Proposal for a COUNCIL IMPLEMENTING DECISION authorising the Republic of Poland to apply a special measure derogating from Articles 218 and 232 of Directive 2006/112/EC on the common system of value added tax
Date: 2022-03-30
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: Poland, VAT, derogation from EU law, e-invoicing, establishment, tax collection, taxpayer

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   EUROPEAN COMMISSION  Brussels, 30.3.2022  COM(2022) 136 final 2022/0091 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION authorising the Republic of Poland to apply a special measure derogating from Articles 218 and 232 of Directive 2006/112/EC on the common system of value added tax  
 
EXPLANATORY MEMORANDUM 

Pursuant to Article 395(1) of Directive 2006/112/EC of 28 November 2006 on the common 
system of value added tax1 (hereafter 'the VAT Directive'), the Council, acting unanimously 
on  a  proposal  from  the  Commission,  may  authorise  any  Member  State  to  apply  special 
measures  for  derogation  from  the  provisions  of  that  Directive  in  order  to  simplify  the 
procedure for collecting VAT or to prevent certain forms of tax evasion or avoidance. 

By letter registered with the Commission on 5 August 2021, the Republic of Poland requested 
authorisation to derogate from Articles 218, 226 and 232 of the VAT Directive to be able to 
impose mandatory electronic invoicing.  

Further,  by  letter  registered  with  the  Commission  on  9  February  2022,  Poland  modified  its 
request.  Accordingly,  Poland  requests  the  authorisation  to  derogate  only  from  Articles  218 
and 232 of the VAT Directive and specifies that mandatory electronic invoicing would only 
apply to taxable persons established in the territory of Poland. 

In accordance with Article 395(2) of the VAT Directive, the Commission informed the other 
Member States by letter dated 21 October 2021 of the request made by Poland. By letter dated 
22 October 2021, the Commission notified Poland that it had all the information necessary to 
consider the request. 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Poland submitted a request  for derogation based  on Article 395 of the VAT Directive to  be 
authorised  to  implement  an  obligation  to  issue  electronic  invoices,  processed  through  the 
National  e-Invoicing  System  (KSeF),  for  all  transactions  that  require  the  issuance  of  an 
invoice according to Polish VAT legislation. By letter dated 8 February 2022, the scope of the 
special measure was limited to taxable persons established in the territory of Poland.  

In addition, taxable persons will have to transmit to the KSeF specific information on certain 
transactions  that do not  need to  be documented  with  invoices issued in  accordance with  the 
Polish VAT rules, such as intra-Community acquisitions of goods and cross-border supplies 
of services. As these transactions do not require the issuance of an invoice according to Polish 
VAT legislation, the latter obligation does not entail a derogation from the VAT Directive. 

Poland considers that the introduction of a generalised obligation to issue electronic invoices 
would  bring  significant  benefits  in  terms  of  combating  VAT  fraud  and  evasion  while 
simplifying  tax  collection.  The  implementation  of  the  measure  will  accelerate  the 
digitalisation of the public sector. It will also help increasing the automation of processes for 
taxable  persons,  thus  simplifying  compliance  with  tax  obligations.  For  instance,  the 
information  obtained  through  e-invoicing  will  allow  for  the  pre-filling  of  VAT  returns  and 
recapitulative statements, and accelerated VAT refunds. 

Article 218 of the VAT Directive provides for an obligation for Member States to accept all 
documents or messages both in paper or electronic form as invoices. Poland would therefore 
like  to  obtain  a  derogation  from  the  above-mentioned  Article  of  the  VAT  Directive  so  that 
only  documents  in  electronic  form  can  be  considered  as  invoices  by  the  Polish  tax 
administration. 

1 

OJ L 347, 11.12.2006, p. 1. 

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Article 232 of the VAT Directive requires that the use of an electronic invoice shall be subject 
to  acceptance  by  the  recipient.  Therefore,  the  introduction  of  an  electronic  invoicing 
obligation in Poland requires a derogation from this Article so that the issuer no longer has to 
obtain the consent of the recipient to send an invoice in a paperless format. 

