Can a management board member challenge the company's tax liabilities?

A new interpretation of Article 116 of the Tax Ordinance in the light of EU law

To date, company management board members facing tax arrears proceedings have often been deprived of any real defense tools. Proceedings concerning joint and several liability of a management board member for the company's tax obligations have been limited solely to examining whether the conditions for such liability have been met, without the possibility of challenging the tax decision itself issued against the company. 

The latest CJEU case law changes the rules of the game: final decisions issued against a company will no longer be an obstacle to effectively challenging the very obligations.

Autonomous proceedings against a management board member

Article 116 of the Tax Ordinance Act provides that a management board member is jointly and severally liable with the company for the company's tax arrears with all of his or her assets if enforcement against the company's assets proves ineffective in whole or in part. In practice, this has meant that the findings of decisions (particularly the amounts) issued against the company were transferred to member of the board, without any real possibility of challenging them.

CJEU judgment of February 2025 in the case C-277/24 (Adjak) however, confirmed that such an approach violates the right to defense. Proceedings against a management board member must be autonomous, and the decision on the company's assessment is evidence, not prejudicial.

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The right to challenge findings

A management board member may question both the existence and the amount of the company's liabilities, even if these have already been established by a decision of the tax authorities. The Court emphasized that the body conducting the proceedings is obligated to consider all evidence and arguments presented by the third party.

The limits of the right to defense

This right, however, is not unconditional. If member of the board had the opportunity to challenge the findings during the assessment proceedings against the company (e.g. participated in the declaration submission process), later allegations may be assessed as late.

Access to case files

The CJEU also pointed out the need to ensure member of the management board access to the company's case files – to the extent necessary for effective defense. However, this access is not unlimited: trade secrets and third-party interests are still protected.

Implications for practice

Thanks to the new CJEU ruling, management board members are no longer held hostage by tax decisions made against the company. Tax authorities must conduct separate evidentiary proceedings, which increases the chances of a successful defense, especially when previous findings were erroneous.
This is a clear signal that people in charge managerial functions they have real tools to defend themselves, and their procedural situation becomes more balanced.