Abstract

The article analyses the evolution and interpretation of the Polish real estate tax exemption for railway infrastructure, focusing on the 2017-2021 period, when the regulation referred to cadastral plots forming part of railway infrastructure rather than to land “occupied” by it. This change led to a broad judicial practice recognising the exemption for entire plots where any element of railway infrastructure was located, which later triggered doubts as to potential unlawful state aid and resulted in the preliminary reference to the CJEU in case C-453/23 Prezydent Mielca. The Court held that the exemption does not, in principle, grant a selective advantage and thus does not constitute prohibited state aid, but left room for national courts to assess specific cases. Recent case law of the Supreme Administrative Court, however, has reintroduced the concept of limiting the exemption to “occupied” parts of land, prompting a motion for a seven-judge resolution (III FSK 1020/23) and raising concerns about legal certainty, reformatio in peius and the risk of judicial law-making. The author argues that, in the 2017-2021 legal framework, there is no sufficient basis to narrow the exemption to occupied land and that any abuse should be addressed through anti-avoidance instruments rather than by reinterpretation of clear statutory wording.