Poland  submits  that  the  mandatory  electronic  e-invoicing,  coupled  with  the  transmission  of 
additional  transaction  data,  will  significantly  improve  the  analytical  capabilities  of  the  tax 
administration.  This  will  lead  to  a  more  effective  prevention  and  identification  of 
irregularities, which will help combat VAT fraud and evasion. In particular, it will enable the 
Polish  tax  administration  to  automatically  verify  the  consistency  between  declared  and  paid 
VAT.  It  will  also  allow  a  smoother  and  more  accurate  verification  of  VAT  refund  claims 
submitted by taxpayers. Further, it will complement other measures introduced by Poland to 
combat VAT fraud and evasion and modernise the VAT system, such as the Single Audit File 
for  VAT  purposes,  the  split  payment  mechanism,  the  system  for  the  electronic  analysis  of 
financial  flows  (STIR)  or  the  online  fiscal  cash  register  system  for  monitoring  the  retail 
sector. 

The electronic invoicing obligation will cover all transactions carried out by taxable persons 
established  in  the  territory  of  Poland  that  currently  require  the  issuance  of  an  invoice  in 
accordance  with  the  Polish  Act  on  VAT2.  In  addition,  specific  information  on  certain 
transactions  that  do  not  require  the  issuance  of  an  invoice  will  be  transmitted  to  the  KSeF. 
This  is  the  case  of  intra-Community  acquisitions  of  goods  and  cross-border  supplies  of 
services, where the buyer or service recipient are the ones obliged to settle VAT in Poland. As 
these  transactions  do  not  require  the  issuance  of  an  invoice  according  to  Polish  VAT 
legislation,  the  latter  obligation  does  not  entail  a  derogation  from  the  VAT  Directive.  The 
transmission of this information will allow the preparation of pre-filled VAT declarations and 
recapitulative statements. 

The  obligation  to  issue  electronic  invoices  using  the  KSeF  will  apply  to  all  taxpayers, 
established  in  the  territory  of  Poland,  carrying  out  activities  that  require  the  issuance  of  an 
invoice  in  that  territory  under  Polish  VAT  rules.  This  includes  taxable  persons  benefitting 
from  the  exemption  for  small  enterprises  referred  to  in  Article  282  of  the  VAT  Directive. 
However,  the  implementation  of  the  mandatory  e-invoicing  model  will  not  affect  neither 
foreign taxpayers who are not obliged to register for VAT in Poland in connection with their 
intra-Community transactions or cross-border supplies of services nor taxpayers registered for 
VAT  in  Poland  but  not  established  in  its  territory.  Neither  will  it  affect,  in  those  cases,  the 
right of customers to receive paper invoices. 

Taxable persons will be able to issue and make structured electronic invoices available using 
the  KSeF.  For  this  purpose,  the  Polish  Ministry  of  Finance  will  offer  several  tools  free  of 
charge:  the  online  app  ‘e-Mikrofirma’,  accessible  via  smartphone  and  a  web  form  to  any 
taxpayer logged on to e-Urząd (e-Office)3. Businesses will also be able to produce structured 
electronic invoices in their financial and accounting software and send them to the KSeF by 
means of an application program interface, after the relevant authorisation. For this purpose, it 
will  only  be  necessary  for  the  taxpayers  or  a  person  authorised  by  them  to  authenticate 
themselves using one of the publicly available means. 

Electronic  invoices  will  need  to  be  validated  by  the  KSeF.  Once  validated  the  electronic 
invoice will be deemed received and will automatically be available for the recipient to read 

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Act of 11 March 2004 on Value Added Tax (Polish Journal of Laws of 2021 item 685, as amended). 
A  centralized  system  which,  according  to  Poland,  makes  it  possible  to  settle  taxes  comprehensively 
online. e-Urząd is a project which  will provide  taxpayers  with online  tools that  will  make it easier to 
meet tax obligations, including paying taxes, through an online electronic payment service. 

