Order;Information — ECLI:EU:C:2026:285
Date: 2026-03-25
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-593/25 – 1 
Case C-593/25 
Request for a preliminary ruling 
Date lodged: 
15 July 2025 
Referring court: 
Naczelny Sąd Administracyjny (Poland) 
Date of the decision to refer: 
10 January 2025 
Appellant: 
T. sp. z o.o. 
Respondent: 
Dyrektor Izby Administracji Skarbowej w Katowicach 
  
ORDER 
10 January 2025 
The Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) 
[…] 
following the hearing on 10 January 2025 
in the Izba Finansowa (Finance Chamber) 
of the appeal on a point of law brought by T. sp. z o.o. with its registered office 
in K. 
against the judgment of the Wojewódzki Sąd Administracyjny w Gliwicach 
(Regional Administrative Court, Gliwice) 
of 25 November 2020 […] in the case brought by T. sp. z o.o. with its registered 
office in K. 
EN 
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against the decision of the Dyrektor Izby Administracji Skarbowej w 
Katowicach (Director of the Tax Administration Chamber, Katowice) 
dated 1 June 2020 […] 
concerning the annulment of the decision to refuse reimbursement of excise 
duty, decides: 
1. to refer 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 (consolidated 2012 version – OJ 2012 C 326, p. 1): 
‘Do the principles of EU law, such as the principles of equivalence and 
effectiveness, preclude an interpretation and judicial practice that 
introduces additional conditions for claiming reimbursement of excise 
duty on electricity imposed on electricity producers in the form of 
financial loss incurred by the tax-paying entity?’ 
2. to stay the proceedings in the case pursuant to Article 124(1)(5) of the 
ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed sądami 
administracyjnymi […] (Law of 30 August 2002 on Proceedings before 
Administrative Courts) (consolidated text: Dziennik Ustaw (Journal of 
Laws) of 2024, item 935) pending an answer to the above question referred 
for a preliminary ruling. 
Grounds 
I. Legal framework 
A. Provisions of European Union law relied on: 
1. Treaty on European Union […] (‘the TEU’) 
Article 4(3): Pursuant to the principle of sincere cooperation, the Union and the 
Member States shall, in full mutual respect, assist each other in carrying out tasks 
which flow from the Treaties. 
The Member States shall take any appropriate measure, general or particular, to 
ensure fulfilment of the obligations arising out of the Treaties or resulting from 
the acts of the institutions of the Union. 
The Member States shall facilitate the achievement of the Union’s tasks and 
refrain from any measure which could jeopardise the attainment of the Union’s 
objectives. 
2. Council Directive 92/12/EEC of 25 February 1992 on the general 
arrangements for products subject to excise duty and on the holding, movement 
and monitoring of such products (OJ 1992 L 76, p. 1), as amended by Council 
Directive 2004/106/EC of 16 November 2004 (OJ 2004 L 359, p. 30) (‘Directive 
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92/12’), establishes a system for products subject to excise duty and other indirect 
taxes that are directly or indirectly related to the sale of those products. 
The first subparagraph of Article 5(1) of the directive provides that products 
falling within its scope ‘shall be subject to excise duty at the time of their 
production within the territory of the Community […] or of their importation into 
that territory’. 
Article 6: 
1. Excise duty shall become chargeable at the time of release for consumption 
or when shortages are recorded which must be subject to excise duty in 
accordance with Article 14(3). 
Release for consumption of products subject to excise duty shall mean: 
(a) any departure, including irregular departure, from a suspension arrangement; 
(b) any manufacture, including irregular manufacture, of those products outside 
a suspension arrangement; 
(c) any importation of those products, including irregular importation, where 
those products have not been placed under a suspension arrangement. 
2. The chargeability conditions and rate of excise duty to be adopted shall be 
those in force on the date on which duty becomes chargeable in the Member State 
where release for consumption takes place or shortages are recorded. Excise duty 
shall be levied and collected according to the procedure laid down by each 
Member State, it being understood that Member States shall apply the same 
procedures for levying and collection to national products and to those from other 
Member States. 
