Judgment;Summary — ECLI:EU:C:2023:460
Date: 2023-06-08
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-322/22 – 1 
Case C-322/22 
Request for a preliminary ruling 
Date lodged: 
12 May 2022 
Referring court: 
Naczelny Sąd Administracyjny (Poland) 
Date of the decision to refer: 
15 March 2022 
Appellant: 
E. with its registered office in the United States of America 
Respondent: 
Dyrektor Izby Administracji Skarbowej we Wrocławiu 
  
ORDER 
15 March 2022 
The Naczelny Sąd Administracyjny (Supreme Administrative Court) […] 
[…] 
[composition of the court] 
having examined on 1 March 2022 
at a hearing before the Izba Finansowa (Finance Chamber) 
the appeal on a point of law brought by E. with its registered office in the 
United States of America 
against the judgment of the Wojewódzki Sąd Administracyjny we Wrocławiu 
(Regional Administrative Court, Wrocław) 
of 13 March 2019, file ref. […] 
EN 
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in the case brought by E. with its registered office in the United States of 
America 
against the decision of the Dyrektor Izby Administracji Skarbowej we 
Wrocławiu (Director of the Tax Administration Chamber, Wrocław) 
of 6 August 2018, No … 
regarding interest on the overpayment of flat-rate corporation tax from 2012 
to 2014 
hereby: 
(1) […] 
(2) refers the following question to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 [TFEU]: 
Do the principles of effectiveness, sincere cooperation and equivalence 
expressed in Article 4(3) of the Treaty on European Union (consolidated 
version – OJ 2012 C 326, p. 13), or any other relevant principle laid down in 
EU law, preclude a provision of national law such as Article 78 § 5(1) and (2) 
of the ustawa z 29 sierpnia 1997 r. Ordynacja podatkowa (Law of 29 August 
1997 establishing the Tax Code) (consolidated text: Dz. U. of 2012, item 749, 
as amended), which provides that interest on overpaid tax which is collected 
by a paying agent in a manner not consistent with EU law is not due to the 
taxable person for the period after the expiry of 30 days from the date of 
publication in the Official Journal of the judgment of the Court of Justice of 
the European Union declaring that the collection of the tax is incompatible 
with EU law, where the request for a declaration of that overpayment was 
submitted by the taxable person after that time limit and the provisions of 
national law relating to the collection of the tax continue to be incompatible 
with EU law despite the judgment of the Court of Justice of the European 
Union of 10 April 2014, [E. … (C-190/12, EU:C:2014:249)]? 
[…] 
GROUNDS 
I. Legislative framework 
European Union law 
[TEU] 
Article 4 
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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. 
National law 
1. ustawa z 15 lutego 1992 r. o podatku dochodowym od osób prawnych 
(Law of 15 February 1992 on Corporation Tax) (consolidated text: Dz. U. of 
2011, No 74, item 397, as subsequently amended) (‘the Law on Corporation 
Tax’) 
Article 22. 
1. Taxation of dividends and other income constituting participation in the profits 
of legal persons whose registered office or central management is situated in the 
Republic of Poland is set at 19% of income received. …  
Article 26. 
1. Legal persons, organisational units without legal personality and natural 
persons who are undertakings who make payments of amounts due on the grounds 
referred to in Article 21(1) and Article 22(1) shall be obliged, as paying agents, to 
collect, subject to paragraphs 2 and 2b, on the date on which payment is made, 
flat-rate corporation tax on such payments, having regard to the deductions 
provided for in Article 22(1a) to (1e). 
