Opinion of the Advocate General — ECLI:EU:C:2024:609
Date: 2024-07-11
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-18/23 – 1 
Case C-18/23 
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: 
18 January 2023 
Referring court: 
Wojewódzki Sąd Administracyjny w Gliwicach (Poland) 
Date of the decision to refer: 
28 November 2022 
Applicant: 
F S.A. 
Defendant: 
Dyrektor Krajowej Informacji Skarbowej 
  
Subject matter of the main proceedings 
Coverage of an undertaking for collective investment by an exemption from 
cooperation tax. Satisfaction for that purpose of the condition relating to 
management by an external agency. 
Subject matter and legal basis of the request 
Compatibility with Directive 2009/65 and the TFEU of the requirement for 
undertakings for collective investment to be managed by an external agency laid 
down for the purposes of tax exemption. 
Question referred for a preliminary ruling 
Must the provisions of Directive 2009/65/EC of the European Parliament and of 
the Council of 13 July 2009 on the coordination of laws, regulations and 
administrative provisions relating to undertakings for collective investment in 
transferable securities (UCITS) …, and in particular Article 29(1) thereof, in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-18/23 
 
2  
conjunction with Articles 18, 49 and 63 of the Treaty on the Functioning of the 
European Union …, be interpreted a precluding the laying down in national 
legislation of formal requirements, such as in the main proceedings, for taking 
advantage of exemptions from corporation tax by undertakings for collective 
investment whose registered office is in a Member State of the European Union 
other than the Republic of Poland, or in another State in the European Economic 
Area, that is to say from the requirement that they be managed by persons who 
have, for the pursuit of their activity, the authorisation of the competent financial 
market supervisory authorities of the State in which the registered office of those 
undertakings is situated? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union (‘TFEU’): Articles 18, 49, and 
63(1),  
Directive 2009/65/EC of the European Parliament and of the Council of 13 July 
2009 on the coordination of laws, regulations and administrative provisions 
relating to undertakings for collective investment in transferable securities 
(UCITS) (‘the UCITS Directive’): Articles 2(1)(b) and (s), 5(2), (4) and (6), and 
29(1) to (3). 
Provisions of national law relied on 
Ustawa z dnia 15 lutego 1992 r. o podatku dochodowym od osób prawnych (Law 
of 15 February 1992 on corporation tax (‘Law on corporation tax’): 
Articles 6(1)(10) and (10a) and 17(1)(58),  
Ustawa z dnia 27 maja 2004 r. o funduszach inwestycyjnych i zarządzaniu 
alternatywnymi funduszami inwestycyjnymi (Law of 27 May 2004 on investment 
funds and the management of alternative investment funds) (‘Law on investment 
funds’): Articles 1, 1a(1), 2(3a), (9), (10) to (10c), 3, 4(1) and (1a), and 14(1). 
Succinct presentation of the facts and procedure in the main proceedings 
1 In the application which it submitted, the company F S.A. […] from L. (‘the 
Fund’) requested an interpretation of tax law in an individual case. That request 
concerned the determination of whether the envisaged income received by the 
Fund benefits from the exemption laid down in Article 17(1)(58) of the Law on 
corporation tax. 
2 That company stated that it had acquired the status of a specialised investment 
fund, which, with the approval of the Luxembourg Financial Sector Supervisory 
Commission (Commission de Surveillance du Secteur Financier; ‘the CSSF’) may 
invest in shares of companies listed on stock exchanges, including the Warsaw 
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
3 
Stock Exchange, in bonds issued by capital companies, including those with their 
registered offices in the territory of the Republic of Poland (‘Poland’) and treasury 
bonds, including those issued by Poland. The Fund operates in the form of a 
commercial company governed by Luxembourg law having legal personality, 
which was incorporated as a société anonyme (public limited company), and 
operates under the Luxembourg law of 13 February 2007 on specialised 
investment funds. The Fund is resident for tax purposes in Luxembourg and is 
subject to unlimited tax liability there. 
3 The Fund’s legal status was laid down in its founding documents which were 
approved by the CSSF. Under the Fund’s articles of association, it is to be 
managed internally, by its board of directors. The Fund has been authorised to 
operate by the CSSF and is subject to direct supervision by the CSSF. The Fund 
has been entered by the CSSF on the list of regulated investment funds. The Fund, 
and more specifically the Fund’s board of directors, is also registered as an 
alternative fund manager and entered on the list of alternative investment fund 
managers maintained by the CSSF, and thus the Fund is also subject to Directive 
2011/61/EU of the European Parliament and of the Council of 8 June 2011 on 
Alternative Investment Fund Managers and amending Directives 2003/41/EC and 
2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 
(‘Directive 2011/61’). 
