Opinion of the Advocate General — ECLI:EU:C:2024:447
Date: 2024-05-30
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-677/22 – 1 
Case C-677/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 November 2022 
Referring court: 
Sąd Rejonowy Katowice-Wschód w Katowicach (Poland) 
Date of the decision to refer: 
26 September 2022 
Applicant: 
Przedsiębiorstwo Produkcyjno-Handlowo-Usługowe A. 
Defendant: 
P. S.A. 
  
Subject matter of the main proceedings 
Claim for payment of interest and compensation for recovery costs in respect of 
principal amounts paid after the due date under contracts for the supply of mining 
machinery parts between the parties. 
Subject matter and legal basis of the request 
Interpretation of Article 3(5) of Directive 2011/7/EU of the European Parliament 
and of the Council of 16 February 2011 on combating late payment in commercial 
transactions (recast) (OJ 2011 L 48, p. 1); Article 267 TFEU 
Question referred for a preliminary ruling 
Must Article 3(5) of Directive 2011/7/EU of the European Parliament and of the 
Council of 16 February 2011 on combating late payment in commercial 
transactions (recast) (OJ 2011 L 48, p. 1) be interpreted as meaning that a period 
for payment longer than 60 days may be expressly stipulated by undertakings only 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-677/22 
 
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in contracts in which the contractual terms are not determined unilaterally by one 
of the contracting parties? 
Provisions of European Union law relied on 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions (recast) 
(‘Directive 2011/7’): Article 3(5) 
Provisions of national law relied on 
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, ‘the Law of 8 March 2013’) in the wording 
in force before 1 January 2020: Article 5, Article 7(1), (2) and (3), Article 11b 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Civil Code of 23 April 1964): 
Article 359(1) and (2) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, Przedsiębiorstwo Produkcyjno-Handlowo-Usługowe A., is engaged 
in the business of, among others, manufacturing mining electronics equipment. 
2 The defendant, P. S.A., one of the largest mining companies in Europe, is engaged 
in the business of, among others, mining and selling hard coal. 
3 The parties entered into a number of contracts for the supply of mining machinery 
parts. Some of those contracts were concluded by way of an open tender, and 
some in online spot auctions. In the case of contracts concluded after a tender, the 
terms of the future contract (including the period for payment) were specified in 
the terms of reference. The terms of reference were drawn up unilaterally by the 
defendant, and the applicant had no say in their content. In the case of spot 
auctions, the contract was concluded in the following manner: information was 
posted on the defendant’s website about a specific contract and its terms, 
including the period for payment. A bidder could participate in the auction 
without accepting the indicated terms. For each contract, the period for payment 
was 120 days after delivery. The applicant performed the concluded contracts and 
submitted partial invoices to the defendant for their performance. The defendant 
paid the invoiced amounts after their due dates. As payment deadlines had been 
missed, the applicant sent a summary accounting note to the defendant, which 
included interest and compensation for the recovery costs related to each invoice. 
4 On 31 December 2021, the applicant brought an action before the referring court, 
in which it demanded that the defendant be ordered to pay the amount of 
PLN 13 702.99 together with statutory interest for late payment from the date of 
PRZEDSIĘBIORSTWO A. 
 
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the action until the date of payment, plus the amount of PLN 4 473.04, which is 
equivalent to the sum total of compensation for the recovery costs related to 
individual invoices (EUR 40 compensation for each invoice). 
5 On 26 January 2022, the referring court issued an order for payment granting the 
applicant’s claim in full. 
6 Within the prescribed time limit, the defendant lodged an objection to that order 
for payment with the referring court. In its objection, it sought dismissal of the 
claim in part, that is to say, with respect to the amount of PLN 10 673.48. 
Essential arguments of the parties in the main proceedings 
7 In support of its claim, the applicant indicated that the calculation of interest was 
based on the assumption that from the 31st to the 60th day following submission of 
the invoice interest was accrued at a lower rate, that is to say, under Article 5 of 
the Law of 8 March 2013, while from the 61st day until the date of payment it was 
accrued at a higher rate, that is to say, under Article 7 of the aforementioned law. 
The applicant argues that it was entitled to charge interest in that manner because 
the period of payment was not agreed upon by the parties; instead, it was 
unilaterally set by the defendant in the model contract and was not negotiable at 
any stage of the proceedings. The applicant also argued that the fact that coal 
companies impose periods for payment of 120 days or longer is a sign of their 
abuse of a dominant position. A prerequisite for participation in the procurement 
procedure organised by the defendant was to perform the delivery according to the 
non-negotiable terms set by the defendant. Attempts to shorten the payment terms 
were made, but were unsuccessful. 
8 In its objection to the order for payment, the defendant disputed the legitimacy of 
part of the interest awarded (namely the amount of PLN 6 200.44) and the amount 
claimed as compensation (namely PLN 4 473.04) With respect to the interest 
claimed, the defendant accepted that interest was due under Article 5 of the Law 
of 8 March 2013 for the period from the 31st day from the date of receipt of the 
invoice until the due date, that is to say, for 90 days of the extended payment 
period. On the other hand, according to the defendant, interest at a higher rate, 
namely under Article 7 of the aforementioned law, was not justified. The 
defendant also argued that it had paid the invoices when due, without delay, and 
therefore the applicant was not entitled to compensation for recovery costs, as the 
applicant had accepted the 120-day payment term and the invoices it issued also 
indicated that payment term. The defendant disagrees with the argument that the 
period for payment of the invoices should have been 60 days. In view of the fact 
that the applicant had read the terms of reference, and subsequently submitted 
tenders to the defendant in which a 120-day payment term was provided for, and 
after winning the tenders concluded a number of contracts in which it confirmed 
the payment term and did not dispute the arrangements made in that regard, it 
should be considered that the parties agreed on an extended payment term. In turn, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-677/22 
 
