(b)(ii), and intra-Community acquisitions of products subject to excise 
duty, as referred to in Article 2(1)(b)(iii), firstly, this concerns intra-Community 
acquisitions of excise goods by traders who are not required to account for VAT 
on other intra-Community acquisitions and, secondly, this provision refers to the 
submission of returns rather than the rules for collecting VAT, which are the 
subject of the dispute in the present case. 
13 On the other hand, the freedom of Member States to set VAT payment terms, 
including in the case of the title at issue, is limited by the requirements arising in 
this respect from Article 273 of the VAT Directive, namely: 
- the obligations must be necessary to ensure the correct collection of VAT 
and to prevent evasion; 
- they must ensure the equal treatment of domestic transactions and intra-
Community transactions; 
- they must not give rise to formalities connected with the crossing of 
frontiers. 
14 In the case of the disputed Article 103(5a) of the VAT Law, there are doubts as to 
whether that provision meets the latter two criteria. 
The second question 
15 If the Court of Justice should find that the rule governing accelerated VAT 
payments under Article 103(5a) of the VAT Law is not incompatible with 
Article 110 TFEU and Article 273 of the VAT Directive, the second contentious 
issue in the present case in relation to the provisions of the VAT Directive is the 
nature of those payments in the context of the point in time at which the 
chargeable event occurs, that is to say, whether the tax payments provided for in 
Article 103(5a) of the VAT Law are a separate arrangement for the accelerated 
collection of VAT or whether they constitute interim payments within the 
meaning of Article 206 of the VAT Directive. 
16 First of all, under Article 69 of the VAT Directive (since 1 January 2013), in the 
case of the intra-Community acquisition of goods, VAT is to become chargeable 
on issue of the invoice, or on the passing of the time limit referred to in the first 
paragraph of Article 222 if no invoice has been issued by that time. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-855/19 
 
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17 In the light of that provision, the chargeable event occurs on issue of the invoice, 
and, if no invoice has been issued before the date of the intra-Community 
acquisition, the chargeable event occurs on the 15th day of the month following 
the month in which the chargeable event occurred. 
18 This is a special regulation and therefore there are no exceptions to it. What this 
means is that VAT on intra-Community acquisitions of goods becomes payable by 
the taxable person only on the occurrence of the above circumstances. 
19 Article 69 of the VAT Directive was implemented by Article 20(5) of the VAT 
Law, which provides that in the case of the intra-Community supply of goods, the 
chargeable event occurs on issue of the invoice by the taxable person, but no later 
than on the 15th day of the month following the month in which the supply of 
goods occurs. 
20 Against the background of these rules, the question arises as to whether VAT on 
intra-Community acquisitions of motor fuels can be collected, as provided for in 
Article 103(5a) of the VAT Law, even before the chargeable event provided for in 
Article 69 of the VAT Directive (Article 20(5) of the VAT Law) occurs. 
21 If it is assumed that the tax payments referred to in Article 103(5a) of the VAT 
Law are a separate arrangement for the accelerated collection of VAT, then the 
obligation to make those payments before the date on which the chargeable event 
occurs under Article 69 of the VAT Directive (Article 20(5) of the VAT Law) 
should be regarded as incompatible with the provisions in question, since there are 
no grounds to require the taxable person to pay VAT before the chargeable event. 
22 It therefore appears that it is only if those payments are to be regarded as interim 
payments under Article 206 of the VAT Directive that it would be possible to 
establish that they are compatible with the above provisions. 
23 Pursuant to Article 206 of the VAT Directive, any taxable person liable for 
payment of VAT must pay the net amount of the VAT when submitting the VAT 
return provided for in Article 250 of that directive. Member States may, however, 
set a different date for payment of that amount or may require interim payments to 
be made. 
24 The first sentence of that provision provides for the obligation to pay the net 
amount of the VAT when submitting the VAT return provided for in Article 250. 
However, the payment provided for in Article 103(5a) of the VAT Law, which is 
calculated by multiplying the price of motor fuels acquired by way of an intra-
Community acquisition by the applicable tax rate, without deducting input tax, is a 
gross payment. 
25 That payment is due within 5 days of the entry of the motor fuel into the territory 
of Poland, that is, before the obligation to submit a VAT-14 return specific to 
these transactions, in which all intra-Community acquisitions of motor fuels 
during the previous month must be reported and the tax on them indicated (which 
G. 
 
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must be paid earlier, by the dates set forth in Article 103(5a) of the VAT Law). 
