Tax on unrealised profits of individuals in the light of compliance with European Union law and the Constitution of the Republic of Poland

On 12 July 2016 was passed Directive 2016/1164, laying down rules to prevent tax avoidance practices which have a direct impact on the functioning of the internal market[1] (Next: Directive 2016/1164). It provides for the introduction of corporate tax only in the framework of a minimum level of protection of national tax systems and requires Member States to implement the rules to the end 2019 However, the Polish legislator has decided to extend the tax obligation to individuals and to introduce regulations since the beginning of the year 2019, the consequence of which is, inter alia, the rapid mode of legislative action and, as a result, the lack of appropriate expert and social consultations[2] .

Introduction

New regulations, i.e. Article 30da-30di Act on 26 July 1991 on personal income tax[3] , provide for taxation of so-called unrealised profits of natural persons in the event of a change of tax residence and transfer of assets outside the territory of the Republic of Poland, if the value of these assets exceeds 4,000,000 PLN.

This aims at taxing hypothetical capital gains – the so-called "exit tax". The State in which such a profit could be generated shall lose its right to tax it.

In addition to the above-mentioned controversial regulation on the extension of the tax obligation to individuals, the legislator introduced the need to immediately pay tax on hypothetical, yet unearned profits, which may conflict with the fundamental values on which the European Union is based, i.e.

freedom of establishment, freedom of movement of persons and capital. Moreover, the wording of these regulations gives rise to significant doubts as to their compliance with the basic law.

This publication is an analysis of these regulations, in view of their compliance with European Union law and the Constitution of the Republic of Poland[4] .

Taxation of unrealised gains in the light of the regulation of personal income tax

Provisions Article 30da(1) u.p.d.o.f. impose on a natural person a tax on unrealised profits, which amounts to:

• 1) 19% the tax base when the tax value of the asset is determined;
• 2) 3% the tax base — where the tax value of the asset is not determined.

This statement ‘fixing the tax value of the asset’ has been developed under Article 30da(10) u.p.d.o.f., i.e. the tax value of the asset is a value, not previously included in the cost of obtaining revenue in any form that would have been accepted by the taxpayer for the cost of obtaining revenue if the asset had been disposed of by him for payment.

The tax value of the asset shall not be determined where, in accordance with separate provisions, for the purposes of taxing income tax, the cost of obtaining revenue from the payment of the asset is not taken into account. However, Article 30db(1) u.p.d.o.f. provides that provisions Article 30da u.p.d.o.f. shall not apply if the total market value of the transferred assets does not exceed the amount 4,000,000 PLN.

According to Article 30da(2) u.p.d.o.f., tax on income from unrealised profits shall be subject to:

(a) the transfer of an asset outside the territory of the Republic of Poland, resulting in Poland losing in whole or in part the right to tax the proceeds from the disposal of that asset, while the transferred asset remains the property of the same entity;

(b) the change of tax residence by a taxable person subject to an unlimited tax obligation in the Republic of Poland, resulting in Poland losing in whole or in part the right to tax income from the disposal of an asset owned by that taxpayer, in connection with the transfer of his residence to another State.

In the case of a non-economic asset, taxation on income from unrealised gains shall be subject, in accordance with Article 30da(3) u.p.d.o.f., only assets constituting: all rights and obligations in a company which is not a legal person, shares in a company, shares and other securities, derivatives of financial instruments and titles for participation in capital funds (‘personal property’), if the taxpayer is resident in the territory of the Republic of Poland by a total of at least five years in ten-year the period preceding the day of the change of tax residence.

However, according to Article 30da(3) u.p.d.o.f., the transfer of an asset outside the territory of the Republic of Poland includes in particular the situation where:

(a) the taxpayer transfers to its foreign establishment an asset so far linked to economic activity carried out in the territory of the Republic of Poland;

(b) the taxpayer transfers to the State of his tax residence or to a country other than the Republic of Poland in which he conducts business through a foreign establishment, an asset previously linked to economic activity carried out in the territory of the Republic of Poland by a foreign establishment;

(c) the taxpayer transfers to another country all or part of the economic activity carried out so far through a foreign establishment located in the territory of Poland.

This provision contains a non-subscription calculation of the factors that tax authorities should take into account when determining whether an asset has been transferred outside Poland. The use of the term ‘in particular’ gives rise to confusion and impreciseness of this provision of tax law and gives the tax authorities the possibility to apply an extensive interpretation in favour of the tax.