4 The sole object of the Fund’s business is the collective investment in transferable 
securities, money market instruments and other property rights of financial 
resources raised from the public by means of private invitation to purchase shares 
in the Fund. 
5 The Fund considers that in the factual situation set out the income received by the 
Fund benefits from the exemption laid down in Article 17(1)(58) of the Law on 
corporation tax. 
6 The Dyrektor Krajowej Informacji Skarbowej (Director of the National Tax 
Information Bureau; ‘the interpreting authority’) disagreed with that position and 
stated that the Fund’s position as set out in the request for an individual 
interpretation of tax law was incorrect. 
7 The Fund brought an action before the Wojewódzki Sąd Administracyjny w 
Gliwicach (Regional Administrative Court, Gliwice) seeking annulment of the 
contested individual interpretation. 
8 The court of first instance decided to refer to the Court of Justice of the European 
Union (‘Court of Justice’) the question set out in the operative part of the order 
and stayed proceedings in the case. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-18/23 
 
4  
The essential arguments of the parties in the main proceedings 
9 The Fund considers that in the circumstances set out the income received by the 
fund benefits from the exemption laid down in Article 17(1)(58) of the Law on 
corporation tax. It satisfies the requirements arising from Article 6(1)(10a)(a) and 
(d) to (e) of that law. However, as regards satisfaction of the requirements laid 
down in Article 6(1)(10a)(f) of that law, that is to say being managed by persons 
who have, for the pursuit of their activity, the authorisation of the competent 
financial market supervisory authorities of the State in which the registered office 
of those undertakings is situated, it stated that, when interpreting Article 17(1)(58) 
of the Law on corporation tax in conformity with Articles 18 and 63(1) TFEU and 
the UCITS Directive, the internally managed Fund, as an alternative investment 
fund manager (‘registered AIFM’), satisfies the conditions for benefiting from the 
exemption from corporate income tax under Article 17(1)(58) Law on corporation 
tax and, therefore, in the circumstances set out the income received by the Fund 
will, in its view, benefit from the exemption laid down in that provision. 
10 The Director of the National Tax Information Bureau (‘the interpreting authority’) 
disagreed with that position. In the view of that authority, the Fund does not 
satisfy the requirement set out in Article 6(1)(10a)(f) of that law since it is not 
managed by an external agency, which is the requirement laid down in the law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 The essence of the dispute pending before the referring court concerns whether, 
where the applicant Fund is managed internally – by the Fund’s board of directors, 
which has been authorised by the CSSF (the competent authority of the Fund’s 
Member State) to manage the Fund and is registered by the CSSF as a registered 
alternative investment fund manager and included in the list of managers 
maintained by the CSSF – the Fund may be deemed to satisfy the condition laid 
down in Article 6(1)(10a)(f) of the Law on corporation tax. 
12 It should be noted that the introduction of Article 6(1)(10a)(a) to (e) of the Law on 
corporation tax into the Polish legal order resulted from the Government of the 
Republic of Poland complying with the European Commission’s requests in the 
proceedings to remedy infringement No 2006/4093. In those proceedings, the 
Polish legislature, pursuant to an amending law, introduced, inter alia, 
amendments to Article 6(1)(10a)(a) to (e) of the Law on corporation tax. At the 
same time, it introduced the requirement laid down Article 6(1)(10a)(f), under 
which, subject to paragraph 4 undertakings for collective investment whose 
registered office is in a Member State of the European Union other than the 
Republic of Poland, or in another State in the European Economic Area, must, 
among other conditions, be managed by persons who have, for the pursuit of their 
activity, the authorisation of the competent financial market supervisory 
authorities of the State in which the registered office of those undertakings is 
situated.  
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
5 
13 When introducing the exemption for foreign investment funds at issue into the 
Polish legal order (Article 6(1)(10a) of the Law on corporation tax), the Polish 
legislature was guided by the assumption that the proposed conditions defining the 
scope of the exemption were laid down in such a way that persons equivalent to 
Polish investment funds and Polish pension funds were covered by the exemption 
That approach was primarily intended to ensure implementation of the 
constitutional principle of equality of taxpayers before the law and of the general 
application of tax. It was also intended to eliminate unequal treatment of persons 
operating under comparable conditions. The ratio legis of the measures introduced 
was therefore to ensure equal treatment of Polish and European investment funds 
with regard to exemption from corporate income tax. The explanatory 
memorandum to the draft amendment also shows that the measures which were 
proposed and subsequently adopted are consistent with EU law.  
