Stores the user's cookie consent status for the current domain.
Tax Alert 12/2025: Excise duty exemption for energy from renewable sources according to the rate applicable on the date of production – judgment of the extended panel of the Supreme Administrative Court
On 22 September 2025, the Supreme Administrative Court (NSA), sitting in an extended panel of seven judges, passed a judgment favourable for the taxpayer (case file No. I FSK 1519/21), in which it ruled that, for the purposes of calculating the excise duty exemption for electricity generated from renewable energy sources (RES), the decisive rate is the excise duty rate applicable at the time energy was produced, and not the rate valid at the time of the redemption of guarantees of origin issued for that energy (so-called “green certificates”).
Accordingly, the extended panel of the NSA confirmed the position previously expressed by the Court in several earlier judgments delivered by ordinary panels.
Consequently, it may be concluded that the present ruling resolves a long-standing dispute regarding settlements for the so-called “transitional period”, following the reduction of the excise duty rate from PLN 20/MWh to PLN 5/MWh as of 1 January 2019.
Taxpayers and their advisors consistently argued that the exemption should be calculated according to the rate applicable on the date of energy production - since the right to an exemption of a specific value arises on that date, the subsequent redemption of guarantees of origin should not affect that value. On the other hand, the tax authorities took an opposing view, claiming that as the exemption is “realised” through a reduction of excise duty due in later settlement periods, the rate applicable on the date of such realisation (i.e. after 1 January 2019 — PLN 5/MWh) should apply.
The NSA endorsed the former approach, noting that the redemption of guarantees of origin - which by definition always occurs at a later stage (often many months after energy has been generated and the certificate issued) - serves solely as a formal condition for settlement. By contrast, the amount of the exemption is value-based and derives from the provisions in force on the date of energy production. In practical terms, this means that electricity generated from RES before 1 January 2019 benefits from an excise duty exemption calculated at the rate of PLN 20/MWh, even if the redemption of the guarantee of origin occurs after that date, when the excise duty rate had already been reduced to PLN 5/MWh.
We note that, from the perspective of settlement practice applicable to energy sector entities and industrial consumers fulfilling RES obligations, the judgment, although not having the status of a resolution, may serve as a significant persuasive authority for administrative courts and tax authorities. It paves the way for reviewing excise duty settlements for periods after 31 December 2018 with respect to RES energy produced before that date and, where an understatement of the exemption (and thus an overstatement of tax) is identified, for filing corrected returns and applications for confirmation of an overpayment.
For the success of such actions, it is crucial to ensure proper documentation of the date of energy production and its connection to the relevant guarantees of origin.