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the number of transactions between the parties means that their conclusion was 
not detrimental to the applicant. The defendant also stated that between 2018 and 
2020 it entered into a number of contracts with identical payment terms, so it is 
impossible to consider that the indicated term was detrimental to the creditor, as 
the applicant had certainty that it would sell its services, earn income and maintain 
liquidity. According to the defendant, it was entitled to determine the contract 
terms in accordance with its own financial capabilities, which are specific to the 
market, but which fully reflect the situation of coal mining companies in Poland. 
The defendant further argues that while the 120-day period for payment is a 
lengthy one, the contractor learned about it at the tender announcement stage, 
which allowed it to price its bid accordingly. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 Article 7(2) of the Law of 8 March 2013, whose correct interpretation is important 
to the outcome of the main proceedings, is the result of the transposition of 
Article 3(5) of Directive 2011/7 into national law. 
10 The provisions of that law applicable in the present case provide for two types of 
interest. The first is stipulated in Article 5 and constitutes capital interest, which is 
due when the payment terms are longer than 30 days. The creditor is entitled to 
that type interest after 30 days calculated from the date of performance and 
delivery of the invoice to the debtor until the date of payment, but no longer than 
until the due date. The amount of interest is determined pursuant to Article 359(2) 
of the Civil Code. On the other hand, if the debtor is in arrears (the due date has 
lapsed), the creditor is entitled to statutory interest for late payment in commercial 
transactions under Article 7(1) of the Law of 8 March 2013, whose amount is 
calculated on the basis of Article 11b thereof. The question of the type of interest 
to which the applicant was entitled is also relevant here. During the period 
covered by the action, the interest rate for the type of interest stipulated in 
Article 7(1) of the aforementioned law was higher. If a creditor is entitled to claim 
statutory interest for late payment in commercial transactions under Article 7(1), 
then under Article 10(1) it is also entitled to claim the equivalent of EUR 40 as 
compensation for recovery costs. 
11 Article 3(5) of Directive 2011/7 was transposed into the Law of 8 March 2013 in 
Article 7(2). Article 7(2) of the Law of 8 March 2013 provides that the period for 
payment fixed in the contract may not exceed 60 days from the date of delivery to 
the debtor of an invoice or bill confirming the delivery of goods or performance of 
services, unless the parties expressly agree otherwise in the contract and provided 
that the arrangement is not grossly unfair to the creditor. Justifying its position 
that it was entitled to interest for late payment in commercial transactions, the 
applicant referred to the cited provision and, primarily, to the first condition stated 
therein, indicating that ‘express agreement’ does not apply to situations in which 
the terms of the contract are, as it were, imposed by the other party and are not 
subject to any negotiation. 
PRZEDSIĘBIORSTWO A. 
 