The return must be submitted to the competent authority by the 5th day of the 
month following the month in which the obligation to pay tax under 
Article 103(5a) of the VAT Law arose, with the indicated amount of tax for a 
given month being the sum of partial amounts in regard to individual transactions 
during that period, which should be paid in accordance with Article 103(5a) and 
(5b) of the Law. 
26 It should be pointed out that the net amount of the VAT, pursuant to the first 
sentence of Article 206 of the VAT Directive, is only indicated by the taxable 
person in the VAT-7 return (submitted after the end of the tax period) in which the 
taxable person includes the output VAT paid under Article 103(5a) of the VAT 
Law in the given tax period in connection with intra-Community acquisitions of 
fuel as well as the amount of output VAT on intra-Community acquisitions of 
other goods, deducting the relevant input tax for that tax period from those 
amounts. 
27 As the Court pointed out in its judgment of 26 March 2015, Macikowski, 
C-499/13, EU:C:2015:201, it follows from Articles 206 and 250 of the VAT 
Directive that the amount of VAT paid to the public exchequer must be a net 
amount, that is to say, an amount which takes account of the deductions to be 
made, and that all the deductions must be made in relation to the tax period during 
which they arose. 
28 Thus, if the second sentence of Article 206 of the VAT Directive provides for the 
possibility to ‘set a different date for payment of that amount’, the amount in 
question is the amount referred to in the first sentence, namely, the net amount of 
the VAT rather than the gross amount. Thus, where a Member State imposes an 
obligation to pay the gross amount on a given intra-Community acquisition of 
goods, such as that provided for in Article 103(5a) of the VAT Law, it appears 
that the amount in question cannot be VAT with a different payment period set but 
rather the interim payment referred to at the end of the second sentence of 
Article 206 of the Directive. 
29 In the aforementioned Macikowski judgment, the Court of Justice (albeit in respect 
of the paying agent) held that, if the paying agent pays the VAT owed on the 
transaction indicated in the return by the taxable person, such a situation may be 
justified under the second sentence of Article 206 of the VAT Directive, which 
permits Member States to require interim payments to be made. 
30 In those circumstances, it appears that, in order for the payments to be made by 
the taxable person under Article 103(5a) of the VAT Law to be considered 
compatible with Articles 69 and 206 of the VAT Directive, they must be regarded 
as interim payments within the meaning of Article 206 of the VAT Directive. 
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The third question 
31 If it is assumed that the taxable person’s payments referred to in Article 103(5a) of 
the VAT Law are interim tax payments, a further question arises as to whether an 
interim VAT payment within the meaning of Article 206 of the VAT Directive 
which is not paid on time loses its legal status at the end of the tax period for 
which it is to be paid; the answer to this question is essential in order to determine 
whether interim payments can be assessed after the end of the tax period and also 
to determine the point in time up to which interest on interim payments not paid 
on time should be calculated. 
32 Under the interim payment system, payments are made during the entire tax 
period towards a liability that will be determined only in the future (after the end 
of the tax period). Only then does the taxable person make a final settlement with 
the public exchequer through an additional payment or refund of the amounts 
overpaid in interim payments, accounting for — in the case of VAT — input tax, 
which results in the determination of the net amount of tax to be paid (or the 
amount of VAT refund). Therefore, after the end of the tax period, it appears that 
gross interim tax payments should not be assessed and tax arrears should not be 
determined in this connection, as at this point the actual tax liability has already 
been determined as the net tax liability for the entire period towards which the 
interim payments were to be collected. 
33 The separate nature of the tax liability on account of gross interim payments, and 
thus their legal independence, does not mean that these are unrelated to the net tax 
liability for a given tax period for which gross interim payments are due. 
34 The tax liability on account of interim payments is one form of tax liability, but its 
essence is that after the end of the tax period, the liability on account of interim 
payments ceases to exist as the actual amount of tax for that period is determined. 
This follows from the temporary nature of interim payments, as a result of which 
the right to assess such payments should cease at the end of the tax period. 
35 This would mean that an interim payment not made on time becomes a tax 
liability, but only until it expires as a legal entity, that is, until the end of the tax 
period for which it is due.  
36 It would therefore be pointless for the tax authority to determine the gross amount 
of interim tax payments due where they have not been correctly made, but this 
should not release the taxable person from the obligation to pay interest on interim 
payments not made in time where these exceed the amount of output tax for the 
tax period in question.