Judgment;Summary — ECLI:EU:C:2022:948
Date: 2022-12-01
Language of the case: Polish
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-419/21 – 1 
Case C-419/21 
Request for a preliminary ruling 
Date lodged: 
8 July 2021 
Referring court: 
Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court 
for the Capital City of Warsaw in Warsaw, Poland) 
Date of the decision to refer: 
21 June 2021 
Applicant: 
X sp. z o.o., sp. k. 
Defendant: 
Z 
  
[…] 
ORDER 
On 21 June 2021 
the District Court for the Capital City of Warsaw in Warsaw, 1st Civil Division, 
composed of: 
[…] 
having heard […] on 21 June 2021 in Warsaw 
the case brought by X spółka z ograniczoną odpowiedzialnością spółka 
komandytowa [X limited partnership with a limited liability company as its 
general partner] with its registered office in K. 
against Z. with its registered office in W. 
for payment 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 6. 2021 – CASE C-419/21 
 
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orders: 
that the following questions be referred to the Court of Justice of the European 
Union for a preliminary ruling: 
1.- Must Article 6(1) of Directive 2011/7/EU of the European Parliament 
and of the Council of 16 February 2011 on combating late payment in 
commercial transactions be interpreted as meaning that, in the case of a 
contract in which the parties provided for several deliveries of goods 
and in which payment for each delivery was due within a certain time 
limit after that delivery, a fixed sum of EUR 40, as a minimum, is 
payable for each late payment for an individual delivery, or does 
European Union law merely require that the creditor be paid a fixed 
sum of EUR 40 in respect of the entire commercial transaction which 
comprises several deliveries irrespective of the number of late 
payments for individual deliveries? 
2.- Within the meaning of Article 2(1) of Directive 2011/7/EU of the 
European Parliament and of the Council of 16 February 2011 on 
combating late payment in commercial transactions, does a contract for 
the supply of goods that obliges the supplier to supply to the 
contracting authority, for a price agreed in that contract, a certain 
quantity of goods and at the same time grants the contracting authority 
the right to determine unilaterally the timing and volumes of the 
individual deliveries comprising execution of the subject of the 
contract, including the possibility of opting out from receiving some of 
the goods contracted for without suffering any negative consequences, 
and obliges the contracting authority to pay for each part delivery 
within a certain time limit calculated from receipt of that part delivery, 
constitute a single commercial transaction, or does each of those part 
deliveries, which are based on the contracting authority’s stated 
requirements, constitute a separate commercial transaction within the 
meaning of the directive, even though it does not constitute a separate 
contract under national law? 
[…] 
Request for a preliminary ruling 
1. Designation of the court and the parties 
1. Referring court: District Court for the Capital City of Warsaw in 
Warsaw, 1st Civil Division […]. 
2. Applicant: X spółka z ograniczoną odpowiedzialnością spółka 
komandytowa with its registered office in K. ([…] Poland) 
X 
 
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3. Applicant’s legal representative: […]. 
4. Defendant: Z with its registered office in W. ([…] Poland) 
5. Defendant’s legal representative: […] 
2. Subject matter of the proceedings and relevant facts 
1. A hospital entered into a contract with an undertaking for the supply of 
medical products under a public procurement procedure. 
2. The subject matter of the contract was the sale and delivery to the 
hospital of goods in the quantities indicated in the appendix thereto, 
but it was stipulated that those quantities could be reduced in 
accordance with the hospital’s actual needs and in that case the 
undertaking would have no claim against the hospital. Part deliveries 
were envisaged and the hospital was given the right to determine 
specific delivery dates – it was to place individual ‘orders’ by fax five 
business days in advance. It was clearly stated that those ‘orders’ were 
of a purely technical and organisational nature and did not result in any 
obligations being incurred on the part of the hospital. The gross value 
of the contract and the prices for the individual goods were specified, 
and it was stipulated that those could not be increased during the 
performance of the contract. It was agreed that payments, together 
amounting to the gross value of the contract, would be made 
successively within 60 days of each part delivery. 
3. The hospital was late in making 12 partial payments for 12 of those 
‘part deliveries’, which together constituted a single contract for the 
supply of goods. The undertaking did not demonstrate that it had 
incurred any actual recovery costs. 
4. The undertaking is of the opinion that it is entitled to 12 fixed sums in 
respect of the 12 late payments which gave rise to interest for late 
payment. 
5. The hospital takes the view that the undertaking is only entitled to one 
such fixed sum because all the late payments related to a single 
commercial transaction. 
3. Tenor of any national provisions applicable in the case 
Ustawa z dnia 8 marca 2013 r. o przeciwdziałaniu nadmiernym opóźnieniom w 
transakcjach handlowych (Law of 8 March 2013 on Counteracting Excessive 
Delays in Commercial Transactions) (Dziennik Ustaw of 2021, item 424): 
Article 4(1) 
REQUEST FOR A PRELIMINARY RULING OF 21. 6. 2021 – CASE C-419/21 
 