This also means imposing a tax obligation on the basis of a presumption which consequently allows tax authorities to impose a tax on taxable persons on non-statutory grounds.

According to Article 30da(5) u.p.d.o.f., taxing income from unrealised profits as a result of the change of tax residence does not apply to assets which, after the change of tax residence, remain related to the foreign establishment of the taxpayer located in the territory of Poland, which changed the tax residence.

However, according to Article 30da(6) u.p.d.o.f., the day of the transfer of the asset outside the territory of the Republic of Poland is the day preceding the day on which the asset ceases to be assigned to activities carried out in the territory of the Republic of Poland, including through a foreign establishment.

Income from unrealised gains, according to Article 30 da section 7 u.p.d.o.f. represents an excess of the market value of the asset determined on the date of its transfer or on the day preceding the change of tax residence above its tax value.

In the case of property covered by the marital union, it will apply Article 30da(9) u.p.d.o.f., according to which the market value of the assets of the taxpayer covered by the partnership between the spouses is determined by each spouse at half of the market value of those assets.

On the other hand, Article 30da(11) u.p.d.o.f. provides that if the taxable person's taxed income on unrealised profits, the value of an asset, without justified economic reasons, deviates from its market value and as a result does not show income from unrealised profits or shows that income at a low amount, the taxpayer's income and the due income tax on unrealised profits, is determined by the tax authority.

By virtue of the provisions Article 30da(14) u.p.d.o.f. taxpayers are obliged to submit to the tax offices declarations, according to the established formula, of the amount of income from unrealised profits to 7.

on the day of the month following that in which the total market value of the transferred assets exceeded the amount 4,000,000 PLN and pay the tax due by that date.

If after the month in which the total market value of the transferred assets exceeds the amount 4,000,000 PLN, Further assets are transferred, taxpayers are required to submit a declaration to 7. on the day of the month following the month in which the components are transferred and payment of the duty due within that period.

Analysis of compliance of regulations on taxation of unrealised profits of individuals with European Union law

In order to ensure a functioning internal market, it is necessary, inter alia, for Member States to comply with their obligations to prevent tax base erosion and to transfer profits generated in the territory one Member State to another Member State.

However, the extension of the tax obligation on taxing so-called unrealised profits to individuals, while at the same time forcing the immediate payment of that tax, is, in the opinion of the authors, a violation of the fundamental freedoms guaranteed by the Treaty on the Functioning of the European Union[5] (hereinafter the TFEU), i.e.

the freedom of movement of persons and capital and their detailed freedom of establishment. The existence of these freedoms, which are the legal foundation of the EU, is linked to Article 18 The TFEU prohibits any discrimination on grounds of nationality.

However, according to the provisions Article 26(2) TFEU, the internal market covers an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.

Freedom of movement of persons directly guarantees Article 21(1) the TFEU that each citizen of the Union has the right to free movement and residence in the territory of the Member States, and Article 45(1) TFEU, which ensures freedom of movement for workers within the EU.

In turn Article 49 TFEU provides that restrictions on the freedom of establishment of citizens one a Member State in the territory of another Member State is prohibited. This prohibition also includes restrictions on the establishment of agencies, branches or subsidiaries by nationals of a Member State established in the territory of another Member State.

However, in the case of freedom of movement of capital, direct application applies Article 63(1) TFEU, which must be interpreted in the light of the provisions Article 65 TFEU in such a way that Article 63 The TFEU does not affect the right of Member States to apply the relevant provisions of their tax law, which treat taxpayers differently because of their different residences or investments in capital.

However, the exception provided for under Article 65(1) The TFEU itself is limited by section 3 that Article, which provides that national measures laid down under Article 65(1) The TFEU should not constitute arbitrary discrimination or a disguised restriction on the free movement of capital and payments within the meaning of Article 63 TFEU[6] .

Consequently, the derogation from the basic principle of free movement of capital must be interpreted strictly. It cannot therefore be interpreted as meaning that any tax legislation providing for different treatment of taxable persons on grounds of their place of residence is automatically compatible with the Treaty.[7] .

The Treaty will be compatible with Member States' tax laws which treat similar entities in the same way and which will not treat any entity subject to Community law on grounds of nationality or place of business in the EU internal market.

The European Union, despite the introduction of minimum rules on the protection of national tax systems against aggressive tax optimization, obliges Member States to introduce stricter rules than foreseen in the Directive Regulation (EU) 1164/2016, to respect the prohibition of discrimination and the fundamental freedoms which the EU guarantees in the TFEU.

