Dyrektor Krajowej Informacji Skarbowej v P. S.A.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Kumin
• ECLI: ECLI:EU:C:2025:320
• Docket Number: C-615/23
• Date: 08 May 2025
• Procedure Type: Reference for a preliminary ruling

Provisional text

JUDGMENT OF THE COURT (First Chamber)

8 May 2025 (*)

( Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 73 – Taxable amount – Consideration – Subsidies directly linked to the price of a taxable transaction – Collective public transport services – Compensation paid by a local authority to the service provider to cover the costs incurred – Direct link between the compensation and the services provided )

In Case C‑615/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 16 June 2023, received at the Court on 6 October 2023, in the proceedings

Dyrektor Krajowej Informacji Skarbowej

v

P. S.A.,

THE COURT (First Chamber),

composed of F. Biltgen, President of the Chamber, T. von Danwitz, Vice-President of the Court, acting as Judge of the First Chamber, A. Kumin (Rapporteur), I. Ziemele and S. Gervasoni, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Dyrektor Krajowej Informacji Skarbowej, by B. Rogowska‑Rajda, T. Tratkiewicz and T. Wojciechowski,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Hungarian Government, by M.Z. Fehér and R. Kissné Berta, acting as Agents,

– the European Commission, by O. Glinicka and M. Herold, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 February 2025,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 73 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2 The request has been made in proceedings between the Dyrektor Krajowej Informacji Skarbowej (Director of National Tax Information, Poland) (‘the tax authority’) and the company P. S.A. concerning the taxable amount for value added tax (VAT) purposes in relation to the supply of the collective public transport services which P. intends to provide.

Legal context

European Union law

3 Article 73 of the VAT Directive provides:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

Polish law

4 Article 29a(1) of the ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. of 2004, No 54, item 535), in the version applicable to the dispute in the main proceedings, provides:

‘Subject to paragraphs 2 to 5, Articles 30a to 30c, Article 32, Article 119 and Article 120(4) and (5), the taxable amount shall include everything that constitutes consideration which the supplier of goods or services has obtained or is to obtain on account of a sale from the purchaser, customer or a third party, including grants, subsidies and other sums of a similar nature received which have a direct effect on the price of the goods or services supplied by the taxable person.’

5 Under Article 50(1) of the ustawa o publicznym transporcie zbiorowym (Law on collective public transport) of 16 December 2010 (Dz. U. of 2018, item 2016), in the version applicable to the dispute in the main proceedings (‘Law on collective public transport’):

‘The funding of public utility transport may, inter alia, take the form of:

…

(2) compensation paid to the operator for:

…

(c) the costs it incurs in providing the collective public transport services …’

The dispute in the main proceedings and the question referred for a preliminary ruling

6 P. is active in the field of passenger transport. It intends to conclude, as an operator, contracts for the provision of collective public transport services, as provided for in Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1), and in the Law on collective public transport. The other party to the contract, namely a local authority, will be an organiser of collective public transport within the meaning of that law (‘the organiser’).

7 In the context of the proposed activity, P. will be remunerated, inter alia, by the sale of tickets, the price of which will be determined by the organiser. Since that financing method is not sufficient to cover the costs of that activity, the organiser will pay P. compensation, within the meaning of Article 50(1)(2)(c) of the Law on collective public transport.

8 The contract concluded with the organiser will set out the arrangements for payment of the compensation, the basis of which is the financial shortfall resulting from that activity, and will specify the maximum amount of compensation for a given period.

9 It is in that context that P. applied to the tax authorities for an advance tax ruling on whether the compensation for losses resulting from the supply of collective public transport services constitutes turnover subject to VAT, within the meaning of Article 29a(1) of the Law on the tax on goods and services, in the version applicable to the dispute in the main proceedings.

10 According to P., the compensation does not increase the taxable amount because it does not have a direct effect on the price of the services supplied but constitutes a contribution to all the costs of the planned activity.

11 In an advance tax ruling of 14 May 2019, the tax authority expressed an opinion contrary to that view.

12 P. brought an action against that advance tax ruling before the Wojewódzki Sąd Administracyjny w...