Judgment;Summary — ECLI:EU:C:2024:605
Date: 2024-07-11
Language of the case: Polish
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-279/23 – 1 
Case C-279/23 
Request for a preliminary ruling 
Date lodged: 
28 April 2023 
Referring court: 
Sąd Rejonowy Katowice – Zachód w Katowicach (Poland) 
Date of the decision to refer: 
7 March 2023 
Applicant: 
Skarb Państwa – Dyrektor Okręgowego Urzędu Miar w K. 
Defendant: 
Z. sp.j. 
  
ANONYMISED VERSION 
… 
ORDER 
7 March 2023 
The Sąd Rejonowy Katowice – Zachód w Katowicach, II Wydział Cywilny 
(District Court, Katowice-West, Katowice, Second Civil Chamber) … 
… 
following consideration on 7 March 2023 in Katowice 
… 
of the action brought by the applicant Skarb Państwa (Public Treasury), 
represented by the Dyrektor Okręgowego Urzędu Miar w K. (Director of the 
Regional Office of Measures in K.) 
against Z., a general partnership established in C., 
EN 
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concerning payment 
makes the following order: 
1. the following question is referred to the Court of Justice of the European 
Union for a preliminary ruling: 
Does 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 preclude national legislation under which a national court may 
dismiss an action for compensation for the recovery costs referred to in that 
provision on the ground that the debtor’s delay in payment was not 
significant or on the ground that the amount which the debtor was late in 
paying was small? 
2. … proceedings are stayed pending receipt of an answer to the question 
referred for a preliminary ruling. 
GROUNDS 
I. Referring court 
1 … [grounds setting out the referring court’s jurisdiction to refer a question for a 
preliminary ruling] 
2 The referring court is therefore a court which is entitled to refer a question for a 
preliminary ruling, pursuant to the second sentence of Article 267 of the Treaty on 
the Functioning of the European Union. 
II. National legislation applicable in the case 
3 Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions … 
(‘Directive 2011/7/EU’) was implemented in the Polish legal order by 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 (‘Law on counteracting excessive delays in 
commercial transactions’). 
4 The Law on counteracting excessive delays in commercial transactions provides: 
5 Article 2 
The provisions of this Law shall apply to commercial transactions to which the 
exclusive parties are: 
SKARB PAŃSTWA – DYREKTOR OKRĘGOWEGO URZĘDU MIAR W K. 
 
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(1) traders within the meaning of the Law of 6 March 2018 on 
undertakings …; 
(2) economic operators as referred to in Article 6(1) of the Law of 
6 March 2018 on undertakings; 
(3) entities as referred to in Articles 4, 5(1) and 6 of the Law of 
11 September 2019 on public procurement …; 
(4) members of a profession; 
(5) branches and representations of foreign traders; 
(7) traders from the Member States of the European Union, the Member 
States of the European Free Trade Association (EFTA), parties to the 
Agreement on the European Economic Area, or the Swiss Confederation. 
6 Article 4 
For the purposes of this Law: 
(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; 
(1a) ‘financial consideration’ means remuneration for the supply of goods 
or provision of a service in a commercial transaction; 
(2) ‘public entity’ means entities as referred to in Article 4 of the Law of 
11 September 2019 on public procurement; 
7 Article 6 
1. If the parties to a commercial transaction did not stipulate a time limit for 
payment in the contract, the creditor shall, without demand, be entitled to statutory 
interest for late payment in commercial transactions after the expiry of 30 days 
calculated from the date of the performance of the service to the date of payment. 
In the case referred to in Article 9(1), the expiry of 30 days shall be calculated 
from the date on which the examination is completed. 
8 Article 7 
1. In commercial transactions, with the exception of transactions in which the 
debtor is a public entity, the creditor shall, without demand, be entitled to interest 
for late payment in commercial transactions, unless the parties have agreed a 
higher rate of interest, from the date on which the payment became due until the 
date of the payment, if both the following conditions are met: 
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(1) the creditor has performed his or her contractual obligations; 
(2) the creditor has not obtained payment within the period laid down in 
the contract. 