In the event of confrontation Article 18 and Article 26(2) TFEU Article 30da(1)(4)(6)(10)(11)(14) u.p.d.o.f., i.e. the rules on taxation of unrealised profits of individuals are directly discriminated against, i.e. the different treatment of the same legal entities, in the same or similar situation, i.e.

in this case the establishment of different rules in comparable cases.

Non-compliance also occurs in Article 49 TFEU Article 30da(1)(4)(10)(14) u.p.d.o.f. The above provisions of u.p.d.o.f.

infringe the freedom of establishment by introducing different tax treatment due to the location of a particular economic activity, as a higher tax burden discourages certain actions in a territory where there will be a need to bear more fiscal burdens than in the same actions in the home country.

A collision of regulations Article 30da(1)(4)(6)(7)(14) also occurs in the case of free movement of persons and workers, guaranteed Article 21(1) and Article 45 TFEU.

The Polish legislature, extending the tax obligation also to individuals, does not take into account the situation relating to, for example, the labour market[8] or a change of residence to another Member State, while the taxable person who changes his residence in the territory of the Republic of Poland is not subject to such a tax.

Taxing assets at such a change of place of residence will constitute a restriction of freedom of movement within the territory of other Member States, as the taxpayer will have to dispose of part of the assets in the absence of a financial reserve in order to pay the tax on unrealised profits.

It should also be noted that the immediate obligation to pay the tax on unrealised profits is a liability for the taxpayer's assets and not his income, as the possible profit that the taxpayer could obtain may never be made. In the case of Treaty regulations guaranteeing freedom of movement of capital, i.e.

Article 63(1) in conjunction with Article 65 The TFEU contradicts the rules contained under Article 30da(1-4), 6, 7, 14 u.p.d.o.f. Article 65(1) is without prejudice to the right of Member States to apply the relevant tax legislation, which treats taxpayers differently on grounds of different residence or capital investment.

However, Article 65(1) The TFEU is limited by section 3 that Article, which establishes that national regulations should not constitute arbitrary discrimination or a disguised restriction on the free movement of capital.

This is the case in the case of asset allocations in the EU market, discouraging investors and reducing potential investments.

Moreover, the free movement of capital guaranteed Article 63(1) The TFEU is affected by the mere fact of taxing unrealised profits, as it leads to the loss of assets of the taxpayer, while discouraging him to change his residence outside Poland.

This argument is confirmed by the case law of the Court of Justice of the European Union (hereinafter the TEU), which has repeatedly expressed its views on the introduction by Member States of rules on the taxation of unrealised profits of individuals in the event of a change in tax residence or in the case of a transfer of assets to another country, resulting in the country from which these assets are transferred losing its right to tax the profits of their taxed disposal.

Judgment of the Court of Justice of 11 March 2004[9] concluded that ‘Article 52 Treaty[10] is one from the basic provisions of Community law (...).

Under this provision, freedom of establishment for citizens one a Member State in the territory of another Member State shall include the right to take up and pursue a self-employed activity and to establish and manage undertakings under conditions laid down for its own nationals by the law of the State in which such activity is carried out.’ In that judgment, the Court pointed out that a taxable person who intends to change a tax residence outside the territory of France is, under the provisions of French law at the time, subject to additional tax obligations, i.e.

the taxation of hypothetical profits which it may obtain in the future from the disposal of its assets to a person who remains a tax resident of France. The taxpayer would therefore be subject to taxation, given the transfer of his residence, in relation to profits not yet obtained.

On the other hand, in the event that the taxpayer remained a tax resident in France, he would be subject to that tax only in the event of the sale of his assets and thus of real income.

The CJEU also stressed in that judgment that ‘the transfer of a natural person's residence for tax purposes outside the territory of a Member State does not in itself imply tax avoidance.

Tax evasion must not result generally from the fact that the tax residence of a natural person has been transferred to another Member State and cannot justify the application of a tax measure which would jeopardise the exercise of the fundamental freedom guaranteed by the Treaty.’

