Opinion of the Advocate General — ECLI:EU:C:2025:632
Date: 2025-08-01
Language of the case: Polish

Translation C-481/24 – 1 
Case C-481/24 
Request for a preliminary ruling 
Date lodged: 
10 July 2024 
Referring court: 
Sąd Rejonowy dla m.st. Warszawy w Warszawie (Poland) 
Date of the decision to refer: 
26 June 2024 
Party initiating the proceedings before the referring court: 
E. sp.j. 
Other party to the proceedings: 
C. sp. z o.o. 
  
Warsaw, 26 June 2024 
Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court for the Capital 
City of Warsaw in Warsaw) 
XV Wydział Gospodarczy (15th Division dealing with Commercial Affairs) 
 […] [address of the referring court] 
Court of Justice of the European Union 
 […] [seat of the Court of Justice] 
REQUEST FOR A PRELIMINARY RULING 
 [anonymised version] 
The District Court for the Capital City of Warsaw in Warsaw, 15th Division 
dealing with Commercial Affairs, acting pursuant to Article 267 of the Treaty on 
the Functioning of the European Union and the order of 28 June 2024, requests 
the Court of Justice of the European Union […] [seat of the Court of Justice] for 
an answer to the following question: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 6. 2024 – CASE C-481/24 
 
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Must Article 3(1) and (3)(a), and Article 6(1) and (2) of Directive 2011/7/EU 
of the European Parliament and of the Council of 16 February 2011 on 
combating late payment in commercial transactions (OJ 2011 L 48, p. 1 as 
amended) 
be interpreted as 
precluding provisions of national law which provide that the creditor is not 
entitled to statutory interest for late payment and compensation for recovery 
costs where the debtor, after the expiry of the payment deadline set forth in 
the contract, has satisfied the creditor’s claim by means of a set-off that is by 
operation of law retroactive to the moment when the set-off became possible? 
SUCCINCT PRESENTATION OF THE FACTS AND PROCEDURE IN THE 
MAIN PROCEEDINGS 
The applicant E. spółka jawna [E. general partnership], based in W., brought an 
action for payment against C. spółka z ograniczoną odpowiedzialnością [C. 
limited liability company], based in D. 
In its action, the applicant claims that it is entitled to 10 claims for payment for 
performing 10 transports on behalf of the defendant. The defendant company did 
not pay the amounts due on time, and thus the applicant claims PLN 26 715.60 as 
the sum total of 10 payments; in addition, the applicant claims statutory interest 
for late payment in commercial transactions under Article 7(1) of the 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, consolidated text: Dziennik Ustaw (Journal of Laws) of 
2023, item 1790; ‘the LCED’) accrued on each unpaid amount as well as 
PLN 1 997.29 as the sum total of compensation for recovery costs under 
Article 10 of the LCED in connection with the delay in each of the 10 payments. 
For the record, it should be clarified that the LCED implements 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, 
as amended). 
The defendant requested that the claim be dismissed, alleging that it had made a 
partial payment in the amount of PLN 1 697.40 and had effected a set-off in the 
amount of PLN 25 018.20. 
In its set-off plea, the defendant claimed that it had a counterclaim against the 
applicant company, allegedly arising from the fact that during the performance of 
one of the transports not covered by the action, the transported goods were 
damaged, for which the applicant was liable. Although the goods were not the 
property of the defendant company, the defendant company was liable for the 
destruction of those goods vis-à-vis their owner under separate regulations. As a 
result, the applicant’s actions allegedly caused damage to the defendant 
E. 
 
3 
amounting to PLN 96 076.95, which corresponded to the amount of the defendant 
company’s liability to the owner of the goods. 
The defendant’s loss was settled in part (PLN 55 174.85) by the insurance 
company, and the amount of PLN 25 018.20 was set off by the defendant against 
the applicant’s claims for payment, which are the subject of these proceedings 
(amounting to PLN 25 018.20). The remainder of the damage (PLN 15 883.90) is 
the subject of a separate action for payment, which is pending before this court 
under case Ref. XVII GC 1398/23 […] [earlier case reference]. 
Significantly, the set-off declaration only covered the principal amount of the 
applicant’s claims related to freight, that is to say, without interest and without 
recovery costs; however, as part of its set-off plea, the defendant argued that the 
set-off was retroactive in accordance with Article 499 of the ustawa z dnia 23 
kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 establishing the Civil 
Code, consolidated text: Dziennik Ustaw of 2023, item 1610, as amended; ‘the 
CC’), and as a result the applicant’s claims for interest and compensation were 
automatically extinguished. 
The applicant did not question its liability for the damage caused during the 
transport but challenged the effectiveness of the submitted set-off declaration and 
the amount of damage suffered by the defendant. 
At the 7 June 2024 hearing, the presiding judge, acting pursuant to Article 1561(1) 
of the ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure, consolidated text: 
Dziennik Ustaw of 2023, item 1550, as amended), informed the parties that he 
found the applicant’s pleas as to the effectiveness of the set-off declaration 
unconvincing, and pursuant to the relevant provisions of national law considered 
the applicant’s liability for the damage caused during the transport to be 
legitimate, but stated that the amount of damage caused would be examined [in] 
case Ref. XVII GC 1398/23, which justified staying the present proceedings until 
that case had been decided, or at least until expert evidence had been obtained to 
assess the damage. However, a separate issue that will have to be resolved in the 
present case is the question of the retroactive effect of the set-off and its impact on 
the existence of claims under the LCED. 
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 (OJ 
2011 L 48, p. 1 as amended; ‘the directive’). 
Article 1 
2. This Directive shall apply to all payments made as remuneration for 
commercial transactions. 
REQUEST FOR A PRELIMINARY RULING OF 26. 6. 2024 – CASE C-481/24 
 