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or  download.  In  the  event  of  malfunction  of  the  KSeF  system,  a  message  about  the 
unavailability of the system will appear on the website. An emergency procedure is envisaged 
for these cases, to  ensure the smooth  processing of invoices by taxpayers. For this purpose, 
businesses will be able to issue invoices in their own accounting software. 

Poland  submits  that  this  measure  will  entail  benefits  to  taxable  persons,  such  as  an  invoice 
storage and  archiving service provided by the administration, the elimination of the need to 
print  invoices  and  manually  enter  them  into  accounting  systems,  the  impossibility  of  losing 
invoices, the automation of accounting processes  and the simplification of tax and reporting 
obligations. 

In  order  to  minimise  the  impact  of  the  measure  on  taxable  person  and  to  enable  them  to 
smoothly  adapt  to  the  mandatory  regime,  Poland  has  implemented  a  voluntary  e-invoicing 
model, where the acceptance of the use of electronic invoice by the recipient is still necessary, 
which came into force on 1 January 2022. Prior to that, from October 2021, an e-invoice pilot 
programme enabled tests of the system with entrepreneurs. 

Given  the  broad  scope  of  the  derogation,  it  is  important  to  ensure  the  necessary  follow-up 
within  the  framework  of  this  derogation.  In  particular  the  impact  of  the  measure  on 
combatting  VAT  fraud  and  evasion  and  on  taxable  persons.  Should  Poland  wish  to  prolong 
the derogating measure, it is requested to provide a report on the functioning of the measure 
together  with  the  prolongation  request.  This  report  should  provide  the  assessment  of  the 
measure  on  its  effectiveness  in  fighting  VAT  fraud  and  evasion  and  in  simplifying  tax 
collection. The report should also include an evaluation of the measure on taxable persons and 
in particular what concerns the increase of their administrative burdens and compliance costs.  

It is proposed to authorise the derogation as from 1 April 2023 until 31 March 2026. 

• 

Consistency with existing policy provisions in the policy area 

Article  218  of  the  VAT  Directive  puts  paper  and  electronic  invoices  on  equal  footing  by 
providing that Member States shall accept documents or messages on paper or in electronic 
form as invoices. Following Article 232 of the VAT Directive, the use of an electronic invoice 
shall  be  subject  to  acceptance  by  the  recipient.  The  obligatory  electronic  invoicing  as 
envisaged by Poland would indeed derogate from these two provisions.  

The  derogation  can  be  authorised  based  on  Article  395  of  the  VAT  Directive  in  order  to 
simplify  the  procedure  for  collecting  VAT  or  to  prevent  certain  forms  of  tax  evasion  or 
avoidance. Poland requested the derogating measure to fight tax fraud and evasion as well as 
to  simplify  the  tax  collection.  Based  on  the  elements  provided  by  Poland,  the  derogation  is 
consistent with the existing policy provisions. 

Similar authorisations allowing Italy and France to derogate from Articles 218 and 232 of the 
VAT  Directive  in  order  to  implement  mandatory  electronic  invoicing,  were  granted  by 
Council  Implementing  Decision  (EU)  2018/5934  and  Council  Implementing  Decision  (EU) 
2022/1335. 

Finally,  the  Commission  adopted  in  2020  the  “Communication  from  the  Commission  to  the 
European Parliament and the Council: an Action Plan for fair and simple taxation supporting 
the recovery strategy”6. One of the actions envisaged in this action plan is the adoption by the 
Commission  of  a  legislative  proposal  aimed  at  modernising  VAT  reporting  obligations.  As 

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6 

OJ L 99, 19.4.2018, p. 14. 
OJ L 20, 31.1.2022, p. 272. 
https://ec.europa.eu/taxation_customs/system/files/2020-07/2020_tax_package_tax_action_plan_en.pdf 

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indicated  in  the  Action  Plan,  this  proposal  should,  amongst  others,  help  streamline  the 
reporting  mechanisms  that  can  be  applied  for  domestic  transactions.  The  need  to  further 
expand e-invoicing will also be examined in this context. Therefore, the derogation asked by 
Poland is aligned with the objectives pursued by the Commission as laid down in the Action 
Plan. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 395 of the VAT Directive.  