… 
3. The paying agents referred to in paragraph 1 shall transfer the amounts of tax 
concerned, by the seventh day of the month following the month in which the tax 
was collected pursuant to paragraph 1 and paragraphs 2 to 2b, to the account of 
the tax office managed by the head of the tax office which is competent in 
accordance with the registered office of the taxable person concerned … Paying 
agents are required to send: 
(1) to the taxable persons referred to in Article 3(1) – information regarding the 
amount of the tax collected, 
(2) to the taxable persons referred to in Article 3(2) and to the tax office – 
information regarding the payments made and the tax collected 
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- drawn up in accordance with a standard model. … 
2. ustawa z 29 sierpnia 1997 r. Ordynacja podatkowa (Law of 29 August 
1997 establishing the Tax Code) (consolidated text: Dz. U. of 2012, 
item 749, as subsequently amended) – ‘the Tax Code’ 
Article 8. 
A paying agent is a natural person, a legal person or an organisational entity 
without legal personality who is required under tax law to calculate tax, collect tax 
from a taxable person and pay it to a tax authority in good time. 
Article 30. 
§ 1. A paying agent who fails to fulfil the obligations laid down in Article 8 shall 
be liable for any uncollected tax or tax which has been collected but not paid. 
… 
§ 3. A paying agent or payment collector shall be liable in respect of his or her 
entire assets for due payments referred to in paragraph 1 or 2. 
§ 4. Where, in the course of tax proceedings, a tax authority establishes a 
circumstance referred to in paragraph 1 or 2, it shall give a decision on the tax 
liability of the paying agent or payment collector in which it shall determine the 
amount due by way of tax which has not been collected or which has been 
collected but not paid. 
… 
Article 72. 
§ 1. The following shall be regarded as overpayment: 
… 
(2) tax collected by the paying agent either unduly or in an amount greater than 
that due; 
… 
Article 73. 
§ 1. Subject to paragraph 2, an overpayment shall arise on the date on which: 
… 
(2) the paying agent collects either tax not due or tax in an amount greater than 
that due; 
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… 
Article 74. 
If an overpayment arises as a result of a ruling of the Trybunał Konstytucyjny 
(Constitutional Court) or a ruling of the Court of Justice of the European Union, 
and the taxable person, whose tax liability arises in a manner provided for in 
Article 21 § 1(1) …, 
… 
(2) was settled by the paying agent – the taxable person shall determine the 
amount of the overpayment in a request for a refund thereof, and shall submit a 
return (declaration) as referred to in Article 73 § 2(1) at the same time; 
… 
Article 75. 
§ 1. Where the taxable person challenges whether the tax was properly collected 
by the paying agent or the amount of the tax collected, he or she may submit a 
request for a declaration of overpayment. 
… 
Article 77. 
§ 1. Overpayment shall be refunded within: 
… 
(4) 30 days from the date on which the request referred to in Article 74 was 
submitted; 
… 
Article 78. 
§ 1. Overpayments shall be subject to interest equal to the default interest charged 
on tax arrears, subject to paragraph 2. 
… 
§ 5. In the case provided for in Article 77 § 1(4) interest shall be due for the 
period: 
(1) from the date on which the overpayment arose until the date on which it is 
refunded – provided that the taxable person submits a request for a refund of the 
overpayment within 30 days from the date on which the ruling of the Trybunał 
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Konstytucyjny entered into force or the operative part of the ruling of the Court of 
Justice of the European Union was published in the Official Journal of the 
European Union or from the date on which the legislative act was repealed or 
amended in whole or in part;  
(2) from the date on which the overpayment arose until 30 days from the date on 
which the ruling of the Trybunał Konstytucyjny entered into force or the operative 
part of the ruling of the Court of Justice of the European Union was published in 
the Official Journal of the European Union, or from the date on which the 
legislative act was repealed or amended in full or in part, if the request for a 
refund of the overpayment was submitted more than 30 days after the ruling of the 
Trybunał Konstytucyjny entered into force or the operative part of the ruling of 
the Court of Justice of the European Union was published in the Official Journal 
of the European Union, or from the date on which that act was repealed or 
amended in full or in part. 
3. Convention between the Government of the Polish People’s Republic 
and the Government of the United States of America for the avoidance of 
double taxation and the prevention of fiscal evasion with respect to taxes on 
income, signed in Washington on 8 October 1974 (Dz. U. of 1976, No 31, 
item 178) – ‘the Double Taxation Convention’ 
Article 23 Exchange of information. 
