Management board members' liability for company tax arrears has long remained one of the most acute risks associated with holding managerial positions. Although the Court of Justice of the European Union (CJEU) ruling from early 2025 announced a significant easing of this liability, the practice of Polish authorities and courts remains largely conservative.
It is therefore worth taking a closer look at what has actually changed following the CJEU judgments and what management board members should pay particular attention to in their current practice.
The CJEU sets the direction, but does not change everything
In early 2025, the CJEU issued two important judgments concerning the liability of management board members for company tax arrears (Cases C-277/24 and C-278/24). In both judgments, the Court emphasized two key standards arising from EU law:
- A management board member must have a real opportunity to challenge the existence and amount of tax arrears , even if they have been previously established in proceedings conducted against the company.
- A management board member should be able to effectively demonstrate his or her absence of fault , in particular by demonstrating that he or she exercised due diligence in managing the company's affairs.
This thesis was in clear contradiction with the previous national practice, in which the liability of management board members was in many cases almost automatic, and the grounds for its exclusion were illusory.
Practice to date – why was the defense a sham?
In practice, matters concerning the tax liability of management board members often followed a similar pattern. A company's tax arrears were determined in proceedings conducted without the management board member's involvement, often after their resignation or dismissal. Subsequently, often just before the statute of limitations expired, the tax authorities addressed the liability decision directly to the former manager.
The management board member had no real influence on determining the amount of arrears or on the ability to demonstrate that he was not at fault for failing to timely file the bankruptcy petition. The "no fault" premise was interpreted in an extremely restrictive manner and, in practice, limited to absolutely exceptional situations.
What has actually changed after the CJEU judgments?
The first months of application of the above-mentioned rulings show that a partial change has indeed taken place.
Polish administrative courts are increasingly accepting the position that a management board member may challenge findings regarding tax arrears made during proceedings against a company. However, it is also emphasized that such a defense is only effective if the allegations are raised during the proceedings before the tax authority. Failure to act early may prevent effective legal defense.
This means one thing: passively waiting for the decision of the body is particularly risky today.
The biggest problem remains unresolved – “no guilt”
The situation is much worse as regards the second key element of the CJEU judgments, i.e. the interpretation of the “no fault” requirement for failing to file a bankruptcy petition.
Although the CJEU clearly indicated that a management board member should be able to prove that he acted with due diligence, the prevailing approach in Polish practice is still that the absence of fault occurs only in extreme situations, completely beyond the manager’s control.
Meanwhile, the standard of "all due diligence" should not be equated with the obligation of absolute infallibility. The assessment should be based on whether, while maintaining realistic market standards, the management board member could have known about the company's actual financial and tax situation and whether they had an objective possibility of filing for bankruptcy earlier.
The first judgments are already appearing which recognise the need for a more balanced assessment, but it is still not possible to speak of a permanent change in the jurisprudence.
Practical conclusions for board members
From the perspective of business practice, important conclusions can be drawn from this:
- the liability of management board members for tax arrears remains a real and serious risk,
- active defense should begin already at the stage of proceedings before the tax authority,
- Documenting due diligence in the conduct of company affairs is crucial,
- CJEU judgments open up new arguments, but do not guarantee automatic protection.
Only further unification of judicial practice will make it possible to assess whether the standards resulting from EU law will be fully implemented into the Polish tax law system. (in the Journal of Laws) may differ from the government's initial proposal.
This article is for informational purposes only and does not constitute legal advice.
The law is current as of December 19, 2025.
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