3. Council Directive 2003/96/EC of 27 October 2003 restructuring the 
Community framework for the taxation of energy products and electricity (OJ 
2003 L 283, p. 51) (‘Directive 2003/96’). 
Directive 2003/96 stipulates in Article 1 that Member States shall impose taxation 
on electricity. 
Article 3: References in Directive 92/12/EEC to ‘mineral oils’ and ‘excise duty’, 
in so far as it applies to mineral oils, shall be interpreted as covering […] 
electricity […]. 
Article 18a(9): The Republic of Poland may apply a transitional period until 
1 January 2006 to align its electricity taxation system with the Community 
framework. 
Article 21(5): For the purposes of applying Articles 5 and 6 of Directive 
92/12/EEC, electricity and natural gas shall be subject to taxation and shall 
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become chargeable at the time of supply by the distributor or redistributor. Where 
the delivery to consumption takes place in a Member State where the distributor 
or redistributor is not established, the tax of the Member States of delivery shall 
be chargeable to a company that has to be registered in the Member State of 
delivery. Tax shall in all cases be levied and collected according to procedures 
laid down by each Member State. 
Notwithstanding the first subparagraph, Member States have the right to 
determine the chargeable event, in the case where there are no connections 
between their gas pipelines and those of other Member States. 
An entity producing electricity for its own use is regarded as a distributor. 
Notwithstanding Article 14(1)(a), Member States may exempt small producers of 
electricity provided that they tax the energy products used for the production of 
that electricity. […] 
B. Provisions of national law relied on: 
1. Ustawa z dnia 29 sierpnia 1997 r. – Ordynacja podatkowa (Law of 
29 August 1997 establishing the Tax Code) […] (‘the Tax Code’): 
Article 72(1)(1): The following amounts shall be regarded as overpayment: 
tax which is overpaid or paid unduly. 
2. Ustawa z dnia 23 stycznia 2004 r. o podatku akcyzowym (Law on Excise 
Duty of 23 January 2004) (Dz. U. No 29, item 257, as amended) 
Article 2: The terms used herein shall have the following meanings: 
(1) excise goods – goods subject to excise duty as defined in Annex 1 to the 
Law; 
(2) harmonised excise goods – motor fuels, fuel oils and gas, alcoholic 
beverages and tobacco products as defined in Annex 2 to the Law; 
(3) non-harmonised excise goods – excise goods other than harmonised excise 
goods […]. 
Electricity is listed in Annex 1 to the Law on Excise Duty, but is not listed in 
Annex 2. 
Article 6(5): In the case of electricity, duty shall become chargeable on the date of 
its release. 
Article 60: 1. An entity that has delivered harmonised excise goods in the territory 
of a Member State, on which goods excise duty was paid in Poland, is entitled to 
reimbursement of excise duty. Excise duty shall be reimbursed at the request of 
the entity concerned. 
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2. Reimbursement shall also be due in the case of exports of harmonised excise 
goods on which goods excise duty was paid in Poland. 
3. Excise duty on intra-Community deliveries and exports of products bearing 
excise stamps […] shall not be reimbursed. 
Article 76: 1. Taxpayers making intra-Community acquisitions of non-harmonised 
excise goods are obliged, following their importation into Poland, to submit a 
simplified declaration to the competent head of the customs office and pay excise 
duty within 5 days, counting from the date on which the duty becomes chargeable. 
2. In the case referred to in paragraph 1 above, excise duty shall become 
chargeable on the date of importation of non-harmonised excise goods, but no 
later than on the seventh day following the date of their acquisition. 
3. Provisions of the ustawa z 30 sierpnia 2002 r. – Prawo o postępowaniu przed 
sądami administracyjnymi (Law of 30 August 2002 on Proceedings before 
Administrative Courts) (consolidated text: Dz. U. of 2024, items 935 and 1685): 
Article 187(1): If a legal issue that raises serious doubts emerges during the 
examination of an appeal on a point of law, the Naczelny Sąd Administracyjny 
(Supreme Administrative Court) may postpone the examination of the case and 
refer the issue to a panel of seven judges of that court for resolution. 