14 On 24 January 2013, the European Commission closed the abovementioned case 
without referring it to the Court of Justice of the European Union (‘Court of 
Justice’). Thus, in the light of the above proceedings, the condition laid down in 
Article 6(1)(10a)(f) of the Law on corporation tax can be assumed to be consistent 
with EU law, including Articles 49 and 63 TFEU. Those provisions formed the 
basis for the proceedings which the European Commission brought against Poland 
and at the same time the changes introduced were made by a single law – the 
amending law which was to implement the recommendations arising from the 
Commission’s opinion, as is evident from the explanatory memorandum to that 
draft law. That view may be supported by the assumption that Poland exercised 
the right arising from recital 15 of the UCITS Directive, which enables a Member 
State to establish rules stricter than those laid down in that directive. 
15 It should be noted, however, that under the model adopted in Poland, investment 
funds are managed by a legal person separate from them, that is to say an 
investment fund company, as is apparent from both Article 4(1) and Article 14(1) 
of the Law on investment funds. The body of a legal person is therefore a different 
legal person. Such a measure is consistent with the UCITS Directive, that is to say 
Article 6, which allows a management company to be established. This means 
that, in the Polish legal system, the investment fund and the fund manager are 
linked by a legal relationship of a different kind than in the case of a SICAV and 
its internal management. The board of directors is not a separate legal person. At 
the same time, under the Law on investment funds, which governs activity in the 
territory of the Republic of Poland, including the activity of foreign undertakings 
for collective investment, measures have been adopted under which only 
externally managed institutions may operate in that territory. 
16 Article 2(10c) of the Law on investment funds relied on has been in force since 
4 May 2016 as a result of the entry into force of the law amending the Law on 
investment funds. It is apparent from the explanatory memorandum to that law 
that the law amending the Law on investment funds was intended to implement 
the UCITS Directive in so far as it concerns UCITS fund managers and managers 
of alternative investment funds (‘AIFs’) and Directive 2011/61. The first sentence 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-18/23 
 
6  
of recital 20 of that directive indicates that, depending on their legal form, it 
should be possible for AIFs to be managed externally or internally. An AIF should 
be regarded as managed internally where the management functions are performed 
by the management body or any other internal structure of the AIF. Where the 
legal form of the AIF permits internal management and the AIF’s management 
body does not appoint an external AIFM (AIF manager), the AIF is identical to 
the AIFM and should therefore satisfy all requirements for AIFMs under that 
directive and be authorised as an AIFM.  
17 It should be noted that the European Commission conducted formal proceedings 
regarding transposition into the Polish legal system of, inter alia, that directive, 
and the failure urgently to adopt those provisions could have resulted in the 
Commission referring the matter to the Court of Justice of the European Union. 
The Commission’s proceedings were carried out under No INFR(2013)0318 and 
were concluded on 25 January 2018 without the matter being referred to the Court 
of Justice. Thus, the introduction of Article 2(10c) of the Law on investment 
funds, which is consistent with Article 6(1)(10a)(f) of the Law on corporation tax, 
regarding the management of an undertaking for collective investment by an 
external agency, has also been assessed by the European Commission. 
18 In spite of the abovementioned legislative and monitoring activities, the referring 
court is uncertain whether it is possible to accept a priori the finding that the 
national legislation is consistent with the directive. The case-law of the Court of 
Justice states that although direct taxation falls within the competence of the 
Member States, those States must exercise that competence consistently with EU 
law. In addition, it states that national legislation intended to apply only to those 
shareholdings which enable the holder to exert a definite influence on a 
company’s decisions and to determine its activities falls within the scope of 
Article 49 TFEU on freedom of establishment. On the other hand, national 
provisions which are to apply to shareholdings acquired solely with the intention 
of making a financial investment without any intention to influence the 
management and control of the undertaking must be examined exclusively in light 
of the free movement of capital. 
19 It should be noted that the legislation at issue in the main proceedings is aimed at 
the tax treatment of income derived from investments made by undertakings for 
collective investment. Thus, in the light of the case-law of the Court of Justice, 
any restrictions on the freedom of establishment are unavoidable consequences of 
the restriction on the free movement of capital and therefore do not justify a 
separate analysis of that legislation in the light of Article 49 TFEU. 
20 It follows from the case-law of the Court of Justice that the measures prohibited 
by Article 63(1) TFEU as restrictions on the movement of capital include those 
that are such as to discourage non-residents from making investments in a 
Member State or to discourage that Member State’s residents from doing so in 
other States. The exemption of income received by a resident collective 
investment undertaking, whereas income received by a non-resident collective 
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
7 
investment undertaking is subject to a definitive withholding tax, constitutes such 
less favourable treatment. It also follows from the case-law of the Court of Justice 
that even a differentiation based on objective criteria may de facto place cross-
border situations at a disadvantage. 