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Article 2 
For the purposes of this Directive, the following definitions apply: 
1.  ‘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; 
[…] 
(4) ‘late payment’ means payment not made within the contractual or statutory 
period of payment and where the conditions laid down in Article 3(1) or 
Article 4(1) are satisfied; 
 (5) ‘interest for late payment’ means statutory interest for late payment or 
interest at a rate agreed upon between undertakings, subject to Article 7; 
Article 3 
1. Member States shall ensure that, in commercial transactions between 
undertakings, the creditor is entitled to interest for late payment without the 
necessity of a reminder, where the following conditions are satisfied: 
 (a) the creditor has fulfilled its contractual and legal obligations; and 
 (b) the creditor has not received the amount due on time, unless the debtor is not 
responsible for the delay. 
[…] 
3. Where the conditions set out in paragraph 1 are satisfied, Member States 
shall ensure the following: 
 (a) that the creditor is entitled to interest for late payment from the day 
following the date or the end of the period for payment fixed in the contract; 
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. 
PROVISIONS OF NATIONAL LAW RELIED ON 
E. 
 
5 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code, consolidated text: Dziennik Ustaw of 2023, item 
1610, as amended) 
Article 481 
§ 1 If the debtor is late in making a payment, the creditor may claim interest for 
the duration of the delay even if the creditor has not suffered any damage and 
even if the delay was due to circumstances for which the debtor is not liable. 
§ 2 If the interest rate for late payment is not specified, statutory interest for late 
payment shall be payable at a rate corresponding to the sum of the reference rate 
of the National Bank of Poland plus 5.5 percentage points. However, where the 
claim bears interest at a higher rate, the creditor may claim interest for late 
payment at that higher rate. 
Article 498 
§ 1 If two persons are simultaneously debtors and creditors with respect to each 
other, each of them may set off their claim against the claim of the other party, if 
the object of both claims is money or generic goods of the same quality, and both 
claims are due and can be enforced before a court or other state body. 
§ 2 As a result of the set-off, both claims shall cancel each other up to the 
amount of the lower claim. 
Article 499 
A set-off shall be effected by a declaration submitted to the other party. The 
declaration shall have retroactive effect from the moment when the set-off became 
possible. 
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, consolidated text: Dziennik Ustaw of 2023, 
item 1790). 
Article 1 
This Law defines the creditor’s special rights and the debtor’s obligations in 
connection with payment deadlines in commercial transactions, the consequences 
of failure to perform such obligations, and the treatment of excessive delays in 
making payments. 
Article 4 
For the purposes of this Law: 
REQUEST FOR A PRELIMINARY RULING OF 26. 6. 2024 – CASE C-481/24 
 
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(1) ‘commercial transaction’ means a contract having as its object a supply of 
goods or provision of a service for consideration, where parties as referred to in 
Article 2 enter into it in connection with the activity which they carry out; 
[…] 
 (3) ‘statutory interest for late payment in commercial transactions’ means: 
[…] 
 (b) in the case of a commercial transaction in which the debtor is not a public 
authority in the medical sector, interest at ten percentage points above the 
reference rate of the National Bank of Poland; 
Article 7 
1. Save in the case where the debtor is a public authority, creditors in 
commercial transactions shall be entitled, without the need for a reminder, and 
unless the parties have agreed on a higher rate of interest, to statutory interest for 
late payment for the period running from the date on which payment is due to the 
date on which it is made, if the following cumulative conditions are satisfied: 
(1) the creditor has performed his or her contractual obligations; 
(2) the creditor has not received payment within the period specified by the 
contract. 
Article 10 
1. From the date on which he or she acquires the right to interest as referred to 
in Article 7(1) or Article 8(1), the creditor shall be entitled to obtain from the 
debtor, without giving formal notice, compensation for recovery costs, which shall 
be equivalent to: 
(1) EUR 40 – if the payment amount does not exceed PLN 5 000; 
(2) EU 70 – if the amount of payment exceeds PLN 5 000, but is lower than 
PLN 50 000; 
SUCCINCT PRESENTATION OF THE REASONING IN THE REQUEST FOR 
A PRELIMINARY RULING 
The judgment in the present case will depend on the determination of whether the 
retroactive effect of the set-off provided for in Article 499 of the CC does not 
infringe the objectives and provisions of Directive 2011/7/EU, which has been 
implemented by the LCED. 
Under national law, the essence of set-off is that two parties are creditors and 
debtors at the same time, that is to say, each of them has a specific claim against 
E. 
 