Paragraph 2. The resolution of a panel of seven judges of the Supreme 
Administrative Court shall be binding in the case in question. 
Article 269(1): If any panel of the administrative court hearing the case does not 
share the position taken in the resolution of the panel of seven judges, of the entire 
Chamber, or of the Supreme Administrative Court in full composition, it shall 
refer the legal issue to the relevant panel for resolution. The provisions of 
Article 187(1) and (2) shall apply mutatis mutandis. 
II. Facts of the case 
1. Proceedings before the tax authority 
1.1. By a letter dated 22 September 2008, E. S.A. (the legal predecessor of T. Sp. 
z o.o.), applied to the Naczelnik Urzędu Celnego (Head of the Customs Office) in 
K. for a declaration that excise duty for February 2008 had been overpaid. The 
applicant clarified that it had declared and paid excise duty that was not in 
compliance with Community law, that is to say, Council Directive 2003/96/EC of 
27 October 2003 restructuring the Community framework for the taxation of 
energy products and electricity […].That directive had shifted the burden of 
taxation of energy sales from the producer to the distributor/redistributor, meaning 
that the arrangement adopted under the Law on Excise Duty of 23 January 2004 
[…] (‘the UPA’), under which excise duty was paid by the producer, had become 
incompatible with the abovementioned legislation. 
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1.2. The tax authority issued a decision refusing the company’s application for a 
declaration that excise duty had been overpaid; it found that the applicant, which 
is a producer of electricity, had included the excise duty payable in the sale price 
of the electricity it sold. Reimbursing that excise duty would therefore lead to the 
applicant’s unjust enrichment, since the applicant was not the entity that 
ultimately bore the burden of paying the duty. 
2. Proceedings before the administrative courts 
2.1. The Wojewódzki Sąd Administracyjny w Gliwicach (Regional 
Administrative Court, Gliwice) dismissed the appeal. In justifying its ruling, the 
Regional Administrative Court emphasised that it was bound by the resolution of 
the Commercial Chamber of the Naczelny Sąd Administracyjny (Supreme 
Administrative Court) in full composition of 22 June 2011 […], in which it was 
stated that, within the meaning of Article 72(1) of the Tax Code, the amount of 
excise duty paid on the sale of electricity did not constitute an overpayment if the 
entity which paid the duty did not incur any financial loss as a result. Therefore, 
the tax authorities were obliged to examine whether the appellant had incurred a 
financial loss in connection with the payment of excise duty, while the 
administrative court was obliged to review the activities of the tax authorities in 
that regard. In the opinion of the court, the authorities correctly found that the 
appellant had been free to set the sale price of electricity during the period covered 
by the proceedings. It was difficult to accept that the appellant had purchased 
electricity on the imbalance market on which excise duty had been paid, bearing 
the economic burden of that duty as a consumer, and had subsequently sold the 
energy it produced without including the economic cost of the excise duty in the 
price, thus increasing the economic burden of the tax borne by itself. Such a 
course of action would have to be considered irrational and economically 
unjustified, to say the least. 
2.2. As regards the issue of the appellant’s financial loss caused by the payment 
of excise duty, or more specifically, the fact that the appellant bore the economic 
burden of that excise duty, the court found that the appellant had not actually 
borne that economic burden. In the opinion of the court of first instance, the tax 
authorities had correctly analysed the appellant’s economic situation on the basis 
of its management reports for the years 2006 to 2010, as well as its statements of 
income and expenses. The change in the rules concerning excise duty on 
electricity introduced from 1 March 2009 did not cause a reduction in the 
appellant’s operating expenses and total costs. In 2008, the appellant made a profit 
on its operations, and in 2007, it made a profit on its sales. Its economic 
performance therefore steadily improved, even though it paid excise duty. Also, 
the price of energy sold in subsequent years, namely in 2009 and 2010, increased 
significantly despite the fact that the appellant was no longer obliged to pay excise 
duty on the electricity it sold. 
2.3. The court upheld the tax authorities’ findings on the profitability of the 
appellant’s electricity sales during the period in question. 