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The terms used in this Law shall have the following meanings: ‘commercial 
transaction’ means a contract having as its object a supply of goods or provision 
of a service for consideration, where the parties referred to in Article 2 enter into it 
in connection with the activity carried out. 
Article 8(1) 
1. In commercial transactions in which the debtor is a public entity, the creditor 
shall, without demand, be entitled to statutory interest for delay in commercial 
transactions for the period from the due date for the payment until the actual 
payment date, if both the following conditions are met: 
(1) the creditor has fulfilled its performance obligation; 
(2) the creditor did not receive payment within the time limit stipulated in the 
contract. 
Article 10 
1. The creditor shall, from the date on which it becomes entitled to the interest 
referred to in Article 7(1) or Article 8(1), also be entitled, without demand, to 
compensation from the debtor for recovery costs, which shall be equivalent to: 
(1) EUR 40 – if the payment amount does not exceed PLN 5 000; 
(2) EUR 70 – if the payment amount exceeds PLN 5 000, but is lower than 
PLN 50 000; 
(3) EUR 100 – if the payment amount is equal to or exceeds PLN 50 000. 
1a. The equivalent in national currency of the amount of compensation referred 
to in paragraph 1 shall be determined using the average euro exchange rate 
published by the National Bank of Poland on the last business day of the month 
preceding the month in which the payment became due. 
2. In addition to the amount referred to in paragraph 1, the creditor shall also 
be entitled to a refund, in a reasonable amount, of the recovery costs incurred in 
excess of that amount. 
3. The amount referred to paragraph 1 shall be due on a commercial 
transaction, subject to Article 11(2)(2). 
4. The claim for compensation referred to in paragraph 1 may not be assigned. 
Article 11 
1. The parties to a commercial transaction may agree in the contract on a 
schedule providing for partial payments, provided that such an arrangement is not 
grossly unfair to the creditor. 
X 
 
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2. If the parties to a commercial transaction have agreed in the contract that 
partial payments are to be made, the right to: 
(1) the interest referred to in Article 7(1) or Article 8(1); 
(2) the amount referred to in Article 10(1) and the refund of the recovery costs 
incurred, as referred to in Article 10(2), shall be due in respect of each unpaid 
part. 
4. Provisions of European Union law which are the subject of the 
questions referred for a preliminary ruling. 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions (OJ L 48 
of 23 February 2011): 
Article 2(1) 
For the purposes of this Directive, the following definitions shall apply: 
‘commercial transactions’ means transactions between undertakings or 
between undertakings and public authorities which lead to the delivery of 
goods or the provision of services for remuneration. 
Article 5 
This Directive shall be without prejudice to the ability of parties to agree, 
subject to the relevant provisions of applicable national law, on payment 
schedules providing for instalments. In such cases, where any of the 
instalments is not paid by the agreed date, interest and compensation 
provided for in this Directive shall be calculated solely on the basis of 
overdue amounts. 
Article 6 
1. Member States shall ensure that, where interest for late payment 
becomes payable in commercial transactions in accordance with Article 3 or 
4, the creditor is entitled to obtain from the debtor, as a minimum, a fixed 
sum of EUR 40. 
2. Member States shall ensure that the fixed sum referred to in 
paragraph 1 is payable without the necessity of a reminder and as 
compensation for the creditor’s own recovery costs. 
3. The creditor shall, in addition to the fixed sum referred to in 
paragraph 1, be entitled to obtain reasonable compensation from the debtor 
for any recovery costs exceeding that fixed sum and incurred due to the 
debtor’s late payment. This could include expenses incurred, inter alia, in 
instructing a lawyer or employing a debt collection agency. 
REQUEST FOR A PRELIMINARY RULING OF 21. 6. 2021 – CASE C-419/21 
 