Another example is the judgment of the Court of Justice of 7 September 2006[11], in which he held that ‘a Community citizen who, upon change of residence, resides in one Member State which holds all shares in companies established in another Member State may rely on Article 43 EC (current Article 49 TFEU – car.)’ The Court also noted that ‘Article 43 The EC must be interpreted as preventing a Member State from introducing a system for the taxation of capital gains in the event of a transfer by a taxable person of his place of residence outside that Member State, such as a system in the case at issue in the main proceedings, which makes the granting of a deferred period for payment of that tax subject to the establishment of securities and which does not take full account of the impairment which may occur after the change of residence of the person concerned, not taken into account by the host Member State.’

Moreover, in the judgment of the Court of Justice of 12 July 2012[12] The Court pointed out that ‘Provisions prohibiting or discouraging nationals of a Member State to leave their country of origin in order to exercise their right of free movement therefore constitute a restriction on that freedom, even if they apply independently of the nationality of the workers concerned (...), should be considered as restrictions on the freedom of movement to prohibit, restrict or reduce the attractiveness of the exercise of that freedom.’ It should also be noted that the high requirements laid down by the Polish legislator, in order to be able to distribute the tax liability on profits not realised per instalment, can contribute to disputes with the European Union.

This can be confirmed in the judgment of the Court of Justice of 14 September 2017[13], on the freedom of establishment, the movement of capital and the obligation to immediately pay tax on unrealised capital gains under trust tax regulations in the UK.

The CJEU indicated that ‘only in the event of a transfer of the seat of the trust's head office to a Member State other than the United Kingdom, the legislation applicable in the main proceedings provides, after first, taxation of unrealised capital gains resulting from the increase in the value of assets held in trust for this transfer and after second, the obligation to immediately pay the tax chargeable to those profits.

This is not the case with a similar transfer of headquarters within the country."

It should also be noted that, due to the convergence of regulations on legal persons and individuals, if there is a contradiction in corporate income tax with European law, the same convergence will be applied on the basis of regulations on similar taxation of individuals.

For this reason, it is worth, inter alia, to cite the judgment of the Court of Justice of the European Union of 29 November 2011[14]. The case concerned taxation of unrealised capital gains related to the assets of the transferring company for tax purposes to another Member State.

Provision of Article TFEU 49, which guarantees the freedom of establishment of citizens one a Member State in the territory of another Member State shall prohibit any restriction or obstruction that could undermine that freedom, including tax restrictions.

In that judgment, the TEU took the view that ‘A company formed in accordance with the law one a Member State which transfers its registered office to another Member State, without prejudice to its status as a company first Member State may rely on Article 49 TFEU to challenge the legality of taxation imposed on it by first the Member State for that transfer.

... Article 49 The TFEU must be interpreted as contrary to the legislation of a Member State which imposes the immediate collection of tax on unrealised profits relating to the assets of the company transferring its registered office to another Member State already at the time of that transfer.’

In the case of fundamental freedoms guaranteed by the Treaty, it is also worth quoting the judgment of the Court of Justice of the European Union of 7 March 2013[15], in which he took the position that "Article 45 The TFEU expresses the fundamental principle that Union action includes, inter alia, the abolition of obstacles to the free movement of persons (...).

Union law precludes any national provision which, even if applied without discrimination on grounds of nationality, may distort or render less attractive the exercise of fundamental freedoms guaranteed by the Treaty by Community citizens.’ Another example is the judgment of the Court of Justice of 21 December 2016[16], in which he considered that ‘Provisions prohibiting or discouraging nationals of a Member State from leaving their country of origin in order to exercise the right to free movement or freedom of establishment therefore constitute a restriction of that freedom, even if they apply independently of the nationality of the persons concerned (...).

Moreover, according to settled caselaw, any provisions which prevent or impede the exercise of that freedom should also be regarded as restrictions on the free movement of persons and freedom of establishment.

(...) Therefore, while taxable persons who continue to reside in the Portuguese territory benefit from the transfer of capital gains resulting from the exchange of shares until the disposal of the shares received during the exchange, taxable persons who transfer their residence outside the Portuguese territory are obliged to pay immediately the capital gains tax resulting from the transfer.

This difference in treatment concerning the time when the contested capital gains are taxed has an adverse effect on the taxpayer's monetary resources, who wishes to move his place of residence outside Portugal, to the taxpayer who retains his place of residence in that territory.

While this one first it becomes, for the sole reason of such a transfer, liable to pay capital gains tax which has not yet been realised and therefore does not have them, second it will have to pay the tax due only when the capital gains have actually been realised and to that extent."