21 Article 6(1)(10a)(f) of the Law on corporation tax, in conjunction with 
Article 17(1)(58) thereof, introduces an objective criterion which leads to 
differentiation between undertakings for collective investment in a cross-border 
context by conferring an exemption on such institutions only where they are 
managed by external agencies authorised by the competent authorities. In other 
words, an undertaking for collective investment established under Article 6 of the 
UCITS Directive from another Member State may benefit from the above 
exemption, whereas in the case of a fund established in a different manner 
(managed internally) no such exemption is granted. 
22 It should be noted that under Article 6 of the UCITS Directive it is possible but 
not obligatory to establish a management company. This provision of Article 6 of 
the UCITS Directive takes account of Article 29(1) of the UCITS Directive. That 
provision allows the competent authorities of a Member State also to authorise an 
investment company that has not designated a management company. 
23 As is clear from the preamble thereto, under the UCITS Directive national laws 
governing collective investment undertakings should be coordinated with a view 
to approximating the conditions of competition between those undertakings at 
Community level, while at the same time ensuring more effective and more 
uniform protection for unit-holders. Such coordination facilitates the removal of 
the restrictions on the free movement of units of UCITS in the Community, whilst 
ensuring greater protection for investors. 
24 It follows from the UCITS Directive that undertakings for collective investment 
established in accordance with requirements of that directive should be regarded 
as comparable. In this regard, it is irrelevant, in the view of the referring court, 
that a Member State is able to establish rules stricter than those laid down in the 
directive, in particular as regards authorisation conditions, prudential requirements 
and the rules on reporting and the prospectus since that power does not alter the 
basic principles and guidelines aimed at harmonising national legislation 
governing undertakings for collective investment. 
25 In the light of the foregoing, Article 6(1)(10a)(f) of the Law on corporation tax 
must be regarded as contrary to the UCITS Directive, in particular Article 29(1) 
thereof, in conjunction with Articles 18, 49 and 63(1) TFEU. In formulating this 
view, it should be mentioned that in the proceedings which it conducted the 
European Commission did not assess Article 6(1)(10a)(f) of the Law on 
corporation tax in the context of Article 18 TFEU. 
26 The foregoing means that the issue which arose in the main proceedings concerns 
the assessment whether the national legislature, guided by the principle of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-18/23 
 
8  
comparability of national and foreign persons, may introduce a formal condition 
(sine qua non) for a tax exemption, such as in the main proceedings, that is to say 
the requirement that the investment fund and the entity for collective investment 
be managed by an external agency and which is laid down as an element of 
investment risk limitation, having regard to the provisions of the UCITS 
Directive, in particular Article 29(1) thereof, and the prohibition on discrimination 
arising from Articles 18, 49 and 63 TFEU. 
27 In the view of the referring court, in a case such as that in the main proceedings, 
an interpretation in conformity with EU law would have effects contra legem 
which cannot be reconciled with the limits of the interpretation which that court 
can apply. A textual interpretation indicates the person referred to in 
Article 6(1)(10a)(f) of the Law on corporation tax is an external agency. An 
internal body of an undertaking for collective investment, such as the board of 
directors, cannot be regarded as such an agency, irrespective of the circumstances 
in which it has been authorised by the competent authority. 
28 The practice of national authorities is based on precisely the wording of 
Article 6(1)(10a)(f) of the Law on corporation tax. This means that no authority 
can refuse to apply it. The consequence of the foregoing is that a person, such as 
the person in the main proceedings, must always seek judicial protection. 
29 Crucially, the practice of interpreting Article 6(1)(10a)(f) of the Law on 
corporation tax in the context of the abovementioned EU legislation, carried out 
by administrative courts, is also not uniform. Some administrative courts state that 
the condition for exemption laid down in the above provisions of the Law on 
corporation tax does not discriminate against persons whose registered office is in 
a State in the European Union and the European Economic Area. 
30 On the other hand, judgments of the Naczelny Sąd Administracyjny (Supreme 
Administrative Court) have ruled that foreign investment funds do not have to be 
managed by an external agency in order to benefit from the tax exemption. 
31 In that regard, the referring court is inclined to the view that the provisions of the 
UCITS Directive, and in particular Article 29(1) thereof, in conjunction with 
Articles 18, 49 and 63 TFEU, must be interpreted a precluding the laying down in 
national legislation of formal requirements (sine qua non), such as in the main 
proceedings, for taking advantage of exemptions from corporation tax by 
undertakings for collective investment whose registered office is in a Member 
State of the European Union other than the Republic of Poland, or in another State 
in the European Economic Area, that is to say from the requirement that they be 
managed by persons who have, for the pursuit of their activity, the authorisation 
of the competent financial market supervisory authorities of the State in which the 
registered office of those undertakings is situated.