7 
the other. Set-off results in mutual claims being extinguished up to the amount of 
the lower claim (the payment function of set-off). 
The payment function is expressed in the fact that as a result of the set-off, the 
debtors’ mutual obligations are extinguished as if the debtors had made the 
relevant payments. Although the parties do not effectively receive the payments 
due to them, their claims are set off against each other, with the result that each 
party is relieved of its debt, which allows those debts to be considered paid. 
In the present case, the applicant’s claims arose from the conclusion and 
performance of 10 transport contracts, for which the applicant was entitled to a 
claim for payment whose principal amount was PLN 26 715.60 in total. 
Therefore, within the meaning of Article 1 and Article 4(1) of the LCED 
(Article 1 and Article 2(1) of the directive), the parties to the proceedings entered 
into a commercial transaction. 
The defendant indicates that the above claim was extinguished by the payment of 
PLN 1 697.40 and the set-off of PLN 25 018.20. In the present case, it is of crucial 
importance that the successive deadlines for payment of the applicant company’s 
claims fell between February and September 2022. Since the defendant had not 
paid the invoices raised by the time the set-off declaration was submitted (which 
took place by letter dated 2 September 2022), the applicant company had 9 
separate claims for interest under Article 7 of the LCED and 9 separate claims for 
compensation under Article 10(1) of the LCED (Article 3(1) and Article 6 of the 
directive). 
Only with respect to the last invoice raised by the applicant can it be assumed that 
the set-off was effected before the invoice payment deadline had passed, and thus 
the applicant’s claims under Articles 7 and 10 of the LCED did not arise. 
The provision of Article 499 of the CC introduces a legal fiction according to 
which the set-off is retroactive to the moment when the set-off became possible, 
which means that the effects of the parties’ late payment are nullified with respect 
to the period from the time when the set-off became possible until the time the 
debtor decided to exercise the right of set-off. Set-off becomes possible when the 
claim of the party that submits the set-off declaration becomes due, that is to say, 
when the deadline for its payment has passed. 
In the case of the defendant, the claim for payment of damages was related to the 
expiry of the deadline indicated in the request for payment of 15 February 2022, 
which occurred on 7 March 2022. This means that under Article 499 of the CC, 
even though the set-off declaration only included the applicant’s claim whose 
principal amount was PLN 25 018.20 and the defendant’s claim whose principal 
amount was PLN 25 018.20, the applicant lost the right to claim all interest and 
compensation that arose after 7 March 2022 as soon as the set-off declaration was 
submitted. In the present proceedings, this concerns interest and compensation 
REQUEST FOR A PRELIMINARY RULING OF 26. 6. 2024 – CASE C-481/24 
 