A similar position was taken by the EU Court in its judgment with 23 November 2017[17], in which he ruled that "Article 49 The TFEU requires the abolition of restrictions on freedom of establishment. Even if, according to their content, the provisions of the TFEU relating to freedom of establishment are intended to ensure the exercise of national treatment in the host Member State, they also object to the fact that the Member State of origin impedes its national or company established in accordance with its legislation, the exercise of its activities in another Member State.’

In conclusion, the rules on the taxation of unrealised profits of individuals are contrary to Union law and the fundamental freedoms guaranteed by the TFEU, i.e. freedom of establishment, movement of capital, persons and workers.

The Polish legislator, extending the obligation to tax unrealised profits to individuals and introducing an obligation to pay tax immediately, does not take into account the experience and practices of other countries of the European Union, which is confirmed in the above-mentioned, comprehensive case law of the TEU.

Analysis of compliance of regulations on taxation of unrealised profits of individuals with the Constitution of the Republic of Poland.

First of all, it should be pointed out that the editorial Article 30da(4) u.p.d.o.f., which introduced the Act of 23 October 2018 the amendment of the Personal Income Tax Act, the Corporate Income Tax Act, the Act – Tax Ordinance and some other laws[18], gives a field of interpretation extending the tax obligation in favour of the tax.

This provision contains a non-subscriptional calculation of the factors to be taken “in particular” into account when assessing whether the taxpayer actually transfers an asset outside the territory of the Republic of Poland.

In accordance with the Court of Constitutional Court’s common case law (hereinafter the Constitutional Court), the self-ambiguity and imprecise wording of the provision of tax law by the legislator, which gives room for interpretation extending the tax obligation in dubio pro fisco, should be considered incompatible with Article 2 with regard to Article 217 Constitution of the Republic of Poland.

All the more reason to consider the non-constitutional application of such an extension in practice.

In support of the above, the judgment of the Constitutional Tribunal of 22 May 2002[19], in which he stressed that "the proper correctness, precision and clarity of the rules is of particular importance when it comes to the protection of constitutional rights and freedoms of man and of the citizen, and when imposing danin duties on them".

In turn the CCC in the judgment of 11 May 2004[20] He said that: “As a violation of constitutional requirements, such vague and vague formulation of a provision should be assessed, which creates uncertainty for its addressees about their rights and obligations.

It creates an overly broad framework for authorities applying such a provision, which must in fact replace the legislator with matters which are not clear and vaguely regulated.

The legislator cannot, by vaguely formulating the text of the provisions, leave the authorities to exercise excessive freedom in practice to determine the subject matter and the constitutional limitations of the individual.

The CCC argues that exceeding a certain level of ambiguity of the legal provisions may constitute a self-evident indication of their incompatibility (...), as expressed under Article 2 Constitution Rule of Law’.

This regulation, as a result of the unclear and inaccurate language structure and the excessive scope of the ruling interference of authorities applying tax law in the sphere of constitutional rights and freedoms of the individual, violates the principle of citizens' trust in the state and the law which comes from Article 2 in conjunction with Article 217 Constitution of the Republic of Poland.

For incompatible with Article 2 with regard to Article 217 The Constitution of the Republic of Poland should be recognised Article 30da(8)(1) and Article 30da(7) u.p.d.o.f., according to which the market price is set at the date of transfer of the asset and not at the date of disposal, and the taxpayer does not obtain any asset which could be considered as income.

The legislature arbitrarily assumes that the assets will be disposed of, not considering that such a situation may never arise. In the case of a natural person, the obligation to pay income tax should be closely linked to the obtaining of a specific property benefit[21].

Obliging a taxpayer to pay a tax which is devoid of real income, which the taxpayer disposes of, may also sometimes result in the need to sell the property in order to satisfy the tax claims.

Tax discrimination on the basis of the location of specific economic activity (transfer of assets abroad) would also constitute an infringement Article 2 the Constitution of the Republic of Poland, i.e.

the principles of a democratic rule of law and social justice, since the greater tax burden undoubtedly discourages certain actions in a territory where there will be a need for more fiscal burdens than in the same actions in the home country.

Tax discrimination in such a way would also constitute an infringement of the provisions Article 84 Constitution of the Republic of Poland, establishing the principle of universality of taxation. Natural persons transferring their residence outside the territory of the Republic of Poland would bear a higher tax burden than persons changing their residence in that territory. Different taxation of individuals on grounds of their place of residence or place of business would undermine the universality of taxation.

