National Energy and Climate Plan – Strategic Directions for Energy Transition

On 8 June 2026, the Council of Ministers adopted the updated “National Energy and Climate Plan to 2030 with a perspective to 2040”, which constitutes the primary strategic document for Poland’s energy transition.

The document sets out the government’s strategic objectives in the areas of energy security, energy mix structure, greenhouse gas emissions reduction, and the development of a low-carbon economy. The NECP also serves both planning and reporting functions vis-à-vis the European Commission—its adoption results from obligations imposed by Regulation (EU) 2018/1999 on the governance of the Energy Union.

The plan provides for two transformation scenarios: a baseline (WEM – “with existing measures”), based on current instruments, and an accelerated scenario (WAM – “with additional measures”), assuming full implementation of the EU “Fit for 55” package.

Key indicators for 2030 include, inter alia: 

• reduction of GHG emissions by 43–53% compared to 1990,

• achieving a 30–32% share of RES in gross final energy consumption,

• reduction in primary energy consumption by 14.4% relative to model projections.

The document serves as a reference point for future regulatory instruments and mechanisms supporting energy investments. 

National Energy and Climate Plan through 2030 with a perspective to 2040 – adopted by the Council of Ministers

The World Bank has adopted the Partnership Strategy for Poland for 2026–2031, outlining directions of cooperation in key sectors of the economy, including energy. The document identifies energy transition as one of the pillars of further economic development.

In the energy sector, the strategy focuses on supporting investments in new generation capacity, modernization and digitalization of grid infrastructure, development of low-emission technologies, and transformation of regions dependent on fossil fuels. The scope also includes district heating, circular economy, and carbon capture and storage (CCS) technologies.

Support instruments include various forms of financing and investment guarantees provided by the World Bank Group institutions, including IBRD, IFC and MIGA. Particular emphasis is placed on mobilizing private capital and using guarantee and advisory instruments.

The strategy also highlights the scale of investment challenges related to energy transition, emphasizing the need for substantial long-term funding and stable regulatory frameworks for investors. 

New World Bank Group Partnership with Poland Focuses on Mobilizing Private Capital, Driving Innovation, and Creating Better Jobs

The President signed an act extending the validity of spatial development studies until 31 August. The act was promulgated on 15 June 2026. The new provisions extend the deadline for municipalities to adopt general plans until 31 August. We covered these changes in more detail in Newsletter 5/2026.

Although the change is technical and transitional, it has significant practical implications for investment processes, as a lack of continuity in planning documents could lead to suspension of certain projects.

On 26 May 2026, the Council of Ministers adopted a regulation amending provisions on projects likely to significantly affect the environment, introducing into Polish law a simplified procedure for upgrading existing wind farms (so-called repowering). The regulation entered into force on 13 June 2026.

The new provisions allow modernization of wind farms by increasing their installed capacity by up to 30% without the need to obtain a new environmental decision, provided specific criteria are met.

The simplified procedure applies only to installations located outside protected areas. Additionally modernization must not increase the number of turbines or significantly change their location (permissible shift up to 150 m), and total capacity after modernization cannot exceed 100 MW.

The aim is to improve the efficiency of existing infrastructure and shorten project timelines—according to administrative assumptions by at least six months. 

The Sejm adopted a deregulation act aimed at simplifying market operations and improving transparency for consumers. The act was submitted to the President for signature on 11 June 2026.

The regulation is cross-sectional – it amends the Energy Law and a number of sectoral acts, including those concerning oil and gas reserves, renewable energy sources and cogeneration. The introduced solutions cover both consumer issues and the functioning of energy enterprises and selected market segments.

In the area of relations with consumers, it is envisaged, among others, an obligation to attach to electricity bills a simplified summary of key cost items and information on the period of validity of the contract (from 30 June 2027). At the same time, the primary form of communication between energy companies, consumers and administrative authorities is to become electronic, while preserving the consumer’s right to request communication in paper form.