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3. Proceedings before the Supreme Administrative Court 
3.1. The appellant challenged the judgment of the court of first instance in its 
entirety by way of an appeal on a point of law, alleging, inter alia: an infringement 
of substantive law, namely an infringement of Article 72(1)(1) of the Tax Code 
through its misapplication and an infringement of Article 21(5) of Council 
Directive 2003/96/EC of 27 October 2003 restructuring the Community 
framework for the taxation of energy products and electricity, read in conjunction 
with Article 288 of the Treaty on the Functioning of the European Union, through 
their misapplication, by finding that the tax paid by the appellant, imposed on it 
contrary to a directly effective provision of Council Directive 2003/96/EC, which 
had not been implemented, did not constitute an overpayment and was not subject 
to reimbursement; an infringement of the general principles of EU law – the 
principle of repayment of sums unduly paid, the principle of effective judicial 
protection, the principle of effectiveness, and the principle of equivalence through 
a failure to apply them by accepting the tax authorities’ refusal to reimburse 
excise duty levied in breach of EU regulations, where that refusal was based on 
the condition of ‘incurring a financial loss’, which condition does not follow 
clearly and unequivocally from any provision of national law, but is only derived 
from those provisions by way of the interpretation provided in the resolution of 
the Supreme Administrative Court of 22 June 2011, No I GPS 1/11, and, 
moreover, does not refer to the reimbursement of any overpaid taxes (including 
excise duty on other excise goods) aside from the overpayment of excise duty on 
electricity, and renders it completely impossible to neutralise part of the financial 
burden associated with that duty, collected in breach of EU law. 
3.2. The company requested that the judgment under appeal be set aside in its 
entirety and that the case be referred back to the court that issued the judgment 
under appeal. 
III. Grounds for the reference for a preliminary ruling 
1. In submitting the question for a preliminary ruling, the referring court took 
into account that the national practice to date, which is based on the provisions of 
the Tax Code cited above, results in taxpayers being refused reimbursement of 
overpaid excise duty in tax proceedings, despite the fact that the tax was collected 
contrary to the applicable provisions of EU law (including, in particular, Directive 
2003/96). It should be pointed out that, despite the considerable length of time that 
has elapsed, the legal issue arising in the present case is not merely of historical 
significance; it is integral to the present proceedings, and also constitutes a 
significant problem that may arise in future cases. 
2. In order to properly understand the issue, it is necessary to recall a certain 
sequence of events. A key aspect of it is the judgment of the Court of Justice of 
12 February 2009 in case C-475/07, Commission v Poland (EU:C:2009:86), in 
which the Court declared that ‘by failing to adapt, by 1 January 2006, its system 
of electricity tax, with regard to the time at which the electricity tax becomes 
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chargeable, to the requirements of the first subparagraph of Article 21(5) of 
Council Directive 2003/96/EC of 27 October 2003 restructuring the Community 
framework for the taxation of energy products and electricity, as amended by 
Council Directive 2004/74/EC of 29 April 2004, the Republic of Poland has failed 
to fulfil its obligations under that directive’. Significantly, in that case, the Polish 
Government requested that the effects of the judgment be limited in time, arguing 
that the judgment would cause serious economic damage and could distort 
competition in the Community market. The Court pointed out that in order for 
such temporal limitation to be imposed, two more conditions would have to be 
met, namely a risk of serious economic repercussions owing in particular to the 
large number of legal relationships entered into in good faith on the basis of rules 
considered to be validly in force, and also the condition that individuals and 
national authorities had been led to adopt practices which did not comply with 
Community legislation by reason of objective, significant uncertainty regarding 
the implications of Community provisions, to which the conduct of other Member 
States or the Commission may even have contributed (paragraph 61). The Court 
held that Poland could not successfully argue that the competent national 
authorities had been led to adopt practices which did not comply with Community 
legislation by reason of objective, significant uncertainty regarding the 
implications of Community provisions. The Member State should have taken the 
necessary measures to avoid the alleged damage no later than on the date on 
which infringement proceedings were initiated against it for failure to fulfil its 
obligations due to the fact that the moment at which excise duty on electricity 
became chargeable in Poland was incompatible with Community law. In addition, 
the Member State had planned to adopt a law that would have changed the 
moment at which that duty became chargeable, but did not do so at the time 
(paragraph 62). 