Provision Article 32 The Constitution of the Republic of Poland provides for equality between all citizens before the law and for the prohibition of economic discrimination for any reason, in order to protect the rights of those individuals; therefore, the difference in taxation of natural persons whose legal situation is similar constitutes a violation of the above Article of the Constitution of the Republic of Poland.

This article uses the expression ‘for any reason’, so this should be understood as all situations which may give rise to a difference in the treatment of individuals whose situation is the same or similar. It should also be noted that Article 30 da section 14 u.p.d.o.f.

requires individuals to pay tax on unrealised profits within the deadline 7 days, which also constitutes a violation Article 2 in conjunction with Article 217 Constitution of the Republic of Poland.

As already mentioned in the case of assets which will be disposed of later than the transfer or not disposed of at all, the legislator introduces a tax liability on fictitious income, i.e. one which has not actually occurred.

This regulation also violates Article 52(2) The Constitution of the Republic of Poland, which guarantees freedom to leave the territory of the Republic of Poland, and the regulation which imposes a tax on a natural person on a fictional income, if that person does not have a sufficient financial reserve to pay it and is therefore forced to dispose of part of the property for payment of the tax, constitutes a significant restriction on the freedom of movement and settlement also within the EU.

It is also a violation of the principle of freedom to leave the territory of the Republic of Poland, which it explicitly states Article 52(2) Constitution of the Republic of Poland.

_______________________________

1 Official Journal of the European Union L, No. 193 to 19 July 2016

2 Exit tax – between EU requirements and harmful overregulation, Staszica Institute analysis. Publ.: http://instytutstaszica.org/wp-content/uploads/2018/10/Exit-tax-mi%C4%99dzy-unijnymi-wymogami-a-szkodliw%C4%85nadregulacj%C4%85.pdf

3 Act of 26 July 1991 on income tax on individuals, i.e. Journal of Laws of 2018, item 1509 as amended, hereinafter referred to as u.p.d.o.f.

4 Constitution of the Republic of Poland from 2 April 1997, Journal of Laws of 1997, item 483 as amended, hereinafter referred to as ‘the Constitution of the Republic of Poland’.

5 Consolidated version: Official Journal of the European Union C, No. 327/47 to 26 October 2012; https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX :12012E/TXT&from=GA

6 Cf. Judgment of the Court of Justice of 17 October 2013, Yvonne Welte v Finanzamt Velbert, C-181/12, point 43.

8 A key IT manager, who earns part of the salary in a given currency, and a part is paid to him in the form of a company's shares (e.g. a newly established start-up) receives a better competitive offer from a company that is based in another country. Therefore, in order to be able to accept the proposal of a competitive company, the employee must have a financial reserve to pay the tax on unrealised profits, i.e. from start-up shares and any other transferred assets.

9 Judgment of the Court of Justice of 11 March 2004, Hughes de Lasteyrie du Saillant v Ministère de l’Économie, des Finances et de l’Industrie, C-9/02.

10 This is the current provision Article 49 TFEU.

11 Judgment of the Court of Justice of 7 September 2006, N v Inspector van de Belastingdienst Oost/cantoor Almelo, C 470/04.

12 Judgment of the Court of Justice of 12 July 2012, European Commission v Kingdom of Spain, C-269/09.

13 Judgment of the Court of Justice of 14 September 2017, Trustees of the P Panayi Accumulation & Maintenance Settlements v Commissioners for Her Majesty’s Revenue and Customs, C-646/15.

14 Judgment of the Court of Justice of 29 November 2011, National Grid Indus BV v Inspector van de Belastingdienst Rijnmond/cantoor Rotterdam, C 371/10.

15 Judgment of the Court of Justice of 7 March 2013, Aldegonda van den Booren v Rijksdienst voor Pensioenen, C-127/11. 16 Judgment of the Court of Justice of 21 December 2016, European Commission v Portuguese Republic, C-503/14.

17 Judgment of the Court of Justice of 23 November 2017, the procedure initiated by A Oy, C-292/16.

18 Journal of Laws of 2018, item 2193.

19 Judgment of the Constitutional Tribunal of 22 May 2002, reference no.. K 6/02, publ. Journal of Laws of 2002, item 715.

20 Judgment of the Constitutional Tribunal of 11 May 2004, reference no.. K4/03, publ. Journal of Laws of 2004, item 1288.

21 R. A. Relapse, International tax avoidance and its regulations in Polish law, Issue II, Warsaw 2018, p. 496 and n.