The changes also include correction of transitional provisions introduced by an earlier amendment to the Energy Law, referred to as the grid act (about which we wrote, among others, in Newsletter 5/2026), by removing an imprecise reference regarding changes in connection conditions. The amendment clearly indicates the appropriate legal basis concerning restrictions on changing the location of an investment, which is intended to reduce interpretative risks in the practice of applying the provisions. 

In parallel, a draft amendment to the Energy Law is being processed, aimed at clarifying provisions of the so-called grid act, submitted by the Sejm Committee for Deregulation. The proposed changes concern in particular:

• replacement of the general vacatio legis in part of the provisions with specific deadlines for performance of obligations by RES investors,

• removal of interpretative doubts affecting the possibility of using preferential conditions of financial securities.

The changes are of a clarifying nature and are aimed at unifying application of the provisions by system operators. 

On 3 April 2026, an amendment to the Act on the National Cybersecurity System came into force, implementing the NIS2 Directive1 into the Polish legal order. The amended provisions significantly expand the scope of entities covered by cybersecurity requirements and introduce a new categorization – into key entities and important entities.

The entry into force of Polish NIS2 regulations means transition from the legislative stage to the stage of their actual, operational application. From 7 May 2026 the process of self-registration in the register of key and important entities has been ongoing, while from 12 June 2026 new entities covered by the act may use the S46 system. In practice, entrepreneurs should therefore not only monitor regulatory changes, but above all verify whether they are subject to obligations under the act and whether they are required to register in the KSC register.

At the same time in July an amendment to the act on crisis management enters into force, which strengthens links between the cybersecurity system and the national crisis response system. These changes aim at better coordination of actions in the event of serious incidents, including cyber events affecting functioning of critical infrastructure. The amendment clarifies competences of administrative authorities and mechanisms of cooperation between entities covered by NIS2 and crisis management structures at national and regional level.

We have provided a detailed overview of the obligations, categories of entities, and key deadlines related to the implementation of the NIS2 Directive in our Legal Alert: The NIS2 Directive implemented in Poland. New cybersecurity obligations for entrepreneurs 

The Act amending the Aviation Law constitutes an element of adapting the national legal order to already binding EU regulations in the field of sustainable aviation transport, in particular Regulation ReFuelEU Aviation2. The EU provisions, which entered into force in 2023, introduce at the level of the entire EU systemic requirements concerning increasing the share of sustainable aviation fuels (SAF) and limiting greenhouse gas emissions in the aviation sector. The Polish amendment is of an implementing and executive nature – its main objective is to ensure institutional frameworks and supervision mechanisms enabling application of EU provisions in practice.

The national provisions also define competence of administrative authorities responsible for supervision over performance of obligations resulting from EU regulation and introduce instruments for enforcement of those obligations. This is of practical importance for market functioning, as ReFuelEU Aviation is based on gradually increasing levels of share of sustainable fuels, which must be monitored and verified at national level.

The amendment forms part of the broader process of adapting Polish sectoral regulations to EU climate and transport frameworks and creates legal grounds for functioning of the SAF market in Poland.

On 19 June 2026 Sejm adopted a draft act on a tax on extraordinary profits from sale of liquid fuels achieved in the period from March to December 2026. 

The tax is of a sectoral and extraordinary nature. Its construction refers to solutions introduced earlier at the level of the European Union, in particular to mechanisms of temporary taxation of extraordinary profits in conditions of high volatility of energy and energy commodity prices. The subjective scope of the act covers certain categories of enterprises operating on electricity and fuel markets, while detailed criteria for being covered by the tax result from financial parameters and the nature of conducted activity.

The tax is to cover entrepreneurs conducting, either independently or through another entity, activities in the field of production of liquid fuels or the import/intra-Community acquisition of liquid fuels in Poland, in the period from 1 March 2026 to 31 December 2026 – and thus with retroactive effect, which raises considerable doubts in public opinion.

On 25 June, however, the Senate passed an amendment under which the amount of the tax may not exceed the income determined for PIT or CIT purposes, and in the case of a general partnership – its accounting profit. 