1. The competent authorities shall exchange such information as is necessary for 
carrying out the provisions of this Convention or for the prevention of fraud or for 
the administration of statutory provisions concerning taxes to which this 
Convention applies, provided the information is of a class that can be obtained 
under the laws and administrative practices of each Contracting State with respect 
to its own taxes. 
… 
II. Facts 
1 Proceedings before the tax authorities 
By letter of 28 December 2017, E. … with its registered office in the United 
States of America (‘the Fund’) submitted to the Head … of the Tax Office in W. a 
request for a declaration of overpayment plus interest from the date on which the 
tax was collected until the date on which the overpayment of flat-rate corporation 
tax in the amount of 489 960 Polish zlotys (PLN) in respect of the period from 
2012 to 2014 was refunded. That party derived the right […] to have the unduly 
collected tax refunded plus the interest stated above from the case-law of the 
Court of Justice of the European Union (‘the Court of Justice’). In its view, the 
overpayment arose as a result of the ruling of the Court of Justice of 10 April 2014 
in Case C-190/12, E.…. 
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The party’s request relating to overpayment was granted by separate decisions of 
2 March 2018. The overpayment was refunded on 28 March 2018, that is to say, 
within 30 days of the date on which the decision was issued. 
By decision of 24 April 2018, the tax authority refused payment of interest on the 
above overpayments. In its grounds, it stated that those overpayments had been 
refunded within the time limits arising from Article 78 § 3(3)(a) and (b) of the Tax 
Code, and the conditions set out in Article 78 § 3 of that code had also not been 
met. The procedure set out in Article 74 of the Tax Code does not apply in the 
case of a declaration of overpayment since the ruling of the Court of Justice did 
not concern the provision constituting the basis for determining the tax liability. 
By decision of 6 August 2018, the Director of the Tax Administration Chamber, 
Wrocław, annulled the ruling of the authority of first instance and confirmed 
payment of interest on the overpayments which arose in 2012 and 2013 in respect 
of the period from the date on which they arose until 30 days from the date on 
which the operative part of the ruling of the Court of Justice of 10 April 2014 in 
Case C-190/12, E. …, was published in the Official Journal of the European 
Union, and refused to grant payment of interest on the overpayments which arose 
in 2014. The basis for the decision was Article 78 § 5(2) of the Tax Code. Unlike 
the authority of first instance, he found that the overpayment arose as a result of 
the judgment of the Court of Justice in Case C-190/12. The appellant submitted a 
request for [a declaration of] overpayment on 2 January 2018 (the date on which 
the authority received the request), whilst the ruling of the Court of Justice in Case 
C-190/12 was published in the Official Journal of the European Union on 10 June 
2014. Thus, interest on the overpayments will be calculated only from the date on 
which the overpayment arose until 10 July 2014. As regards the appellant’s claim 
for payment of interest in the circumstances described in Article 78 § 5(1) of the 
Tax Code, the tax authority stated that this would constitute impermissible 
arbitrariness and unjustified preferential treatment of national operators. In the 
view of the tax authority, the adopted decision not only is not incompatible with 
the rulings of the Court of Justice cited by the party but is actually confirmed in 
those judgments. Nowhere do they require payments of interest on amounts 
withheld by the State which are the most favourable – in that they are 
unconditional – they merely require compensation by the State for the period 
during which the taxable person was unable to apply for a tax refund. 
