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Energy clusters in Poland and their VAT status

In the face of the skyrocketing energy costs and the ever wider availability of renewable energy sources in Poland, we can see a sharp increase of interest in energy clusters. However, this concept is relatively new, so there are few studies of this mechanism despite its business attractiveness.

This article starts a series of publications in which RӦDL will dive into tax and legal aspects of energy clusters – a local vehicle of energy transition. You are welcome to follow the series.

In this text we will look at the VAT aspects of an energy cluster.

What is an energy cluster and why is it attractive?

An energy cluster is defined in Article 2(15a) of the RES Act as an agreement among local entities that produce, store, balance demand, distribute or trade in electricity, among other things.

Parties to an energy cluster must include at least:

a local government unit, or
an incorporated company established pursuant to Article 9(1) of the Public Services Act by a local government unit with its registered office in the energy cluster’s operating area, or
an incorporated company which holds more than 50% in the share capital of the company mentioned in item (b) or more than 50% of the number of shares.

An energy cluster is set up to bring economic, social or environmental benefits to its members or to increase flexibility of the power grid.

Energy clusters are growing in popularity mainly due to an opportunity to reduce energy costs for its members.

At present, energy cluster members are exempt from the RES fee and the cogeneration fee. This is particularly important in view of the significant hikes of those fees announced by the Energy Regulatory Office from 1 January 2026.

Energy clusters are also in demand thanks to the opportunity to reduce distribution fees, which account for a considerable share of the energy bill. How much is saved on the distribution fees depends on the amount of electricity produced from renewable sources by the cluster member. If the cluster members feed the volume of electricity equal to the amount of electricity they consume, the distribution system operator charges only 75% of the distribution fee which depends on the volume of electricity taken. This translates into real savings.

However, keep in mind that the preferences are reserved only for clusters entered in the cluster register kept by the President of the Energy Regulatory Office. There are currently twelve entries made in the last two years.

Who is liable to VAT? Examples that may caught you by surprise

There is a question about the tax status of an energy cluster. Is an energy cluster a taxable person?

According to the VAT Act, a taxable person means every entity that:

is a legal person, a non-corporate body, or a natural person, and
independently carries out a business activity referred to in Article 15(2) of the VAT Act, whatever the purpose or results of that activity.

The definition of a taxable person is autonomous, which means that it stands independent of definitions in other statutes and a non-corporate body may be liable to VAT just as well.

Practice shows that such unusual examples do occur.

A civil-law partnership is but one less obvious example of an entity that is a taxable person.

Under civil law, a civil-law partnership has no legal personality, no legal capacity and no capacity to perform legal acts. Nevertheless, a civil-law partnership as a structure operating using joint assets of the partners is a stand-alone taxable person under VAT law.

The following criteria, developed through European and domestic case law, are decisive for civil-law partnership’s classification as a taxable person:

joint assets and representation by all partners;
liability and economic risk inherent in the business.

An even more interesting example is the fruit of the newest case law that allows treating a married couple who have statutory joint ownership as a taxable person.

The Court of Justice of the European Union in its judgment of 3 April 2025, case C-213/24, stated that within the framework of a sales transaction treated as a business activity in the meaning of the VAT directive, Article 9(1) does not prevent a conclusion that the statutory joint ownership between spouses who are co-owners is a taxable person who independently carries out business if the spouses appear to third parties to be acting jointly in selling their co-owned land, which constitutes a business activity, and the joint ownership bears the economic risk involved in that business.

There are some first domestic judgments out there confirming that spouses, or more specifically – their statutory joint ownership in such cases, act as a separate taxable person.

Still, keep in mind that no new taxable person is born under many legal relationships with a shared objective, e.g. in the case of consortium agreements. Consequently, the cases described above are not that frequent in day-to-day trade.

Is an energy cluster a taxable person?

For the cluster’s classification as a stand-alone taxable person the key is whether it appears in relations with third parties as an independent entity that carries out its own business and whether it has its own assets.

The answer is not clear-cut at all because the energy cluster legislation itself does not give ground for such claims, and at the same time members have considerable leeway in shaping their agreement.