In parallel to work on the deregulation act and the amendment to the grid act, work is ongoing on another amendment to the Energy Law. The Ministry of Energy has submitted for consultation draft UC121 constituting the next stage of implementation of the Energy Efficiency Directive (EED) of 2023 into the Polish legal order. 

The proposed changes focus primarily on the heating and cooling sector and on adapting national regulations to the new EU requirements regarding efficiency and decarbonisation of energy systems.

One of the key elements of the draft is the introduction of new definitions and calculation methodologies, including in the field of high-efficiency cogeneration and CO₂ emission indicators. The regulation also provides for the establishment of detailed criteria for so-called efficient heating and cooling systems for the years 2027–2050, which will be relevant for access to public funds and EU financing.

The draft also introduces new planning and reporting obligations. Energy enterprises and system operators will be obliged to provide data necessary to prepare a comprehensive assessment of heating and cooling systems, linked to the NECP. Additionally, municipalities with more than 45 thousand inhabitants will be obliged to prepare local plans in this area. 

The draft also includes strengthening of consumer protection, inter alia through increasing transparency of contractual terms and expanding information obligations of heating companies.

Since 25 May 2026, consultations have been ongoing on a draft amendment to the system regulation, the purpose of which is to further specify the rules of operation of the balancing market and to introduce a regulatory framework for flexibility services. The draft constitutes another stage of adapting technical regulations to the growing share of renewable sources and increased variability of operation of the power system.

One of the key areas of changes are proposals concerning the extension of the scope of information available to electricity system operators on the operation of the National Power System (KSE). The regulation aims to increase predictability of system operation by improving the quality of data provided by market participants, in particular energy producers and operators of energy storage.

System operators are to be obliged to define minimum standards of correctness of submitted operating plans. In the event of their non-compliance, the draft provides for the possibility of limiting generation or disconnecting a unit from the grid. At the same time, it is proposed to exclude the financial liability of the operator for such actions, which in practice means transferring the risk associated with incorrect reporting to installation owners.

These changes complement solutions introduced earlier, including the amendment to the regulation of 15 May 2026, which introduced an obligation for distribution system operators to publish aggregated data concerning energy flows and generation and consumption in the network (for units above 200 kW). These data are to support parties responsible for balancing (BRP) in managing commercial portfolios. 

An important part of the draft is also comprehensive regulation of flexibility services in distribution networks. The new provisions are to define rules for contracting, activating and settling such services by distribution system operators (DSOs). These services consist in a temporary change – relative to a reference profile – of the level of consumption or injection of energy into the grid in response to an operator’s instruction. Their purpose will include, inter alia, preventing network congestion, improving system security and reducing the need to curtail RES generation.

The entirety of the proposed regulations fits into the direction of increasing the role of market tools and operational data in managing the power system and in integrating a growing number of distributed and variable energy sources.

The draft amendment to the Geological and Mining Law (UD419) has been included in the list of legislative works of the Council of Ministers and aims at comprehensive adaptation of regulations to current market needs and conclusions from previous practice of applying the provisions.

One of the main assumptions of the draft is simplification of administrative procedures related to geological and mining activity, including licensing, establishment of mining usufruct and approval of geological documentation. Partial digitalisation of some processes and reduction of selected administrative obligations are also planned. The UD419 draft provides for extension of the catalogue of minerals covered by mining ownership to include selected raw materials (including barite, fluorite, phosphorite, natural graphite), i.e. part of critical raw materials within the meaning of the EU Critical Raw Materials Act.

At the same time, the draft provides for changes of a tightening nature, including limitation of the maximum area and duration of exploration licences and modification of the system of exploitation fees. The purpose of these changes is to increase efficiency of resource use and limit potential abuses.

An important element of the amendment is extension of the catalogue of minerals covered by mining ownership to include selected raw materials considered critical, which is relevant for raw material security and implementation of energy transition objectives. 

