VAT rates in tender offers for catering services –the role of case law in shaping tax law certainty and equal competition

The issue of correctly determining VAT rates in bids submitted in tenders based on public procurement regulations for catering services has been the subject of much controversy for years. The distinction between catering services, food services, and the delivery of ready-made meals is crucial for determining the amount of tax due, and thus for the competitiveness and correctness of bids submitted in public procurement procedures. Legislative ambiguities and interpretative variability lead to a situation where contracting authorities and contractors bearthe risk of different classifications of the same services. Contractors are thus exposed to the risk of their bids being rejected as non-compliant with applicable law. Contracting authorities, on the other hand, bear the risk of selecting the wrong bid. The case law of the Court of Justice of the European Union, the Supreme Administrative Court, provincial administrative courts, and the National Appeal Chamber (hereinafter: KIO) plays an important role in bringing order to this area. Case law concerning complex services, the classification of services according to PKWiU (Polish Classification of Goods and Services), and the interpretation of the concept of “catering services” directly affects the quality of tax law and the certainty of trade. At the same time, case law shows that doubts about the application of reduced VAT rates remain alive and may lead to a violation of the principle of equal treatment of contractors in procedures based on public procurement regulations.The author analyses the impact of case law on the development of standards in this area, taking into account the practical consequences for contracting authorities and contractors. She points to possible directions for de lege ferenda changes that could reduce the risk of tax disputes and ensure greater predictability of the law in the catering services sector.The thesis of the article assumes that the activity of the judiciary in the area of public procurement is not limited solely to resolving individual disputes, but in fact takes on a quasi-regulatory function, consisting in clarifying and stabilizing normative areas left by the legislator in a state of uncertainty. As a result, case law has a real and direct impact on the shaping of conditions for fair competition in public procurement procedures.