• 

Subsidiarity (for non-exclusive competence)  

Considering the provision of the VAT Directive on which the proposal is based, subsidiarity 
principle does not apply.  

• 

Proportionality 

The proposal complies with the proportionality principle for the following reasons.  

The Decision concerns an authorisation granted to a Member State upon its own request and 
does not constitute any obligation.  

The mandatory electronic invoicing will entail a number of changes for taxable persons. To 
help  them  cope  with  the  situation,  Poland  has  put  in  place  a  voluntary  electronic  invoicing 
model from 1 January 2022, preceded by an e-invoice pilot programme enabling the testing of 
the  system  with  entrepreneurs.  Further,  Poland  will  provide  free  tools  to  comply  with  the 
electronic  invoicing  obligation  and  the  Ministry  of  Finance  and  the  National  Revenue 
Administration  (NRA)  will  carry  out  an  extensive  information  campaign  to  familiarise 
taxpayers with the new VAT invoicing rules. 

Taxable  persons  benefitting  from  the  exemption  for  small  enterprises  referred  to  in  Article 
282 of the VAT Directive are included under the scope of the measure. Poland considers that 
this inclusion is justified in order to prevent VAT evasion or avoidance. The Polish authorities 
have identified irregularities in the application of the VAT exemption for small businesses by 
not reporting all transactions carried out and by the artificial splitting up of business activities 
in order to remain below the threshold.  

In addition, analyses conducted by the NRA show that most of the missing trader fraud7 and 
fraud committed through fake invoices are generated by businesses that belong to the group of 
micro, small and medium-sized enterprises. Making electronic invoicing mandatory for such 
businesses will enable more effective monitoring and identification of such irregularities. 

Poland  submits  that  the  preparatory  work  carried  out  through  the  voluntary  electronic 
invoicing model and the tools that will be put at their disposal to comply with the obligation, 
coupled  with  the  advantages  and  benefits  derived  from  the  implementation  of  electronic 
invoicing, will largely absorb the investments that small enterprises will have to incur to adapt 
their systems. These investments will not be significant in any case, according to the estimates 
of the Polish authorities. 

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Missing  trader  fraud  is  a  type  of  VAT  fraud  where  traders  sell  goods  or  provide  services,  collect  the 
VAT from their customers and subsequently disappear without remitting the VAT they collected from 
their customers to the tax authorities. 

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The derogation is also limited in time and a report on the functioning and the effectiveness of 
the measure is to be prepared in case Poland wishes to prolong the derogating measure.  

Therefore, the special measure is proportionate to the aim pursued, i.e. to combat tax evasion 
and simplify tax collection. 

• 

Choice of the instrument 

Proposed instrument: Council Implementing Decision.  

Under  Article  395  of  the  VAT  Directive,  derogation  from  the  common  VAT  rules  is  only 
possible  upon  authorisation  of  the  Council  acting  unanimously  on  a  proposal  from  the 
Commission. A Council Implementing Decision is the most suitable instrument since it can be 
addressed to an individual Member State.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Impact assessment 

The  mandatory  electronic  invoicing  will  impact  both  the  tax  administration  and  taxable 
persons. 

Poland  expects  that  mandatory  electronic  invoicing  will  help  tighten  up  and  modernise  the 
Polish VAT system to make it more resistant to fraud and other irregularities. It will automate 
and provide faster access to a wider range of data,  improving the analytical activities of the 
tax administration. Poland estimates that it will contribute to an increase in budget revenues of 
approximately PLN 1,8 billion per year. These additional revenues will be obtained from the 
reduction of missing trader-type VAT fraud as well as from the reduction of unjustified VAT 
refunds. Poland submits that these are conservative estimates which do not take into account 
the  potential  revenues  arising  from  the  contribution  of  the  KSeF  to  the  detection  of  other 
irregularities  related  to  VAT,  such  as  under-reporting  of  retail  sales  and  the  increase  in  the 
collection of income taxes. 