Anna Szczodra, Managing Partner at KPMG Law and Leader of advisory for the energy sector in Poland and the EMA region, took part in the Polish Wind Energy Association PSEW 2026 Conference – one of the key industry events dedicated to the development of wind energy and, more broadly, the energy market in Poland.

On 8 June, she participated in a debate entitled “Energy market: between the price for the consumer and the profitability of production”, focusing on tensions between energy policy objectives, the need to maintain competitive energy prices and ensuring bankability of generation projects. The discussion covered, inter alia, the impact of energy market and capacity market regulations, the role and importance of the NECP and the State Energy Policy in shaping the energy mix in Poland, support systems for generation sources, as well as consequences of the development of sector coupling for profitability of investments and energy costs for end users.

Anna Szczodra took part in an expert conference organised by the AGH University of Science and Technology in Kraków, devoted to issues of distributed energy and attractiveness of investments in the energy sector.

As part of the conference, Anna Szczodra presented issues related to increasing profitability of investments in green technologies, including current market trends in the energy sector, as well as potential challenges and opportunities for investors. 
[Konferencja preKER #4 - Atrakcyjność inwestycji w technologie energetyki rozproszonej (24 June 2026): Overview · Indico]

During the Ukraine Recovery Conference 2026 in Gdańsk on 25 June 2026, Anna Szczodra represented KPMG Law in the expert panel “New energy technologies & innovations”. The conference gathered representatives of public administration, international institutions, the financial sector and business, focusing on the long-term reconstruction of Ukraine.

The panel in which Anna Szczodra participated was devoted to the role of modern energy technologies and innovative investment models in rebuilding Ukraine’s energy infrastructure. The discussion concerned, inter alia, energy security, resilience of energy systems, integration of RES and creation of regulatory conditions conducive to the inflow of private capital.

Letter dated 19 May 2026, issued by: Director of the National Tax Information, 0113-KDIPT2-1.4011.197.2026.1.ISL - Flat rate for project management services in the RES sector

The Director of the National Tax Information Service (hereinafter: "DKIS" or "the Authority") has confirmed that revenues from investment project management services (Project Manager) classified under PKWiU 70.22.20.0 – "Other project management services, excluding construction projects" may be taxed with a lump sum on recorded revenues at the rate of 8.5%, provided that they do not include management consulting services (PKWiU ex section 70).

Background to the case

The taxpayer runs a sole proprietorship as a Project Manager, managing investment projects in the RES sector. The scope of services includes, m.in. development and updating of schedules, supervision over the implementation of project assumptions, coordination of project participants, progress reporting, participation in the preparation of documentation for permits, risk and budget management. The services were classified by the taxpayer under PKWiU 70.22.20.0 – "Other project management services, excluding construction projects". The taxpayer meets the conditions for taxation with a lump sum (limit of EUR 2 million, no exemptions from Article 8) and does not provide management consulting services or IT services indicated in the Act.

DKIS position

The Director of the National Tax Administration considered the classification of services under PKWiU 70.22.20.0 to be an element of the description of the case and assumed that these are not consulting services related to management (PKWiU ex section 70), but "other project management services". As a consequence, revenues from this activity may be taxed at a lump sum rate of 8.5% pursuant to Article 12(1)(5)(a) of the Lump Sum Act, and not at the rate of 15% under Article 12(1)(2)(m), reserved for management consulting services and head office services. The authority emphasized that the condition remains that the conditions for exclusions from Article 8 continue to be met and that management advisory services are not actually provided.

Importance of interpretation

The ruling confirms that "other project management services" (PKWiU 70.22.20.0) understood as coordination, supervision, organization, reporting, budget and risk control are not automatically treated as management consulting within the meaning of the lump sum regulations. For such services, the appropriate rate is 8.5%, unless they fall within the scope of strategic/management consulting (PKWiU 70.22.1) or services of central companies, which would be taxed at 15%.

Practical consequences

Persons operating in the field of project management, including in the RES sector) may apply a flat rate of 8.5% if their services fall within the scope of PKWiU 70.22.20.0 and actually consist in project implementation management, and not in consulting on strategy or company management. In the case of providing management consulting services at the same time, revenues from these services would have to be subject to a higher rate of 15%, and the taxpayer should keep records allowing for the separation of revenues taxed at different rates.