9 Article 8 
1. In commercial transactions in which the debtor is a public entity, the creditor 
shall, without demand, be entitled to statutory interest for late payment 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 performed his or her contractual obligations; 
(2) the creditor has not obtained payment within the period laid down in 
the contract. 
10 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, without demand, be entitled to 
obtain from the debtor compensation 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. 
11 The Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) … provides: 
12 Article 5 
A right may not be exercised in a manner which would be contrary to its social 
and economic purpose or to the principles of communal coexistence. Any such act 
or omission on the part of the person entitled shall not be treated as an exercise of 
the right and shall not be protected. 
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III. Facts of the case 
13 The parties to the dispute before the referring court are: 
14 Applicant: the Skarb Państwa (Public Treasury), represented by the Dyrektor 
Okręgowego Urzędu Miar w K. (Director of the Regional Office of Measures in 
K.). The applicant is an entity within the meaning of Article 2(3) of the Law on 
counteracting excessive delays in commercial transactions. The referring court 
clarifies that in the present case the applicant is the ‘Skarb Państwa’, which is 
represented by the ‘Dyrektor Okręgowego Urzędu Miar w K.’. … [reference to 
the applicant’s legal personality and capacity to be party to legal proceedings]. 
15 The Okręgowy Urząd Miar w K. provides, as part of its activities, services relating 
to the calibration of measuring instruments. 
16 Defendant: Z., a general partnership (spółka jawna) established in C. The 
defendant is a general partnership and a trader within the meaning of Article 2(1) 
of the Law on counteracting excessive delays in commercial transactions. In 
connection with the economic activities which it carries out it avails regularly of 
the services provided by the applicant. 
17 The applicant claims that the defendant should be ordered to pay to it the 
equivalent in Polish złoty (PLN) of EUR 80, plus the interest provided for under 
Polish law. It stated that it was claiming the equivalent of two compensation 
payments for recovery costs as referred to in Article 7(1)(1) of the Law on 
counteracting excessive delays in commercial transactions, of EUR 40 each. The 
claim arises from the fact that the defendant was twice late in paying it 
remuneration for services provided. The defendant was late in paying PLN 246 
(approximately EUR 55) by 20 days and in paying PLN 369 (approximately EU 
80) by five days. 
18 The defendant contended that the action should be dismissed, pointing out that the 
debtor’s delay in payment was not significant and that the amount which the 
debtor was late in paying was small. It argued that, in the past, the defendant had 
been late on at least 39 occasions in paying remuneration for services provided by 
the applicant …. [reference to the applicant’s organisational structure]. As a result 
of those late payments, the applicant had brought an action against the defendant 
several times for compensation for recovery costs, and each time the courts had 
dismissed the actions on the ground that the debtor’s delay in payment was not 
significant or on the ground that the amount which the defendant had been late in 
paying was small. 
19 Despite at least 39 late payments, the applicant had never succeeded in obtaining 
compensation from the defendant for recovery costs. 
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IV. The relationship between the provisions of EU law and of national law 
applicable in the main proceedings 
20 Directive 2011/7/EU provides that Member States are obliged to ensure that the 
creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of 
EUR 40 (‘compensation’), where interest for late payment becomes payable in 
commercial transactions: 
(a) in which the creditor and the debtor are traders; 
(b) in which the creditor is a trader and the debtor is a public authority. 
21 Polish law provides that a creditor is entitled to obtain from the debtor 
compensation for recovery costs of between EUR 40 and EUR 100, where interest 
for late payment becomes payable in transactions: 
(a) in which the creditor and the debtor are traders; 
(b) where the creditor is a trader and the debtor is a public authority; 
(c) where the creditor is a public authority and the debtor is a trader. 
22 Polish law thus extends the entitlement to compensation to the situation described 
in subparagraph (c). The facts of the present case correspond precisely to the 
situation under subparagraph (c). This does not mean, however, that Directive 
2011/7/EU does not apply and that the case has no connection with EU law. The 
referring court notes that the intention of the Polish legislature was that 
compensation should be obtained on exactly the same terms, regardless of whether 
situation (a), (b) or (c) occurs. This means that, in order to assess whether the 
referring court may dismiss an action for payment of compensation on the ground 
that the debtor’s delay in payment was not significant or on the ground that the 
amount which the debtor was late in paying was small in situation (c), it is 
necessary to determine whether the referring court may dismiss such an action in 
situation (a) or (b). That, in turn, requires an interpretation of EU law, as situations 
(a) and (b) are expressly provided for in Directive 2011/7/EU. 