3. The judgment of the Court of Justice of 12 February 2009 led to 
sophisticated reasoning expressed in resolutions of the Supreme Administrative 
Court, which are precedent-setting in the Polish legal system. […] 
Following the Court’s judgment in Case C-475/07, on 13 July 2009 a resolution of 
a panel of seven judges, No I FPS 4/09, was adopted by the Financial Chamber of 
the Supreme Administrative Court, which took the position that Article 72(1)(1) 
of the Tax Code did not preclude the reimbursement of overpaid excise duty also 
when the burden of that duty was borne by the purchaser of the taxed goods. The 
13 July 2009 resolution explicitly stated that Article 6(5) of the Law on Excise 
Duty was incompatible with Community law, and pointed to the fact that a 
Member State was prohibited from introducing into its legal order different 
moments at which the tax became chargeable or different taxpayers than those 
listed in Article 21(5) of the Energy Directive. This meant, in effect, that energy 
sales by an entity that should not have been required to pay tax were taxed. 
Therefore, an electricity producer, in order to avoid taxation contrary to 
Article 21(5) of the Energy Directive, could directly rely on the provision of that 
directive. 
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In resolution No I FPS 4/09, the Supreme Administrative Court pointed out that 
the reimbursement of overpaid tax to a taxpayer, irrespective of whether the 
taxpayer had borne the economic burden of the tax, did not contradict the 
requirements of EU law, which in principle protects the reimbursement of sums 
unduly paid, leaving the procedure for reimbursement to national legislation. The 
Supreme Administrative Court pointed out that Community law allows for 
reimbursement to be limited in cases where the actual costs incurred in connection 
with the payment of such tax have been passed on to third parties. However, the 
court pointed out that this limitation was recognised when it resulted from national 
laws. The Supreme Administrative Court found that a literal and systemic 
interpretation of the concept of overpayment as defined in the national legislation 
does not make such overpayment dependent on who bore the burden of the tax 
and whether the entity concerned incurred a financial loss. It was clearly indicated 
that the Polish legislature had chosen not to introduce mechanisms into the Tax 
Code that would limit the reimbursement of overpayments. 
4. The above resolution did not, however, end the dispute at the Supreme 
Administrative Court as to interpretation, and the result was another resolution, 
this time adopted by an entire chamber (albeit a different one – the Commercial 
Chamber), which has a stronger binding effect. That resolution was passed with 
eight dissenting opinions as to its content or reasons (out of 21 participating 
judges). In the resolution of 21 June 2011, No I GPS 1/11, the view was expressed 
that within the meaning of Article 72(1)(1) of the Tax Code, the amount of excise 
duty paid on the sale of electricity does not constitute an overpayment in a 
situation where the entity which paid the duty did not incur any financial loss as a 
result. 
The adjudicating panel in case No I GPS 1/11, disagreeing with the resolution 
adopted in case No I FPS 4/09, noted that the main argument on which the earlier 
ruling relied was that the principal type of interpretation that should be applied to 
tax law is a literal interpretation, as a result of which the prerequisite for an 
overpayment to arise is the payment of tax in excess of the existing tax liability or 
in the absence of such liability, and the legislature did not stipulate further 
prerequisites concerning the reimbursement of such overpayment. 