Letter dated 28 May 2026, issued by: Director of the National Tax Information, 0111-KDIB3-3.4013.66.2026.3.AM - Excise duty exemption for PV energy < 1 MW consumed for rental purposes

The Director of the National Tax Information Service (hereinafter: "DKIS" or "the Authority") has confirmed that electricity produced in photovoltaic installations with a total capacity of less than 1 MW, consumed by the owner (tenant/lessee) of buildings for the purpose of providing rental services, benefits from excise duty exemption under § 5(1) of the Regulation on excise duty exemptions – provided that this energy is not sold or "re-invoiced" to tenants. 
 

Background to the case

The Applicant runs a business consisting in renting office and warehouse real estate, generating rental income. On the buildings owned by the Company/Lessee/Lessee, photovoltaic installations with a total capacity of less than 1 MW are installed, producing electricity used to power the leased space. Tenants pay for rent, service fee and individual fee (utilities), but after clarification it is indicated that the item "electricity" in the individual fee includes only the cost of energy purchased from an external supplier (re-invoice without surcharge), and not energy from PV. Some PV installations have contracts with the distribution network operator for the collection of surpluses, which are sold to the operator on the basis of an invoice. The applicant and the tenants do not have energy licenses, but the operator does.

DKIS position

DKIS concluded that in the described situation, in the scope of energy from PV consumed for the needs of buildings, electricity is consumed by the entity that produced it, referred to in Article 9(1)(4) of the Excise Act. At the same time, since this energy is generated in generators with a total capacity not exceeding 1 MW and is not sold to tenants or included in the individual fee, the conditions for exemption from excise duty provided for in § 5(1) of the Regulation on excise duty exemptions are met. 

Importance of interpretation

The ruling confirms that electricity produced in PV installations with a total capacity of less than 1 MW, consumed by the entity that generated it, for the purposes of its activity (e.g. the provision of rental services), may benefit from the excise duty exemption under § 5(1) of the Regulation, provided that it is not resold and the other conditions are met. It is crucial to clearly separate the energy purchased from the supplier (re-invoiced) from the energy generated in its own installations in the settlements.

Practical consequences

Taxpayers generating energy in PV installations with a total capacity of less than 1 MW, who consume this energy for their own needs (e.g. for rented buildings) and do not sell it to end users, may benefit from an exemption from excise duty under § 5(1) of the Regulation. It should be ensured that invoices to tenants cover only energy purchased from external suppliers and that the cost of energy from PV is not passed on directly to them. In the case of surplus energy sold to the operator, it is necessary to recognise these transactions separately, but this does not affect the exemption for own energy consumption from PV.

Letter dated 8 June 2026, issued by the Director of the National Tax Information, 0112-KDIL1-1.4012.260.2026.1.EK – VAT on the foundation's photovoltaic installation (prosumer, subjective exemption, VAT deduction)

The Director of the National Tax Information Service (hereinafter: "DKIS" or "the Authority") confirmed that a foundation conducting only unpaid statutory activity, which will install a small photovoltaic installation and sell surplus energy in the net-billing system, performs economic activity in this respect subject to VAT. Up to the limit of PLN 240,000, sales may benefit from a subjective exemption, while the right to deduct VAT from installations will arise only after exceeding the limit and registering as an active VAT taxpayer, using a pre-factor (Article 86(2a) et seq. of the VAT Act).
 

Background to the case

The Foundation conducts only unpaid public benefit (educational) activities, does not perform activities subject to VAT and is not registered as an active taxpayer. It is implementing an EU project involving the modernization of a historic palace for cultural and educational purposes, including the installation of a small photovoltaic installation (>50 kW, ≤1 MW). The energy from the installation is to be used mainly to power the palace (statutory activity), and the anticipated surplus energy is to be sold to the grid in the netbilling system (prosumer deposit). The Foundation intends to use the exemption under Article 113(1) of the VAT Act up to the limit of PLN 240,000 of sales per year, and after exceeding the limit, to register as an active VAT taxpayer.
 