Our review of energy cluster legislation suggests a certain resemblance to a civil-law partnership as a non-corporate body in pursuit of economic benefits. An energy cluster also has its organised and legally regulated substance. The comparison to a civil-law partnership is already present in the literature on the subject where authors suggest that the regulations governing the civil law partnership may apply per analogiam to e.g. rules of representation or property relationships among the energy cluster members (see e.g. J. J. Zięty [w:] Odnawialne źródła energii. Komentarz, red. A. Mituś, A. Piotrowska, Warszawa 2024, art. 38(aa)) [J. J. Zięty [in:] Renewable energy sources. Commentary, ed. A. Mituś, A. Piotrowska, Warsaw 2024, Article 38(aa))].

Still, we cannot ignore significant differences between a civil-law partnership and an energy cluster:

the law stipulates explicitly that property of a civil-law partnership is co-owned by all partners. There is no corresponding provision in respect of energy clusters. As a rule, an energy cluster has no separate property, and the property of its members is not co-owned. Consequently, there is usually no property for which a cluster's operations could trigger liability. Nevertheless, energy cluster members are free to shape their founding agreement as they like. As a consequence, a view prevails that energy cluster members may, but do not have to, carve out their property for the cluster’s purposes. It is more difficult to choose how to carve it out and assess if the carve-out could make the cluster a taxable person;
it is currently difficult to tell if an energy cluster appears to be acting as an independent business entity in dealings with third parties, especially as its objective has more to do with mutually supporting its members than with acting jointly outside. In such cases, a cluster or some of its members, if they choose so, will be acting more like a consortium. Again, we cannot ignore the autonomous nature of the agreement among the members who determine the scope and rules of their representation by the coordinator, which may greatly affect how the cluster is perceived outside.

The arguments for treating an energy cluster as an entity liable to VAT, and perhaps excise duty, appear in the legal literature on the subject (see for instance the above-cited publication Renewable energy sources. Commentary).

Even though the case for not treating an energy cluster as a taxable person seems stronger, keep in mind that the respective regulations are subject to free interpretation (remember the sudden shift in court judgments on joint statutory ownership being a taxable person), and the actual and legal situation of every cluster (e.g. their internal relations) may differ from each other.

Therefore, in assessing every cluster you should consider the agreement among its members and the perspective of a third party that could be a party to transactions with such a cluster.

If you are a member of an energy cluster, its coordinator or a third party transacting with a cluster, and you are not sure about its VAT status, contact our experts.

In the follow-up articles, our experts will present other interesting legal and tax aspects of energy clusters.

FAQ

What is an energy cluster?

An energy cluster is an agreement among local entities that produce, store, balance demand, distribute or trade in electricity, among other things.

What are the benefits of joining an energy cluster?

Energy clusters offer the opportunity to reduce distribution fees which account for a considerable share of the energy bill. How much is saved on the distribution fees depends on the amount of electricity produced from renewable sources by the cluster member. If the cluster members feed the volume of electricity equal to the amount of electricity they consume, the distribution system operator charges only 75% of the distribution fee which depends on the volume of electricity taken. This translates into real savings.

However, keep in mind that the preferences are reserved only for clusters entered in the cluster register kept by the President of the Energy Regulatory Office.

What legislation governs the energy clusters?

The regulations are included in the Renewable Energy Sources Act, but a great deal is up to the parties to the agreement which may regulate a lot of issues, e.g. property and representation, as part of the freedom of contract.

Is an energy cluster an autonomous taxable person?

It is currently difficult to answer this question unequivocally. Plenty of arguments seem to suggest that an energy cluster is not a stand-alone taxable person. However, be mindful that the situation of individual clusters may vary due to the members’ agreement and the perspective of a third party that could be a party to transactions with such a cluster. Remember also that the definition of a taxable person is quite peculiar and the CJEU has recently, and quite unexpectedly, ruled that sometimes a marriage having joint statutory ownership may be regarded as a taxable person. The arguments for treating an energy cluster as an entity liable to VAT and perhaps excise duty also appear in the scholarly literature on the subject. That is why it is best to look at every case individually, and sometimes apply for an advance tax ruling.

Jakub Wajs, Attorney at Law, Tax Adviser, Senio Associate

dr Damian Dobosz, Attorney at Law, Senior Associate

Paweł Gąsak, Junior Tax Consultant

4 December 2025