As we learn from press reports (P. Dudek, Zwolnienie z akcyzy to nie zwrot zapłaconego podatku (English: Exemption from excise duty is not a refund of paid tax), “Dziennik Gazeta Prawna”, 24 August 2020), the Provincial Administrative Court (WSA) in Warsaw dismissed, by its judgment of 17 August 2020 (V SA/Wa 1906/19) an action brought against a tax ruling concerning the effects of redemption of a certificate of origin of energy in the context of the change in the excise duty rate on electricity. Until the end of 2018, the rate was 20 PLN/MWh, and from 1 January 2019 it was reduced to 5 PLN/MWh.
In 2019, energy companies faced the dilemma of what amount of the excise duty exemption will result from redemption of a certificate of origin of “green” energy produced before 2019.
It seems logical that since “green” energy is exempt from excise duty and the rate of this duty at the time of production of that energy is 20 PLN/MWh, the exemption, when utilised, should result in the taxpayer’s savings of PLN 20 per megawatt hour. The change of excise duty rates, resulting in a limitation of the exemption, in the absence of transitional provisions, and one that came as a surprise to the taxpayer, should have been assessed as contrary to the rule of Article 2 of the Polish Constitution and the principle of the democratic state ruled by law contained in it, and the taxpayer could not take any actions to counteract the possible loss of a significant portion of the exemption. (see: the WSA in Gliwice in the judgment of 27 November 2019 III SA/Gl 769/19; a similar approach was taken by the WSA in Rzeszów in its judgment of 8 October 2019 I SA/Rz 516/19).
The WSA in Warsaw took a different stance in the above judgment of August. It follows from the oral reasons quoted after P. Dudek (there is no written statement of reasons yet) that: the mechanism for utilising the exemption set forth in Article 30(1) and (2) of the Excise Duty Act has not been changed since 1 January 2019. – Only the rate was changed, so since the exemption consisted in a reduction of excise duty due for subsequent settlement periods, the rate as applicable in the period for which the excise duty is settled should be considered as the right one. Moreover, Article 30(1)and (2) of the Excise Duty Act implements Directive 2003/96/EC, which does not require EU countries to introduce tax exemptions for energy from renewable sources at all, but only allows that option and states that the exemption may be either full or partial.
We hope that the claimant has applied for the statement of reasons for the judgment and we look forward to its publication so that we can address the holdings of the court.