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12 In the view of the referring court, an issue has arisen in the present case that 
requires interpretation of European Union law, namely Article 3(5) of Directive 
2011/7, in connection with the principle of effectiveness of European Union law, 
since the EU legislature and the national legislature are undoubtedly endeavouring 
to create a culture of prompt payment in business transactions, among others, by 
regulating matters related to periods for payment. In European Union law, the 
principle has been adopted that for undertakings which are not public entities, the 
period for payment, as a general rule, should not exceed 60 calendar days 
calculated either from receipt of the goods or services or receipt of an invoice or 
equivalent request for payment. That term may be extended subject to two 
conditions: the parties’ express agreement for a longer period for payment in the 
contract, and the absence of gross unfairness to the creditor. 
13 With regard to the first condition, doubts as to its interpretation arise in view of 
the legislature’s use of the concept of ‘express agreement by the parties’ for a 
longer period for payment. Many contracts between businesses are concluded by 
accepting the terms drawn up by one of the parties (for instance, on the basis of a 
model contract), where most of the provisions are neither jointly drawn up nor 
negotiated, and are often not subject to change (thus these are pre-formulated 
standard contracts or similar). Therefore, the agreement consists in accepting the 
contract as presented by the counterparty. Since the Polish legislature (similarly to 
the EU legislature) uses the concept of express agreement between the parties for 
a period for payment exceeding 60 days, a doubt has arisen as to whether this only 
applies to contracts whose provisions have been drawn up by all the parties 
thereto. 
14 In the view of the referring court, Article 3(5) of Directive 2011/7 must be 
interpreted as meaning that express agreement by entrepreneurs for a period for 
payment exceeding 60 days does not apply to contracts whose terms are 
determined unilaterally by one of the contracting parties. 
15 Such an interpretation is supported primarily by the purpose of the directive, 
whose transposition into national law is intended to counteract payment 
bottlenecks in the internal market and improve the liquidity and competitiveness 
of businesses. 
16 As a general rule, the period for payment should not exceed 60 days for private 
undertakings. However, that is not a rigid deadline, and it may be extended, as 
indicated in the recitals to the directive, when justified by circumstances in which 
the undertaking in question may require longer periods for payment. However, the 
longer period should be expressly agreed between the entrepreneurs. Both the EU 
legislature and the national legislature employ the concept of ‘express’, and 
therefore qualified, agreement. Undoubtedly, contractual provisions may be 
determined in such a manner that one of the parties drafts them in advance or uses 
a standard template, and the role of the other party is limited to accepting those 
terms. In the view of the referring court, however, that is not express agreement 
within the meaning of Article 3(5) of Directive 2011/7. Indeed, as the period for 
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payment should only be extended in exceptional cases, the creditor should at least 
know the reasons why the other party intends to take advantage of that exception. 
Moreover, cognisant of those reasons, it can then assess whether the period 
proposed by the counterparty, even if extended beyond 60 days with some 
justification, is not unduly extended, and possibly put forward arguments that 
would justify a different period for payment (for instance, 100 instead of 
120 days). However, that is not the case with contracts concluded by tender or 
auction, and also other pre-formulated standard contracts. In such a case, the 
parties can either accept the terms of the future contract set by one of the parties or 
not enter into the contract at all. Only in the case of a public tender is it possible to 
appeal against certain contractual terms; however, in such a case, one is not 
dealing with agreement, but rather with a decision of an authority that is outside 
the contract itself. 
17 The reasoning put forward here also appears to be supported by the second 
indicated condition, which refers to the absence of gross unfairness to the creditor. 
In the view of the referring court, in addition to the objective factors listed in 
Article 7 of Directive 2011/7, the creditor’s situation should also be taken into 
account at the stage of concluding the contract and determining the length of the 
period for payment, since that is the right time to assess the situation and the 
actual impact of the extension of the payment term on the creditor – whether it 
constitutes gross (as opposed to ordinary) unfairness to the creditor. That 
assessment is only possible when the creditor’s identity is known, for it cannot be 
ruled out that, with respect to a certain creditor, a significant extension of the 
period for payment should be considered grossly unfair, while for another creditor 
it would simply be unfair. Thus, it is primarily up to the parties to shape their legal 
relationship such that it is compatible with generally applicable laws. 
18 The EU legislature provided for different arrangements when a commercial 
transaction takes place between a public undertaking and public authorities, 
indicating that a period longer than 30 days should also be the result of an express 
agreement, but in this case it is sufficient that it is objectively justified in the light 
of the particular nature or features of the contract, and not by the creditor’s 
situation. At the same time, it was stipulated that, in any event, the period must 
not exceed 60 days. 
19 According to the referring court, the interpretation provided by it also allows the 
objectives of the directive to be more fully achieved. That is because it reduces the 
risk of companies unilaterally and unreasonably applying longer periods for 
payment to counterparties in order to finance their current operations. That, in 
turn, often adversely affects those counterparties’ liquidity and competitiveness. 
20 The Court’s answer will allow for a pro-European interpretation of national law, 
and a determination of whether, given the form of the contract and the 
circumstances in which it was concluded, there is a need to examine in the main 
proceedings whether the 120-day time limit set by the parties was not grossly 
unfair to the creditor.