In contrast, in case No I GPS 1/11, it was stressed that a non-linguistic 
interpretation must be applied, in particular constitutional arguments. Thus, the 
Supreme Administrative Court found that ‘there is no justification whatsoever 
under the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of 
Poland) for granting a person who has paid undue tax a legal remedy to obtain 
from the State a sum that would not serve to cover that person’s financial loss 
caused by the payment of such tax. In other words, the consequence of incorrect 
tax payment cannot be the unjust enrichment of such a person’. The court stated 
that the prerequisite for the taxpayer being protected in proceedings concerning 
the reimbursement of overpaid tax is that the taxpayer incurred a financial loss as 
a direct result of the payment of that tax. Therefore, the taxpayer’s financial loss is 
a necessary prerequisite for the existence of such a claim, which determines 
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whether it can be granted constitutional protection. The purpose of reimbursing an 
overpayment is not to deprive the State ‘at any cost’ of a benefit it unjustly 
obtained, but to compensate the taxpayer for the loss incurred. It would be 
contrary to the Constitution of the Republic of Poland to assume that under the 
Tax Code it is possible to reimburse an overpayment where the consequence 
would be the unjust enrichment of the claimant. 
5. The position adopted in resolution No I GPS 1/11 did not, however, remove 
all doubts as to interpretation that have been consistently raised by the appellant in 
this and other cases, and which are acknowledged in numerous rulings of the 
Supreme Administrative Court, namely: 
A. the condition of ‘no financial loss incurred’ was introduced solely 
through judicial practice and does not arise directly from any provision 
of national law. Resolution No I GPS 1/11 corrects the legislature, 
modifying the law in the process, which should be the exception in a 
system of statutory law. In other words, the current state of affairs is 
the result of a conscious act (omission) on the part of the legislature 
and does not constitute a legal loophole (cf., inter alia, the judgment of 
the Supreme Administrative Court of 20 March 2024, No I 
GSK 483/20); 
B. the national judicial practice of making the right to reimbursement of 
an overpayment conditional on ‘suffering a financial loss’ has been 
limited exclusively to the reimbursement of overpayment of excise 
duty on electricity paid by electricity producers in breach of EU law 
from 2006 to 2009. It does not apply to the overpayment of any other 
tax and, characteristically, with respect to other taxes, neither the law 
nor judicial practice introduce such a condition, and in fact confirm 
that no such condition exists. Therefore, the norm adopted in 
resolution No I GPS 1/11 cited above differentiates the legal situation 
of payers of a particular tax and that of payers of all other taxes. It is 
significant that the resolution of the Commercial Chamber of the 
Supreme Administrative Court of 22 June 2011, No I GPS 1/11, as a 
resolution issued in a specific case, is not applicable to Supreme 
Administrative Court judgments concerning the determination and 
reimbursement of overpayment of excise duty on beer and beer-based 
beverages or lubricating oils, as it refers exclusively to the taxation of 
electricity […]. 
The key question, then, is whether that dichotomy in national case-law conflicts 
with EU regulations and the case-law of the Court of Justice regarding the 
prohibition on making the treatment of excise overpayments dependent on the 
excise product concerned. 
6. Therefore, the question remains whether making the possibility of seeking 
reimbursement of overpayment of excise duty on electricity paid by producers in 
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breach of EU law from 2006 to 2009 conditional on ‘suffering a financial loss’ is 
not discriminatory and does not constitute an unjustified exception to the rule 
requiring the repayment of overpaid taxes. Meanwhile, in its 16 May 2013 
judgment in Case C-191/12, Alakor Gabonatermelő és Forgalmazó 
(EU:C:2013:315), the Court of Justice indicated that ‘in the absence of EU rules 
governing claims for the repayment of taxes, it is for the domestic legal system of 
each Member State to lay down the conditions under which those claims may be 
made; subject, nevertheless, to observance of the principles of equivalence and 
effectiveness (Danfoss and Sauer-Danfoss, paragraph 24 and the case-law cited)’ 
(paragraph 26). The appellant expressly argues that the procedural rule, reflecting 
judicial practice rather than the will of the legislature, which makes the right to 
reimbursement of overpayment conditional on ‘suffering a financial loss’ only 
applies to the reimbursement of overpayment of excise duty on electricity; 
moreover, with respect to other taxes, neither the law nor judicial practice 
introduce such a condition, and in fact expressly state that no such condition 
exists. 