2 Proceedings before the administrative courts 
2.1. Proceedings before the court of first instance 
By judgment of 13 March 2019 […], the Wojewódzki Sąd Administracyjny we 
Wrocławiu dismissed the action brought against the abovementioned decision. It 
shared the authority’s position that with regard to the overpayments in respect of 
2012 and 2013 interest should be granted only for the period indicated in 
Article 78 § 5(2) of the Tax Code. With regard to the overpayment in respect of 
2014, the judgment of the Court of Justice provided a basis for the paying agent to 
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waive collection of the above tax. The rulings of the Court of Justice constitute an 
element of the legal order of the Member State and the guidance contained therein 
must therefore be applied by the competent bodies of State administration and the 
courts. Since a necessary condition for a declaration of overpayment of tax in the 
Polish legal order is the submission of a request for a declaration of overpayment 
(Article 75 § 1 and Article 74 of the Tax Code), the requirement for submission of 
such a request cannot be regarded as a condition which undermines the principle 
relating to the effectiveness of national implementation of EU law. The 
effectiveness of such a request is conditional on a formal declaration that national 
law is incompatible with EU law, and the possibility of submitting such a request 
arises only on the date on which that condition is satisfied. From the date on 
which such incompatibility between the above rules is formally established, the 
period during which the taxable person is deprived of the ability to dispose of the 
unduly paid tax is dependent only on the taxable person’s intention and the degree 
of care for his or her interests. The tax authority cannot refund the tax of its own 
volition. In the view of the court of first instance, the national rules do not infringe 
the principle of effectiveness. 
A dissenting opinion was expressed regarding the judgment of the court of first 
instance, in which it was stated that substantive resolution of the case required the 
prior referral of a question to the Court of Justice for a preliminary ruling on 
whether or not Article 78 § 5(1) and (2) of the Tax Code infringes EU law, and in 
particular the principle of effectiveness. 
2.2. Proceedings before the Naczelny Sąd Administracyjny 
The appellant lodged an appeal on a point of law against the judgment of the court 
of first instance in its entirety, claiming inter alia: infringement of substantive law, 
that is to say, Article 78 § 1 of the Tax Code, in conjunction with Article 73 § 
1(2), Article 78 § 3(1), Article 78 § 5(1) and Article 74 thereof, in conjunction 
with Articles 18 and 63 [TFEU], as well as Article 4(3) TEU, as a result of their 
incorrect interpretation, that is to say, actual disregard of fundamental principles 
of the European Union, in particular the principle of non-discrimination, the 
principle of the free movement of capital and the principle of sincere cooperation, 
and the arguments contained in the judgments of the Court of Justice of, inter alia, 
8 March 2001 in Joined Cases C-397/98 and C-410/98, [M. …], and of 18 April 
2013 in Case C-565/11, [M ….], which gave rise to a finding that it is correct to 
refuse a right to a refund of overpayment of tax with interest due for the entire 
period during which the taxable person was deprived of the use of capital as a 
result of the collection of tax on the basis of provisions of national law 
incompatible with EU law, and as a consequence discriminatory treatment of the 
Fund in comparison with national entities operating on similar principles to the 
Fund (in relation to which paying agents are not required to collect flat-rate 
corporation tax), while the correct interpretation of the abovementioned provisions 
in conformity with EU law should lead to a finding that the Fund has the right to a 
refund of the overpayment with interest for the entire abovementioned period (that 
is to say, from the date on which the tax was collected until the date on which it 
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was actually refunded), which would make it possible to ensure the full 
effectiveness of EU law and the arguments contained in the judgments of the 
Court of Justice. 
The appellant claimed that the judgment under appeal should be set aside in its 
entirety and the appeal should be considered and upheld or, in the alternative, that 
the judgment under appeal should be set aside in its entirety, the case should be 
referred back [to the court of first instance], and it should be awarded the costs of 
the proceedings in the appeal on a point of law, including lawyers’ fees. 
The authority contended that the appeal on a point of law should be dismissed and 
that it should be awarded the costs of the proceedings. 
III. Reasons for the request for a preliminary ruling 
The dispute in the present case concerns the period of and entitlement to interest 
on the overpayment of tax which arose as a result of the incompatibility of 
national law with EU law, as confirmed by the Court of Justice in its judgment of 
10 April 2014 in Case C-190/12[, E. …] (EU:C:2014:249, OJ 2014 C 175, p. 5) 
concerning the taxation of dividends paid by companies resident in Poland for tax 
purposes to investment funds situated in states other than Member States of the 
European Union or states in the European Economic Area. 