23 It should be noted that the Court of Justice of the European Union has repeatedly 
held that it has jurisdiction to give preliminary rulings on questions concerning 
European Union law in situations where the facts of the cases being considered by 
the national courts were outside the direct scope of that law but where those 
provisions had been rendered applicable by domestic law, which adopted, for 
internal situations, the same approach as that provided for under European Union 
law. According to the settled case-law of the Court of Justice, in those 
circumstances it is clearly in the interest of the European Union that, in order to 
forestall future differences of interpretation, provisions or concepts taken from 
European Union law should be interpreted uniformly, irrespective of the 
circumstances in which they are to apply (for example, the judgments: Allianz 
Hungaria Biztosltó and Others, C-32/11, EU:C:2013:160, paragraph 20; FNV 
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Kunsten Informatie en Media, C-413/13, EU:C:2014:2411, paragraph 18; and 
Maxima Latvija, C-345/14, EU:C:2015:784, paragraph 12). 
V. Reasons why the referring court had doubts as to the interpretation of 
EU law 
24 The approach consistently taken by the Polish courts in their case-law is to 
dismiss actions for compensation on the ground that the debtor’s delay in payment 
was not significant or on the ground that the amount which the debtor was late in 
paying was small. The basis for dismissal of the action in each case is Article 5 of 
the Civil Code, the content of which is quoted above. The Polish courts hold that 
demanding payment of compensation in such situations is ‘sprzeczne z zasadami 
współżycia społecznego’ (contrary to the principles of communal coexistence) (a 
Polish legal term with a similar meaning to the terms: ‘immoral’, ‘reprehensible’, 
‘contrary to accepted principles of morality’). 
25 The abovementioned case-law was initiated by a single sentence contained in the 
grounds for the resolution of the Sąd Najwyższy (Supreme Court) of 11 December 
2015 … In those grounds, the Sąd Najwyższy held that the courts should examine 
in each case whether or not the creditor, in demanding payment of the 
compensation, is acting in a manner contrary to the principles of communal 
coexistence. 
26 Although the approach taken in that regard by the courts in their case-law 
sometimes differs, an analysis of the case-law carried out by the referring court 
shows that Polish courts generally accept that the amount which a debtor is late in 
paying is not significant if it does not exceed the equivalent in Polish złoty of 
EUR 100 to 300. At the same time, Polish courts accept that the delay should be 
considered minor if it does not exceed two to six weeks. In that regard, it is not 
necessary for both conditions concerning conduct ‘contrary to the principles of 
communal coexistence’ to be met. Even if the amount which the debtor was late in 
paying was substantial, but the delay was minor, Polish courts usually dismiss 
actions for compensation. Similarly, if the delay was significant but the amount 
involved was small, Polish courts also usually dismiss such actions. 
27 The approach taken by the Polish courts in their case-law, as described by the 
referring court, is perfectly illustrated by the history of the disputes between the 
parties concerned, which are the applicant and the defendant in the present case, 
as set out above. The defendant was late in paying remuneration to the applicant 
on at least 39 occasions, but in spite of this the Polish courts have never ordered 
the defendant to pay compensation to the applicant. 
28 In considering the present case, the referring court had doubts as to whether 
national legislation which allows an action for payment of compensation to be 
dismissed on the grounds set out above is compatible with Directive 2011/7/EU. 
29 The referring court’s doubt arises for the following six reasons: 
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30 First, Directive 2011/7/EU does not provide for any exception to the rule that a 
creditor should be compensated if the debtor is late in paying. Such exceptions are 
provided for only in national law. At the same time, those exceptions do not 
protect any fundamental values which could not be reconciled with the obligation 
to pay compensation. On the contrary, the main reason why those exceptions are 
provided for is the custom in Poland (and probably also in certain other Member 
States) of making small payments late, particularly in business transactions. 