DKIS position

DKIS held that the sale of surplus electricity produced from a photovoltaic installation constitutes a supply of goods for consideration (energy as a commodity) and is an activity subject to VAT, performed as part of business activity within the meaning of Article 15(2) of the Act. The Foundation may benefit from a subjective exemption up to the limit of PLN 240,000 of turnover (Article 113(1)), because the sale of energy does not exclude the right to this exemption, as long as it does not perform other activities from the catalogue of Article 113(13). Until the exemption is used (when all the energy is used for statutory activity and exempt sales), the Foundation is not entitled to deduct VAT on the purchase of PV installations. After exceeding the limit, registering as an active VAT taxpayer and starting taxable sales, the right to deduct input VAT on the installation arises, but only in the part attributable to taxable activities, applying the proportion referred to in Article 86(2a) et seq., and any adjustments should be made in accordance with Articles 90c and 91 of the VAT Act.
 

Importance of interpretation

The ruling confirms that non-profit organizations that install photovoltaics and sell surplus energy in the netbilling system perform business activity within the meaning of VAT and become active VAT taxpayers after exceeding the limit of PLN 240,000. At the same time, it points out that as long as the sale of energy falls within the subjective exemption, there is no right to deduct VAT on the installation, and this right appears only after registration, only in the part corresponding to the use for taxable sales, with the application of a pre-factor and a mechanism of multiannual adjustments.
 

Practical consequences

Foundations and other public benefit entities installing PV primarily for the purposes of their unpaid activity must take into account the lack of the right to deduct VAT if the sale of energy remains within the limit of the subjective exemption. After exceeding the limit of PLN 240,000 for energy sales and registration as an active VAT payer, it is possible to partially deduct VAT from expenditures on the installation – in a proportion corresponding to the share of taxable sales (energy to the grid) in the total use of the installation, taking into account mandatory annual adjustments. When planning the financing of RES projects (including in the calculation of VAT eligibility), it is necessary to take into account that it will not be possible to fully deduct VAT from the installation, and any right to partial deduction will appear only after entering the active VAT regime.

Letter dated 10 June 2026, issued by: Director of the National Tax Information, 0111-KDIB3-3.4019.5.2026.2.AM - HVO Biofuel (CN 2710 19 42) and the emission fee

The Director of the National Tax Information (hereinafter: "DKIS" or "the Authority") considered incorrect the position of the company, which claimed that liquid biofuel of the HVO type (100% biocomponent, classified under CN code 2710 19 42) is not subject to the emission fee. DKIS stated that this product as diesel within the meaning of the excise duty regulations and the Environmental Protection Law is subject to the emission fee both before and after 1.01.2026.
 

Background to the case

The Company imports liquid fuels, including liquid biofuel in the form of hydrotreated vegetable oil (HVO) containing 100% biocomponent, classified under CN code 2710 19 42, used as a stand-alone fuel – the equivalent of diesel of vegetable origin. So far, the Company has settled the emission fee on this product, then decided that as a biofuel (liquid biocarbon within the meaning of the Act on Biocomponents and Liquid Biofuels) it should not be subject to the emission fee, arguing, m.in, for separate treatment of biofuels in the "code" regulation and in the regulations on excise duty/fuel levy. In the application, the Company asked whether the introduction of this biofuel to the domestic market is subject to an emission fee before and after 1 January 2026.
 

DKIS position

DKIS considered the Company's position to be incorrect and stated that the introduction of the biofuel in question to the domestic market is subject to an emission fee both before and after 1 January 2026. The authority pointed out that the provisions of the Environmental Protection Law (hereinafter: "P.o.ś") link the emission fee to motor fuels, the placing on the market of which constitutes excise duty, and these fuels are, m.in, diesel fuels with CN code 2710 19 42. The change in the CN classification (from 2710 19 43 to 2710 19 42/44) did not change the tax status of the products, and HVO, as a product still classified in the group of diesel oils and subject to excise duty as diesel, falls within the scope of Article 321a(3)(2) of the Tax Act.  fuel surcharge) excludes HVO from the emission fee, emphasizing that the Environmental Protection Law does not provide for such an exclusion.
 