As regards the overpayment reimbursement mechanism stipulated in the Tax 
Code, it seems reasonable to ask whether, without taking into account the 
economic context, any difference between what the obliged party actually paid 
and what it should have paid can be considered an overpayment. Meanwhile, the 
interpretation of Article 72(1)(1) and Article 73(2)(2) of the Tax Code does not 
provide any basis for claiming that an authority may refuse to recognise an 
overpayment of excise duty because the burden of the tax has been borne by the 
purchaser of the taxed goods. 
In the opinion of the referring court, the doubt as to interpretation is justified in so 
far as, from the point of view of a particular business plan and free market rules, 
one should not forget that the cost of electricity between 2006 and 2009 would 
probably have been different if it had not been subject to excise duty, and thus it 
cannot be ruled out that the profit of the appellant company would have been 
higher; as a result, the financial loss incurred may belong precisely to that 
economic category. Resolution No I GPS 1/11 and other Polish administrative 
court judgments issued in line with its binding nature ignore that economic aspect. 
Illustrative in this context is the judgment of the Court of Justice of 21 March 
2024, C-606/22, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility 
of adjustment in the case of incorrect rate) (EU:C:2024:255), in which the Court 
found that the absence of financial loss does not necessarily deprive the taxable 
person of a right to a refund, from the tax authorities of the Member State 
concerned, of all or part of the excess VAT which that person wrongly collected 
from end consumers and paid to those authorities. That is the case in particular 
where that taxable person incurred, as a result of the application of an incorrect 
VAT rate, a fall in the volume of his or her sales (paragraph 28). In other words, it 
is not necessarily the corollary of the VAT being passed on in full to the final 
consumer that there is no financial loss or disadvantage, since, even in that 
situation, the trader may have incurred a loss as a result of a fall in the volume of 
his or her sales (judgment of 10 April 2008, Marks & Spencer, C-309/06, 
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EU:C:2008:211, paragraph 56). The Court further found that ‘therefore, it is on 
condition that the economic burden that the tax levied though not due imposed on 
the taxable person has been completely neutralised that a Member State may 
refuse to refund excess VAT that has been unlawfully applied, on the ground that 
such repayment would give rise to unjust enrichment for the benefit of the taxable 
person (see, to that effect, the judgment of 16 May 2013, Alakor Gabonatermelő 
és Forgalmazó, C-191/12, EU:C:2013:315, paragraph 28), which it will be for the 
referring court to ascertain’ (paragraph 37). 
According to the referring court, the question remains whether a factual finding 
can be made at present that would be limited to establishing that the taxpayer did 
not incur a financial loss as a result of paying the tax, but without making 
reference to the losses incurred by the taxpayer due to a reduction in sales or an 
increase in the price of the product precisely due to the charging of excise duty. In 
the view of the referring court, it is not sufficient simply to indicate the indirect 
nature of the tax and enigmatically state that its economic burden has been shifted 
to the consumer. It appears that it will be necessary to conduct an economic 
analysis, set standards for that analysis, and determine who is to conduct it and on 
the basis of what criteria. Undoubtedly, in order to conduct a legal assessment of 
the issue, a proper interpretation of such EU principles as the principle of 
equivalence and the principle of effectiveness is necessary. 
7. The Supreme Administrative Court notes that the question referred has 
gained prominence following the judgment of the Court of Justice of 8 June 2023 
in C-322/22, Dyrektor Izby Administracji Skarbowej we Wrocławiu 
(EU:C:2023:460), which opened the way to claim due compensation from the 
Polish State for sums levied in breach of EU law. In that judgment, the Court 
questioned not only the 30-day deadline provided for in the abovementioned 
provision of the Tax Code, which is calculated from the date of publication of the 
Court judgment, for filing an application in order to obtain full interest, but also 
the emerging case-law of the Polish administrative courts, which modifies the 
legislation in force by postponing the expiry of the deadline for filing that 
application until the 30th day from the date on which tax was collected. 
8. The request for a preliminary ruling concerns the interpretation of the 
principles of EU law, in particular the principles of equivalence and effectiveness, 
in the context of a taxpayer’s right to reimbursement from a Member State of a tax 
collected in breach of EU law, which right is challenged by a resolution of a 
national court that is binding on other courts of a lower or equivalent level. […] 
[…]