The implementation of generalised mandatory electronic invoicing will generate costs for the 
state  budget  related  to  the  creation  and  maintenance  of  the  system,  as  well  as  the 
infrastructure needed to store invoices and the gradual increase in analytical capacity due to 
the  successively  growing  database.  Poland  estimates  that  the  expenses  related  to  the 
introduction  and  maintenance  of  the  KSeF  in  the  years  2021-2026  will  total  approximately 
PLN 161,2 million. 

Taxable  persons  will  incur  costs  as  a  result  of  the  introduction  of  mandatory  electronic 
invoicing, mainly related to the need to adapt their accounting systems. However, the cost of 
issuing  an  invoice  using  the  KSeF  will  be  very  low,  much  lower  than  in  paper  format.  To 
mitigate these costs,  the  Polish Ministry of Finance  will provide free tools  in  order to  issue 
and process structured electronic invoices. 

Therefore, Poland does  not  expect  the costs  for  taxable persons  to  be significant,  especially 
when  compared  to  the  benefits  they  will  obtain  from  the  introduction  of  the  electronic 
invoicing  model.  Poland  submits  that  taxable  persons  will  obtain  significant  benefits  as  a 
result of the implementation of mandatory electronic invoicing, such as an invoice storage and 
archiving  service  provided  by  the  administration,  the  disappearance  of  the  need  to  print 
invoices and manually enter them into accounting systems, the reduction of mistakes due to 
the  automation  of  the  accounting  process  or  the  increase  in  the  speed  of  data  exchange 
between  business  partners.  Other  benefits  will  be  the  simplification  of  tax  and  reporting 

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obligations,  like  pre-filled  declarations  and  recapitulative  statements,  the  reduction  in  the 
number of verifications and inspections carried out by the tax administration and faster VAT 
refunds. 

4. 

BUDGETARY IMPLICATIONS 

The measure will have no adverse impact on the Union's own resources accruing from VAT. 

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2022/0091 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

authorising the Republic of Poland to apply a special measure derogating from Articles 
218 and 232 of Directive 2006/112/EC on the common system of value added tax 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having  regard  to  Council  Directive  2006/112/EC  of  28  November  2006  on  the  common 
system of valued added tax1, and in particular Article 395(1) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

1 
2 

By  letter  registered  with  the  Commission  on  5  August  2021,  Poland  requested 
authorisation  to  introduce  a  special  measure  derogating  from  Articles  218,  226  and 
232  of  Directive  2006/112/EC  to  introduce  mandatory  electronic  invoicing  for  all 
transactions carried out by taxable persons that require the issuance of an invoice. The 
authorisation was requested for a period from 1 April 2023 to 31 March 2026. 

The Commission transmitted the request made by Poland to the other Member States 
by  letters  dated  21  October  2021.  By  letter  dated  22  October  2021,  the  Commission 
notified Poland that it had all the information necessary to consider the request. 

By letter dated 8 February 2022, Poland has informed the Commission that derogation 
from  Article  226  of  Directive  2006/112/EC  is  not  needed  and  that  the  scope  of  the 
requested measure  would be limited to taxable persons established in the territory of 
Poland. 

Poland  submits  a  generalized  requirement  for  mandatory  electronic  invoicing  would 
provide  benefits  in  combatting  value  added  tax  (VAT)  fraud  and  evasion.  That 
requirement,  coupled  with  the  transmission  of  additional  transaction  data,  will 
significantly  improve  the  analytical  capabilities  of  the  Polish  tax  administration, 
enabling  it  to  automatically  verify  the  consistency  between  VAT  declared  and  paid 
and  allowing  a  more  accurate  verification  of  VAT  refund  claims  submitted  by 
taxpayers. Further, it will complement other measures aimed at combatting VAT fraud 
and evasion and modernising the VAT system, such as the Single Audit File for VAT 
purposes,  the  split  payment  mechanism2,  the  system  for  the  electronic  analysis  of 
financial flows or the online fiscal cash register system for monitoring the retail sector. 