Importance of interpretation

The ruling confirms that HVO biofuel classified under CN code 2710 19 42, used as an independent motor fuel and subject to excise duty as diesel, is treated as diesel oil under the emission levy. A change in the CN code as a result of an update of the Combined Nomenclature or the biomass origin of the fuel does not exempt it from the obligation to pay the emission levy. The decision reinforces the close link between the emission levy and the excise system, and not with other sectoral definitions (biofuels, concessions).
 

Practical consequences

Entities placing on the domestic market liquid biofuels of the HVO type classified under CN 2710 19 42, used as motor fuel and subject to excise duty, should calculate and pay the emission levy on the basis of the rules applicable to diesel oils. There are no grounds to treat such biofuels, despite their biogenic nature and inclusion as biofuels in other regulations, as not subject to the emission fee. Therefore, when planning the trade in this type of products, both the excise duty and the emission fee should be taken into account.

Judgment of the Provincial Administrative Court in Kielce of 11 June 2026, I SA/Ke 171/26 - Repeal of a decision on the refund of part of the excise duty for an energy-intensive plant in the light of the interpretation of the Court of Justice of the European Union regarding the cost of electricity

The Provincial Administrative Court in Kielce (hereinafter: the "Provincial Administrative Court"),  in its judgment of 11 June 2026 (I SA/Ke 171/26), repealed the decisions of the tax authorities that refused to revoke the final decision on the refund of part of the excise duty on electricity for an energy-intensive plant. The dispute concerned whether, in the light of the judgment of the CJEU of 13.06.2024 in case C266/23 – when determining the "actual cost of purchased energy" for the purposes of Article 31d(3) of the Excise Duty Act, mandatory distribution fees should also be taken into account and whether the taxpayer may claim a higher refund in the mode of reopening the proceedings.
 

Background to the case

The Company (energy-intensive plant) applied for a refund of part of the excise duty paid on electricity consumed in 2022 pursuant to Article 31d of the Excise Duty Act (hereinafter: the "Excise Tax Act")tag. When calculating, it applied for a refund only on the price of energy, without distribution fees and other additional receivables shown on invoices. The head of the tax office granted a refund in the requested amount. Following the judgment of the CJEU in Case C266/23, in which it was held that the "actual cost of purchased energy" also includes non-tax distribution fees, the company filed a motion for reopening the proceedings pursuant to Article 240 § 1 point 11 of the Tax Ordinance (hereinafter: the "Tax Ordinance"). The authorities of both instances resumed the proceedings, but refused to revoke the final decision. They justified this by the fact that the CJEU's judgment had no impact on the content of the decision (because the authority granted the refund in accordance with the company's original application) and that the taxpayer was trying to extend its request after the deadline.
 

Position of the Provincial Administrative Court

The Provincial Administrative Court in Kielce found the complaint to be justified and repealed the decisions of both instances. The Court stated that the judgment of the CJEU in Case C266/23 is of a precedential nature, operates ex tunc and determines that the "actual cost" of energy in Article 31d(3) of the Act also includes mandatory distribution fees, so taking it into account would lead to a different (more favourable) decision as to the amount of reimbursement. In the court's opinion, the application for renewal does not constitute a new claim, but concerns the same refund of part of the excise duty for the same period, only in the correct amount resulting from the new interpretation, and the authorities erroneously refused to recognize the condition under Article 240 § 1 point 11 of the Civil Procedure Code. The court also emphasized that differentiating the situation of energy-intensive plants depending on whether they originally took into account distribution fees violates the constitutional principles of equality and tax justice.
 