National law subsequent to the above judgment of the Court of Justice has not 
been amended to date. As a rule, requests for a declaration of overpayment are 
currently granted by the tax authorities. The problem, however, concerns the 
interest on overpayments, particularly where the tax was collected more than 
30 days after the date of publication of the above judgment of the Court of Justice. 
As in this case, the tax authorities, referring to the national law, refuse to pay 
interest for the entire period during which the taxable person was unable to 
dispose of the funds collected by way of undue tax. Interest is granted from the 
date of collection of the tax until 30 days from publication of the judgment, if the 
request for a declaration of overpayment was submitted 30 days after publication 
of the judgment, or not granted, if the tax was collected more than 30 days after 
the date of publication of the judgment of the Court of Justice. The resolution of 
the case by the referring court therefore requires, firstly, an answer from the Court 
of Justice as to whether national rules which limit the period in respect of which 
interest is due on an overpayment resulting from its ruling are, where the national 
legislature fails to bring national rules into line with EU rules, compatible with the 
principles of effectiveness, sincere cooperation and equivalence expressed in 
Article 4(3) TEU, or any other relevant principle laid down in EU law. 
The rule laid down in national law as regards corporation tax is that the taxable 
person is required to calculate, declare and pay the tax (Article 27(1) of the Law 
on Corporation Tax). The deduction of tax at source in relation to dividends, 
including those paid to non-residents, inter alia, is an exception to this rule. 
Calculation and collection of the tax on the dividend is the responsibility of the 
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paying agent, which is the entity paying that dividend (first sentence of 
Article 26(1) of the Law on Corporation Tax). The paying agent, who is liable in 
respect of his or her entire assets for failure to meet that requirement (Article 30 § 
1 of the Tax Code), does not have powers which allow him or her to conduct an 
investigation of the conditions for tax exemption and cannot obtain information 
from the competent authorities of the taxable person’s State of residence. Such 
information can be obtained only by the State authorities (Article 23 of the Double 
Taxation Convention). Therefore, under national law the paying agent collects the 
tax and remits it to the competent tax authority. The taxable person cannot 
effectively prevent this even if collection is effected after publication of the ruling 
of the Court of Justice. Recovery of unduly collected tax is possible only by 
submitting a request for a declaration of overpayment. 
According to the case-law of the Court of Justice, the Member States retain 
procedural autonomy as regards the reimbursement of unduly collected taxes, 
subject to observance of the principles of equivalence and effectiveness 
(judgments of 20 December 2017, Caterpillar Financial Services, C-500/16, 
EU:C:2017:996, paragraphs 36 and 37, and of 8 September 2011, Q. and B., 
C-89/10 and C-96/10, EU:C:2011:555, paragraph 34). In Polish law the need to 
submit a request for a declaration of overpayment is provided for in all cases of 
the collection of undue tax by a paying agent (Article 75 § 1 of the Tax Code), 
irrespective of the reason why the overpayment arose. 
National law lays down time limits for the refund of overpayments and, under 
Article 78 § 1 of the Tax Code, provides for compensation for depriving a taxable 
person of the possibility of using unduly collected funds in the form of interest on 
overpayment. The list of cases in which interest is due is exhaustive. The law also 
specifies the period in respect of which interest is due. The overpayments which 
arose as a result of the ruling of the Court of Justice are covered by Article 78 § 
5(1) and (2) of the Tax Code. The above provision also governs interest on 
overpayments arising as a result of a ruling of the Trybunał Konstytucyjny and as 
a result of the repeal or amendment in full or in part of a legislative act. When an 
overpayment arises as a result of a ruling of the Court of Justice, three situations 
may arise: 
(a) an application for a declaration of overpayment has been submitted within 
30 days of the publication of the judgment of the Court of Justice; interest will be 
due from the date on which the overpayment was collected until the date on which 
it is refunded; 
(b) an application for a declaration of overpayment has been submitted more 
than 30 days after the publication of the judgment of the Court of Justice, but the 
overpayment arose within 30 days of publication of the judgment; interest will be 
due from the date of collection until 30 days after the date of publication of the 
judgment of the Court of Justice; that is the situation in this case with regard to the 
overpayments relating to 2012 and 2013. 
