General interpretation by the Ministry of Finance: how to understand the CJEU rulings on joint and several liability?

On 29 August 2025, the Minister of Finance and Economy issued a general interpretation regarding the practical application of the Tax Ordinance (Ordynacja podatkowa) concerning the liability of management board members. This interpretation responds to questions raised after the Court of Justice of the EU (CJEU) judgments in Case C‑277/24 Adjak and Case C‑278/24 Genzyński on how those conclusions should be implemented in Polish practice, although expectations were higher.

Purpose of the interpretation

The goal is to ensure a uniform application of the rules. The interpretation is addressed both to tax authorities and to management board members and other individuals who may bear liability for a company’s tax debts. It is intended to align Polish practice with EU standards and to confirm the limits set by the CJEU between a board member’s right of defence and the public interest and the company’s interest. If a board member follows this general interpretation, their tax position should be protected.

Liability of board members – basics

Under Article 116 of the Tax Ordinance, board members of capital companies (e.g., limited companies) are jointly and severally liable for the company’s tax arrears if enforcement against the company’s assets fails. A board member can avoid liability only if the member:

• • points to company assets that can cover a significant part of the arrears,
    
    
  • or shows that an insolvency application (bankruptcy petition) was filed in due time (or restructuring was started), or that not filing was not the member’s fault.

A discussion of this liability structure and the above CJEU judgments has already appeared on our blog: “Important judgment on joint and several liability.”

Key points from the interpretation

1) A decision issued to the company does not have prejudicial effect in the case against a board member

A decision against the company is not automatically binding in a case against a board member and there is only one piece of evidence in that case. A board member may ask the authority to take evidence against the factual or legal findings in that decision. The Minister also confirmed that, although a board member is not a party to the company’s tax case, the member may challenge the factual determinations and legal assessment they are used to impose liability on the member.

This applies even when an administrative court has upheld the assessment issued to the company.

In the board member’s proceedings, the member can:

• • contest the existence and amount of the company’s tax liabilities,
    
    
  • submit evidentiary motions (including counter evidence),
    
    
  • point out an incorrect legal qualification made by the authority in the company’s case.

Generally, this right to contest the company findings mainly helps former board members who could not take part in the company’s tax assessment proceedings and could not submit explanations or evidence then. Exceptionally, these conclusions may also apply to people who were board members during the company’s assessment proceedings.

At the same time, the interpretation stresses that this right to challenge the company’s findings does not give a former board member the right to join the company’s assessment proceedings or to appeal the company’s assessment decision. The defence takes place in the board member’s own case and aims to challenge the findings used there, not the company decision itself.

Importantly, the CJEU conclusions apply not only to VAT arrears cases, but to any tax.

2) Access to the case file of the proceedings against the company

The right of defence is not real without access to the evidence collected in the company’s assessment proceedings. The Ministry confirmed that a board member should be able to see the company’s file to the extent needed to challenge the factual and legal findings (kept to the minimum necessary).

How this “minimum necessary” standard will be implemented remains unclear, and the Minister’s position may lead to an overly strict approach by tax authorities and further disputes. It is difficult to expect a board member to identify specific documents for access without knowing the contents of the case file.

This access right is not absolute and may be limited to protect:

• • the public interest,
    
    
  • the company’s trade secrets,
    
    
  • third‑party rights.

The Minister also said that sharing the file does not breach tax confidentiality; rather, it is required by EU law.

3) How to be released from liability

The interpretation also clarifies how a board member can be released from liability.

The Ministry confirmed that:

• • filing an insolvency application in due time is enough to exclude liability, no matter how many creditors there are, and even if the application was not effective under insolvency law or proceedings did not start,
    
    
  • timing is key, and a late application does not protect the member,
    
    
  • a management board member may point to objective obstacles that prevented a timely application, if the member acted with due diligence (due care) expected from a board member.

However, the Minister did not address the CJEU’s view that the mere occurrence of tax arrears during a member’s term does not automatically trigger a need to file for insolvency. This view conflicts with prior administrative practice and was omitted, leaving no guidance on when precisely a petition must be filed to obtain a release from liability. The interpretation also states that liability is not strict; however, there is a strong presumption of fault, and in the event of irregularities the board member must prove that they acted lawfully and with due diligence.
The Minister also did not provide concrete examples of when “no fault” in failing to file could be established, nor examples of the “due diligence” referred to by the CJEU.

The Minister also did not give concrete examples of when “no fault” in not filing could be found, nor examples of the “due diligence” referred to by the CJEU.

Practical impact

Board members now have confirmation of tools to defend their interests, including the right to submit counter‑evidence and to request access to the company’s case file. This should also push tax authorities to change past practices where such steps were refused and the company’s assessment decision was treated as having prejudicial effect, thereby restricting the fundamental right of defence.

Takeaways for board members

• • The conclusions from Adjak and Genzyński cases apply to all joint and several liability cases, not only to VAT cases.
    
    
  • Board members should have a real chance to defend themselves and to challenge the authority’s findings made in the company’s case, and a decision issued to the company cannot automatically shift the company’s tax debts to former board members, and access to the company’s case file is therefore important.
    
    
  • Boards should keep proper documentation of all transactions and act with due diligence in tax matters, and it may help to keep documents on the Company’s financial position and on the absence of grounds to file for insolvency.
    
    

Let’s safeguard tax compliance together

Please feel free to get in touch – our team of experts will help assess how the conclusions from the general interpretation may affect the organization, and will also assist with:

• • setting tax procedures that reduce risks for board members and persons responsible for tax settlements in companies,
    
    
  • proper representation in joint and several liability proceedings for tax debts,
    
    
  • training and preparation for possible proceedings,
    
    
  • effective rules to reduce exposure to other types of liability (e.g., penal fiscal liability).