Meaning of the interpretation/judgment

The judgment confirms that the CJEU's interpretation of the concept of "actual cost of purchased energy" in Article 31d(3) of the Act must also be applied retroactively (ex tunc) to already completed proceedings on the refund of excise duty for energy-intensive plants. This means that mandatory distribution fees should also be taken into account when determining the "K" coefficient, and the CJEU's ruling may be the basis for reopening the proceedings if it leads to a different amount of reimbursement. The Court of First Instance expressly linked the application of that interpretation to the obligation to ensure equal and fair treatment of taxpayers in similar situations. Importantly, the Provincial Administrative Court in Kielce consistently maintains this line presented, m.in, in the judgment of 30 December 2025 (I SA/Ke 465/25).
 

Practical consequences

Energy-intensive plants that are currently in disputes with tax authorities regarding the refund of excise duty (or will continue to do so) may refer to the judgment of the CJEU C266/23 and the case law of the Provincial Administrative Court in Kielce as an important interpretative argument as to the way of understanding the "actual cost of purchased energy" in Article 31d(3) of the Tax Act.  that the claim for a higher amount of reimbursement for the same period, resulting from the inclusion of distribution fees, does not constitute a new claim, but a consequence of the correct interpretation of that provision. In ongoing proceedings, the authorities are obliged to calculate the refund taking into account distribution fees and respect the constitutional principles of equality and tax justice indicated by the court.

Letter dated 19 June 2026, issued by: Director of the National Tax Information, 0113-KDIPT1-2.4012.370.2026.2.KT - CfD contract for electricity and VAT ratio, no ancillary nature

The Director of the National Tax Information Service (hereinafter: "DKIS" or "the Authority") has concluded that trading under an intra-group futures contract for difference (CfD) used to hedge electricity prices is not of an ancillary nature within the meaning of Article 90(6) of the VAT Act. Consequently, it must be taken into account in the calculation of the proportion of VAT deduction referred to in Article 90(3) of the VAT Act.
 

Background to the case

The company, which is an active VAT taxpayer, is primarily engaged in the production and sale of heat and electricity, with revenues from other titles being marginal. Within the capital group, a model is planned in which the Company sells electricity on the stock exchange (spot contracts), and the Parent Company purchases it on the stock exchange for further resale. In order to hedge price risk, the parties plan to enter into an intra-group futures contract for difference (a derivative instrument without physical energy supply, with settlement for difference). The Company considered that it was providing an exempt financial service in this respect and claimed that the turnover from the settlement of the contract was of an auxiliary nature and should not be taken into account in the calculation of the proportion under Article 90(3) of the VAT Act.
 

DKIS position

DKIS considered the Company's position to be incorrect and stated that transactions under a forward contract do not meet the conditions of "subsidiarity" under Article 90(6) of the VAT Act. In the opinion of the authority, concluding forward contracts hedging energy prices is a planned, repetitive and embedded in the business model, constituting a direct, permanent and necessary extension of the core activity in the field of energy sales. The authority emphasized that the fact that there are no separate structures, low involvement of resources or the intra-group nature of the contract does not determine subsidiarity, since the aim is to stabilize the main source of revenue. As a consequence, the turnover under the futures contract must be taken into account in the turnover when determining the VAT ratio.
 

Meaning of the interpretation/judgment

The Interpretation confirms that hedging transactions on derivatives related to the main energy activity can be considered as part of a permanent and necessary expansion of these activities, and not as ancillary transactions. This means that the turnover from such transactions, even if they are financial services exempt from VAT, in principle falls within the denominator of the proportion under Article 90(3) of the VAT Act. The interpretation distinguishes subsidiarity from activities normally inscribed in the taxpayer's business model.
 

Practical consequences

Taxpayers in the energy sector using futures contracts to hedge the price of energy should take into account the turnover from these transactions when calculating the proportion of VAT deduction, as long as they are a fixed element of the business model. In a similar factual situation, they should not treat such transactions as "auxiliary" and exclude them from circulation for the purposes of Article 90(3) of the VAT Act. In practice, this may lead to a decrease in the proportion ratio and a narrowing of the scope of input tax deduction.