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(c) an application for a declaration of overpayment has been submitted and the 
overpayment arose more than 30 days after the publication of the judgment of the 
Court of Justice; interest either will not be due or may be paid on account of the 
failure to issue a timely decision, on a different legal basis, or a refund more than 
30 days after it was issued; that is the situation as regards the disputed 
overpayment relating to 2014. 
A limitation of interest (described in point b) is accepted in the case-law of the 
national courts […]. However, with regard to the situation described in point (c), 
the view has been expressed in case-law that, although national law does not grant 
a taxable person interest, according to an interpretation in conformity with EU law 
it should be due in circumstances similar to those set out in Article 78 § 5(1) and 
(2) of the Tax Code, except that the time limit for submitting a request for a 
declaration of overpayment should be calculated from the date on which the tax is 
collected ([…] http://orzeczenia.nsa.gov.pl) 
However, the referring court notes that although Article 78 § 5 of the Tax Code 
laid down identical rules on interest on overpayments in respect of overpayments 
which arose as a result of a ruling of the Court of Justice and the Trybunał 
Konstytucyjny, the consequences with regard to overpayments arising from a 
judgment of the two courts are different. The entry into force of a ruling of the 
Trybunał Konstytucyjny declaring a provision of national law to be incompatible 
with the Constitution gives rise to the loss of binding force of that provision from 
the date on which the ruling is published in the official body (Article 190(2) and 
(3) of the ustawa z 2 kwietnia 1997 r. Konstytucja Rzeczpospolitej Polskiej (Law 
of 2 April 1997 establishing the Constitution of the Republic of Poland) (Dz. U. of 
1997, No 78, item 483, as amended)). Therefore, a situation cannot occur, such as 
that in the present case, where overpayment of tax arises after the ruling of the 
Trybunał Konstytucyjny has been published. This raises doubts as to whether, 
despite the application formally of the same rules, the Republic of Poland has 
ensured that national legal remedies and remedies to protect the rights of the 
individual derived from EU law are applied in the same way. The time limit for 
submitting a request for a declaration of overpayment is relatively short in the 
latter case, where the paying agent is required to inform the taxable person of the 
tax collected no later than the seventh day of the month after the month in which 
the tax was collected (Article 26(3) of the Law on Corporation Tax). 
In the light of the case-law of the Court of Justice (judgments of 13 March 2007, 
T. …, C-524/04, EU:C:2007:161; of 21 May 1976, R. v K., C-26/74, 
EU:C:1976:69; of 12 June 1980, E., C-130/79, EU:C:1980:155; of 15 September 
1998, A., C-279/96, C-280/96 and C-281/96, EU:C:1998:403; of 7 September 
2006, N., C-470/04, EU:C:2006:525; of 8 March 2001, M. and Others, C-397/98 
and C-410/98, EU:C:2001:134; and of 18 April 2013, M., C-565/11, 
EU:C:2013:250, the referring court also has doubts as to whether, in a situation 
such as that in the present case, limiting the period of interest on the overpayment 
also ensures that the damage which arose as a result of the collection of undue tax 
is compensated for and the principle deriving from Article 4(3) TEU is 
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implemented in full. Resolution of this issue is necessary in order to assess the 
ground of appeal on a point of law. For these reasons, the referring court considers 
it necessary to refer a question to the Court of Justice for a preliminary ruling 
pursuant to Article 267 TFEU. 
[…] [stay of proceedings] 
[…] [signatures, stamps]