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that arose as a result of delays in the payment of 9 of the 10 claims for payment 
included in the action. 
In the court’s view, the retroactive effect of the set-off provided for in national 
law may infringe Article 3(1) and (3)(a), and Article 6(1) and (2) of the directive. 
First and foremost, the provisions of the directive stipulate that the creditor has the 
right to claim interest and compensation so long as the creditor has fulfilled its 
contractual and legal obligations and has not received the amount due on time 
(Article 3(1) of the directive). The right to charge interest is to result from the 
operation of law and is to be subject to certain conditions (Article 3(1) and (3)(a) 
of the directive). In addition, if that right arises, the creditor is to be automatically 
entitled to obtain compensation (Article 6(1) of the directive), which is to be 
payable without the necessity of a reminder (Article 6(2) of the directive). 
Payment after the due date cannot retroactively deprive the creditor of those 
pecuniary claims. 
The directive stresses that many payments in commercial transactions between 
economic operators or between economic operators and public authorities are 
made later than agreed in the contract or laid down in the general commercial 
conditions. Such late payment negatively affects liquidity and complicates the 
financial management of undertakings (recital 3 of the directive). Late payment 
constitutes a breach of contract which has been made financially attractive to 
debtors in most Member States by low or no interest rates charged on late 
payments and/or slow procedures for redress (recital 12 of the directive). 
Additionally, fair compensation of creditors for the recovery costs incurred due to 
late payment is necessary to discourage late payment (recital 19 of the directive). 
The above provisions and recitals of the directive indicate that, in principle, a 
creditor must not be deprived of its right to interest and compensation so long as 
payment is made after the contractual deadlines and after it has fulfilled its 
obligations. Meanwhile, in the present case, although payment (set-off) for 9 of 
the 10 contracts was made after the expiry of those deadlines, the creditor will be 
deprived of the right to assert its claims. 
Under national law, the retroactive effect of set-off is justified by the fact that 
although one creditor is deprived of the right to claim interest, the other creditor 
who submitted the set-off declaration also loses the right to claim interest on its 
counterclaim for the period until the date on which the set-off became possible. In 
this (economic) sense, mutual interest is cancelled, as it were, rather than just the 
interest owed to one of the parties. In addition (in the context of the present case), 
if it is assumed that the set-off is effected at the earliest possible moment, the 
applicant to whom the set-off declaration is submitted would never have a claim 
for the payment of interest and compensation. Therefore, one of the creditors 
cannot be considered disadvantaged in that regard. 
However, that rationale may be insufficient in light of the aims of the directive. 
E. 
 
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Firstly, in the context of the present case, in addition to its right to charge interest, 
the applicant was also entitled to 9 compensations for recovery costs, while the 
defendant only presented one counterclaim for set-off, which (due to its amount) 
was to extinguish all 9 of the applicant’s claims for payment. Therefore, from an 
economic point of view, the retroactive effect of the set-off may result in one of 
the creditors being disadvantaged, since the other creditor is not entitled to an 
equal number of counterclaims for compensation. 
Secondly, in the context of the present case, it should be noted that the defendant’s 
counterclaim does not arise from a commercial transaction, but rather from 
damages. Recital 8 of the directive, meanwhile, stipulates that the directive should 
not regulate interest related to payments made as compensation for damages. This 
means that the applicant is entitled to higher interest (equal to the sum of the 
reference rate of the National Bank of Poland plus 10 percentage points under 
Article 4(3)(b) of the LCED) than the interest due to the defendant (equal to the 
sum of the reference rate of the National Bank of Poland plus 5.5 percentage 
points under Article 481 of the CC). Moreover, the defendant is not entitled to 
charge compensation under Article 10 of the LCED. The provision of Article 499 
of the CC does not allow that inequality in the mutual claim amounts to be taken 
into account. 
Thirdly, set-off is not an institution unique to the Polish legal order. Individual 
national regulations may provide for separate effects of set-off, define differently 
the moment when set-off becomes effective and what effects it produces in terms 
of the right to claim interest or compensation, and establish a different interest rate 
or amount of compensation for late payment in commercial transactions (the 
directive merely stipulates minimum standards in that regard). This runs the risk 
of divergence in terms of how, under the relevant national regulations, creditors 
could assert their claims pursuant to the normative acts implementing the 
directive, which would be contrary to the principle of harmonisation. 
Fourthly, the retroactive effect of set-off occurs by operation of law and is 
independent of the will of the creditor who is entitled to interest from commercial 
transactions and compensation. Of course, the parties could also effect a 
contractual set-off under which they agree the method of mutual settlement, but 
this type of set-off is not examined in the question referred. 
Fifthly, there is no doubt that the payment (set-off) was made after the date on 
which the claims became due, and thus the creditor could have taken steps to 
recover the receivables during that period, unaware that a set-off would occur in 
the future. Therefore, the creditor could have incurred certain (actual) recovery 
costs that it will never recover, as it will be prevented from doing so by 
Article 499 of the CC. 
The arguments cited above raise doubts as to whether the provision of Article 499 
of the Civil Code is consistent with the recitals of the directive and the rules 
introduced by Article 3(1) and (3)(a), and Article 6(1) and (2) of the directive. 
REQUEST FOR A PRELIMINARY RULING OF 26. 6. 2024 – CASE C-481/24 
 
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There are also doubts as to whether the rule that set-off is retroactive is 
incompatible with the directive in all cases, or whether its potential 
incompatibility must be examined by the national court from an economic point of 
view in each case. That examination could be done by calculating and comparing 
the sum of all claims (interest and compensation) to which both parties were 
entitled at the time of the set-off, and settling those sums in such a manner that the 
creditor who was entitled to higher interest and compensation is not 
disadvantaged. In other words, the application of the provision of Article 498(2) 
of the CC under which the set-off results in both claims cancelling each other up 
to the amount of the lower claim would also be appropriate with respect to interest 
and compensation. 
[…] [phrase that does not add meaningful content]