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5. Connection between the case and European Union law 
The applicant is pursuing a claim for a fixed sum as compensation for recovery 
costs as provided for in Article 6(1) of Directive 2011/7/EU (implemented into 
national law by Article 10(1) of the cited Law). 
6. Legal doubts of the national court and their relevance to the resolution 
of the case pending before it 
1. The court has doubts concerning the interpretation of European Union 
law, which should be the decisive factor when interpreting ambiguous 
provisions of national law that implement an EU directive. 
2. Indeed, national law clearly states that compensation is due on each 
commercial transaction, and that a transaction is a contract. It follows 
that, with the exception of payment schedules providing for 
instalments, a single contract may only give rise to a single fixed sum 
as compensation. 
3. On the other hand, Directive 2011/7/EU does not explicitly define a 
transaction as a contract. Both positions can be defended: either that a 
transaction is a contract or that if a contract provides for multiple 
deliveries of goods, then each of those deliveries constitutes a 
commercial transaction within the meaning of the directive on which a 
fixed sum can be claimed as compensation. 
4. The contract entered into by the parties to the dispute in the main 
proceedings does not provide for partial payments within the meaning 
of Article 11(1) and (2) of the cited law or for a payment schedule 
providing for instalments within the meaning of Article 5 of Directive 
2011/7/EU. It should be stressed that it was the non-monetary 
obligation (delivery) that was fulfilled in parts, while payment was 
always made in full (in the amount due for the goods delivered) rather 
than being divided into instalments. 
5. Apart from the contract described in this request [for a preliminary 
ruling], the parties did not enter into any additional agreements, 
including, in particular, any performance agreements. Thus, all the 
‘part deliveries’ were made within the performance of a single 
contract, which therefore did not constitute a framework agreement or 
a preliminary agreement, but a definitive contract under which the 
mutual obligations of the parties were performed. 
6. The concluded contract expressly states that the ‘orders’ placed 
thereunder do not result in the hospital incurring any obligations, but 
are merely acts of a technical and organisational nature which indicate 
X 
 
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the hospital’s current needs and reflect its right to determine the timing 
of individual part deliveries as stipulated therein. 
7. Under national law, a contract entered into by a public entity such as a 
hospital is null and void unless it is made in writing and complies with 
the requirements stipulated in public procurement law. 
8. In the view of the court, the hospital reserving the right to determine 
unilaterally the timing and contents of individual deliveries (which 
right shapes the legal relationship) does not go beyond a sales (supply) 
contract, let alone beyond a broadly defined commercial transaction 
(supply of goods for consideration). 
9. In view of the above, the court concludes that the parties were bound 
by a single contract. 
10. At the same time, the court notes that under national law, a commercial 
transaction is a contract, and therefore it follows that only a single 
commercial transaction took place between the parties. This would 
lead to the conclusion that only a single compensation is due, given 
that, in the light of Article 10(3) of the national Law, that 
compensation is due on a commercial transaction. 
11. Nevertheless, the court notes that it is possible to interpret Article 6(1) 
of Directive 2011/7/EU in such a manner that a fixed sum of 
compensation is payable upon falling into arrears with each partial 
payment and the resulting interest for late payment arising. 
12. However, in the view of the court such an interpretation would be 
inconsistent with the tenor of the directive, which clearly distinguishes 
between ‘transactions’ and ‘payments’. Indeed, Article 6(1) of the 
directive provides that the creditor is entitled to a fixed sum of EUR 40 
in the event of interest becoming payable ‘in commercial transactions’, 
and therefore attributes the ‘fixed sum of EUR 40’ to individual 
‘transactions’ (rather than payments). Notwithstanding that, 
Article 6(3) of Directive 2011/7/EU provides that the creditor is 
entitled to compensation from the debtor for any recovery costs 
exceeding that fixed sum and incurred due to the debtor’s late 
‘payment’. 
13. The court took note of the judgment of the Court of Justice of the 
European Union of 9 July 2020 in Case C-199/19 
(ECLI:EU:C:2020:548). Although that judgment deals with similar 
issues, it does not address the court’s doubts as to whether Union law 
requires, in the circumstances described by the court, that the creditor 
be compensated for each late payment, despite the fact that those 
payments concern a single transaction. 
REQUEST FOR A PRELIMINARY RULING OF 21. 6. 2021 – CASE C-419/21 
 
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14. First of all, however, the concept of a commercial transaction itself, 
which is not precisely defined in the directive, must be interpreted by 
the Court. For the referring court, there is no doubt that this is an 
autonomous concept of European Union law and must be interpreted 
uniformly in all the Member States. 
15. The Court’s answer to the question referred is significant in that if the 
Court finds that EU law requires compensation to be paid for each late 
payment or that, under EU law, each delivery under a single contract 
between the parties constitutes a transaction, the national court will 
award to the creditor a multiple of the fixed sum of compensation. 
Otherwise, the court will dismiss that part of the claim which exceeds 
a single fixed sum of compensation. 
Warsaw, 21 June 2021