Poland  considers  that  mandatory  electronic  invoicing  would  enable  a  number  of 
facilitations for taxable persons to simplify compliance with their obligations, such as 
the  pre-filling  of  VAT  returns  and  recapitulative  statements  or  accelerated  VAT 
refunds. Electronic invoicing would provide advantages to taxable persons, such as an 

OJ L 347, 11.12.2006, p. 1. 
Introduced  in  Poland  following  the  authorisation  granted  by  Council  Implementing  Decision  (EU) 
2019/310 (OJ L 51, 22.2.2019, p. 19). 

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invoice storage and archiving service provided by the administration or the automation 
of accounting processes. According to Poland, the costs taxable persons would have to 
incur to adapt their systems to electronic invoicing are not expected to be significant, 
especially when compared to the benefits they would obtain from the introduction of 
the electronic invoicing model. To help with that adaptation, Poland has put in place 
voluntary electronic invoicing, before the entry into force of the mandatory one. Along 
with  that,  free-of-charge  tools  to  comply  with  the  mandatory  electronic  invoicing 
requirement  would  be  provided  and  an  extensive  information  campaign  would  be 
carried out with an aim to familiarise taxpayers with the new VAT rules on mandatory 
electronic invoicing. 

Given  the  broad  scope  and  the  novelty  of  the  special  measure,  it  is  important  to 
evaluate  its  impact  on  combatting  VAT  fraud  and  evasion  and  on  taxable  persons. 
Therefore,  where  Poland  considers  that  an  extension  of  the  special  measure  is 
necessary, it should submit to the Commission, together with the request for extension, 
a report including the assessment of the special measure concerning its effectiveness in 
fighting VAT fraud and evasion and in simplifying VAT collection. 

This  special  measure  should  not  affect  the  right  of  the  customer  to  receive  paper 
invoices in case of intra-Community transactions. 

The special measure is proportionate to the objectives pursued. In addition, the special 
measure does not give rise to the risk that fraud would shift to other sectors or to other 
Member States. 

The  special  measure  will  not  negatively  affect  the  overall  amount  of  tax  revenue 
collected  at  the  stage  of  final  consumption  and  will  have  no  adverse  impact  on  the 
Union’s own resources accruing from VAT, 

(6) 

(7) 

(8) 

(9) 

HAS ADOPTED THIS DECISION:  

Article 1 

By  way  of  derogation  from  Article  218  of  Directive  2006/112/EC,  Poland  is  authorised  to 
accept  invoices  which  have  been  issued  by  taxable  persons  established  in  the  territory  of 
Poland  in  the  form  of  documents  or  messages  only  if  those  documents  or  messages  are 
transferred in electronic format. 

By  way  of  derogation  from  Article  232  of  Directive  2006/112/EC,  Poland  is  authorised  to 
provide that the use of electronic invoices issued in the territory of Poland shall not be subject 
to an acceptance by the recipient. 

Article 2 

Poland  shall  notify  the  national  measures  implementing  the  derogations  referred  to  in 
Articles 1 and 2 to the Commission. 

Article 3 

Article 4 

This Decision shall apply from 1 April 2023 until 31 March 2026. 

Where Poland considers that the extension of the derogations referred to in Articles 1 and 2 is 
necessary,  Poland  shall  submit  a  request  for  extension  to  the  Commission,  together  with  a 

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report assessing the extent to which the national measures referred to in Article 3 have been 
effective  in  combatting  VAT  fraud  and  evasion  and  in  simplifying  VAT  collection.  That 
report  shall  also  evaluate  the  impact  of  those  measures  on  taxable  persons  and  in  particular 
whether those measures increase their administrative burdens and costs. 

This Decision is addressed to the Republic of Poland. 

Done at Brussels, 

Article 5 

For the Council 
The President 

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