Consequently, the Polish courts have concluded that a creditor who disregards that 
custom of accepting minor delays and demands compensation is acting in a 
manner contrary to the principles of communal coexistence. However, protection 
of the custom of accepting minor delays is not, in the view of the referring court, 
an essential value which could justify the introduction in national law of an 
exception to the clear, precise and unconditional rule laid down in Directive 
2011/7/EU. 
31 Second, the exceptions to the rule that the creditor is entitled to compensation 
provided for in Polish law are contrary to the objective of Directive 2011/7/EU, as 
set out in recital 12 thereof. That recital states that ‘a decisive shift to a culture of 
prompt payment, including one in which the exclusion of the right to charge 
interest should always be considered to be a grossly unfair contractual term or 
practice, is necessary to reverse this trend and to discourage late payment. Such a 
shift should also include the introduction of specific provisions on payment 
periods and on the compensation of creditors for the costs incurred, and, inter alia, 
that the exclusion of the right to compensation for recovery costs should be 
presumed to be grossly unfair.’ The exceptions provided for in Polish law and the 
objectives underlying the introduction thereof are contrary to the [directive’s] 
objective of creating a ‘culture of prompt payment’. The exceptions to the 
obligation to pay compensation have the effect not so much of creating a ‘culture 
of prompt payment’ as of perpetuating a culture of acceptance of late payment. 
Those exceptions therefore have the effect of undermining the practical 
effectiveness (effet utile) of EU law and, as such, are contrary to it. 
32 Third, the exceptions to the obligation to pay compensation make illusory the rule 
laid down in the above-cited recital 12 of Directive 2011/7/EU that ‘the exclusion 
of the right to compensation for recovery costs should be presumed to be grossly 
unfair’. Traders in Poland do not have to incorporate into contracts clauses 
excluding the right to compensation for recovery costs in situations where the 
debtor’s delay in payment was not significant or where the amount the debtor was 
late in paying was small since the exclusion of the right to such compensation has 
been introduced in the case-law of the Polish courts. 
33 Fourth, in the view of the referring court, the obligation to pay compensation is 
most relevant precisely in cases where the debtor’s delay in payment was not 
significant or the amount which the debtor was late in paying was small. It is 
sometimes argued in the case-law of the Polish courts that where the debt is a 
small amount, for example the equivalent of EUR 100 to 300, the need for the 
debtor to pay the equivalent of EUR 40 on account of late payment is an excessive 
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sanction. In the view of the referring court, it is primarily with such cases in mind 
that the European legislature laid down the obligation to pay compensation. In 
cases where the debtor’s delay is substantial or the amount of debt is large, the 
debtor is obliged to pay high rates of interest, often amounting to thousands or 
even hundreds of thousands of euros. In those situations, the obligation to pay a 
compensation of EUR 40 does not have any mobilising effect on the debtor at all. 
The opposite is true in situations where the debtor’s delay in payment was not 
significant or where the amount that the debtor was late in paying was small. 
34 Fifth, the objective of Directive 2011/7/EU is to combat late payment throughout 
the internal market (recital 36 of Directive 2011/7/EU). In order to achieve that 
objective, the European legislature laid down uniform rules on creditors acquiring 
rights to obtain compensation. However, the rules on acquiring rights to 
compensation will not be uniform, and therefore in accordance with the intention 
of the directive’s authors, if individual Member States introduce their own 
exceptions to the obligation to pay compensation which do not arise from the 
directive. 
35 Sixth, the principle of procedural autonomy is irrelevant for the purposes of 
considering whether a rule of national law allowing an action for compensation to 
be dismissed on the grounds referred to in the question is compatible with EU law. 
Article 5 of the Kodeks Cywilny (Polish Civil Code), which forms the basis for 
dismissing such an action, is a rule of substantive, not procedural, law. Courts 
dismissing an action for compensation do so not on formal grounds, but because, 
in their view, the action has no substantive legal basis, that is to say, because the 
applicant has no claim at all to raise. 
VI. Positions of the parties on the question referred 
36 … [references to procedure] 
VII. Staying of proceedings 
37 … [references to procedure]